Plea Bargaining in Capital Cases

December 30, 2014

Tuesday, December 30, 2014

Good afternoon:

I am now writing articles for the main page at Firedoglake (firedoglake dot com) during the owner’s hiatus from the site. I am volunteering my time there. My articles are published on Monday, Wednesday and Friday at 6 pm EST. I will continue to publish articles here, although you may not notice any change except I will be posting a little later each day and taking a day off now and then.

This article about plea bargaining was prompted by a comment to one of my posts at the Lake. The person who posts under the name Eternal Vigilance asked the following question:

Would an ethical lawyer still advise an innocent client to go to trial even when the trial might not be fair and the consequence of losing is death?

Here’s my answer:

Great question. Tough question. Please forgive the long response.

You have to keep in mind that the lawyer rarely knows for certain whether the client is innocent, unless there is an exculpatory DNA result, because clients have been known to lie to their lawyers. I went with the flow because I did not judge my clients.

I rarely confronted a client, unless the evidence against him was so overwhelming that there was no chance of success and the penalty for conviction was severe, as in a death case.

Ultimately, it’s the client’s decision to go to trial or not. Even guilty people have a right to go to trial and force the government to overcome the presumption of innocence by proof beyond a reasonable doubt. The lawyer can’t put them on the stand to deny guilt, if they have admitted guilt. That’s unethical and a lawyer who does that can lose his license for doing that.

I used to estimate the probability of success after reviewing all of the evidence and possible strategies to counter it. I would discuss that with the client and let them decide whether to go to trial. I would tell them if there were no realistic chance of winning and discourage them from going to trial, if they could get a better result by pleading guilty. If they couldn’t get a better result by pleading guilty, I told them I was willing to go for it, if they were. Some opted to plead guilty. Others opted to go to trial.

I never counseled an innocent client to plead guilty and never would in any case, including a death penalty case. And this would be true even if I had reason to believe we were dealing with a corrupt prosecutor and cops. If I believed that were the case, I would certainly tell my client and explain why I believed that to be true.

The problem is the criminal justice system is corrupt and no one can reasonably assume otherwise. That’s why I don’t practice law anymore.

Another consideration is a client has to provide a factual basis under oath to support a guilty plea. For example, “On or about (fill in the date) in (fill in the place) I took $50 from (fill in the victim) by threatening him with a knife.” A lawyer cannot ethically advise an innocent client to perjure himself by saying he did something that he did not do.

There is a type of guilty plea, called an Alford plea, in which a defendant concedes that the government has enough evidence to convict him if the case goes to trial, so he is going to plead guilty to avoid a trial and take advantage of the government’s plea offer. I don’t like these pleas, especially in cases where the plea deal requires the defendant to enter and complete a counseling program because the client is likely to be kicked out of the program for being not amenable to treatment because he refused to admit that he committed the offense to which he pled guilty.

Alford pleas (i.e., pleading guilty without admitting guilt) are equivalent to wanting to have your cake and eat it too. They promote avoiding responsibility and the reality is that a guilty plea is a guilty plea is a guilty plea, as far as the record is concerned. There is no real advantage to them.

Probably more information than you wanted to know, but the subject is complex and fascinating and probably should be the subject of a separate article.


Loughner: Defense and Prosecution Benefit from Guilty Plea in Exchange for No Death Penalty

August 6, 2012

According to recent news reports, Jared Laughner is now competent and will plead guilty in federal court tomorrow (Tuesday) in exchange for the prosecution’s agreement not to seek the death penalty. No additional details were reported. I have written the following article based on the assumption that these reports are true.

I believe both sides and the public benefit from this agreement for the following reasons.

The defense benefits because there is a significant probability that it would fail to convince the jury that Mr. Loughner was insane when he shot all of the victims. As I have explained in previous articles, the legal test for insanity requires proof that a defendant was suffering from a mental disease or defect when he committed the crime, such that he was unable to distinguish between right and wrong and conform his conduct to the requirements of law.

Most mentally ill defendants, including those who were psychotic and delusional when they committed the crime, cannot satisfy this test because they knew they did something wrong and would get in trouble with the law, if they were caught. That is, the defense will likely fail if there is any evidence that the defendant knew he was committing a crime or if he attempted to conceal evidence of the crime and his participation in it. In addition, a defendant does not go free, if he is found not guilty by reason of insanity.

The prosecution benefits from the agreement because it achieves the most probable outcome of a trial without having to expend all of the effort, time and money necessary to try the case. A guilty plea also avoids a lengthy appeal process and establishes a finality to the legal process. That in turn creates an important opportunity for victims and their families to begin the process of healing themselves and moving on with their lives.

There is no doubt that Mr. Loughner was psychotic and delusional when he committed the crimes and, even if the jury rejected the insanity defense and found him guilty, there is a significant probability that the jury would conclude that his impaired mental condition when he committed the crimes was a sufficient mitigating circumstance to justify sentencing him to life in prison instead of sentencing him to death.

The public benefits from the agreement because it produces a fair and equitable result, given Mr. Loughner’s serious mental illness and disabilities. Schizophrenia is a horrific disease that destroys lives by causing delusions that the person cannot distinguish from reality. Even though medication can reduce and often prevent delusions, it has unpleasant zombie-like side effects that eliminate joy and excitement. Since schizophrenia is a debilitating disease that no one would voluntarily choose, basic human decency, empathy and mercy call for a life sentence, rather than the death penalty.

Before the Court can accept a guilty plea, it must determine whether Mr. Loughner is competent. Mr. Loughner had refused to take anti-psychotic medication until the Ninth Circuit recently affirmed the trial court’s order to medicate him forcibly, if necessary. I think we can reasonably conclude that he has taken the medication and is now competent since this hearing would not have been scheduled, unless he were competent and his lawyers were able to explain and discuss the terms of the plea agreement, including the important constitutional rights he will be giving up, if he pleads guilty.

We can expect one or more mental health experts will testify tomorrow that he is competent. That is, that he is oriented as to time and place, understands his legal predicament and the possible consequences if convicted, can tell the difference between the truth and a lie, can communicate with his lawyers and assist them to represent him, is capable of making decisions that are in his best interest, and understands the obligation to answer the Court’s questions truthfully.

Assuming the Court finds him competent, it will ask him a series of questions about the guilty plea to determine if he has read and reviewed it with his lawyers, understands all of its terms, and knows that he will give up the right to go to trial if he pleads guilty.

After confirming that he has knowingly, voluntarily, and intelligently decided to waive his right to trial in order to receive the benefit of his agreement with the prosecution, the Court will ask him to state in his own words what he did.

Defendants usually follow the advice of their lawyers to provide a simple bare-bones set of facts that support the charges to which they are pleading guilty.

If the statement is sufficient, the Court will accept the guilty plea and approve the plea agreement.

Normally, sentencing takes place six weeks later to allow time for the United States Probation Office to prepare a report regarding the defendant’s role in the offenses, the applicable sentencing ranges for the offenses, and a sentencing recommendation. Since the parties and the Court will have agreed to the sentence, there will not be any need for the report. Do not be surprised if the Court waives the presentence report with the agreement of the prosecution and the defense and proceeds directly to impose a life sentence.

I believe this probably is a fair, just and equitable resolution of the case. I say “probably” because I do not know if the State of Arizona is satisfied with the outcome. The United States lacked jurisdiction to prosecute Mr. Loughner for four of the murders because those victims were not federal employees carrying out their official duties when they were killed.

The four private citizens were:

(1) Christina Taylor-Green (age 9);

(2) Dorwin Stoddard (age 76);

(3) Dorothy Murray (age 76); and

(4) Phyllis Schneck (age 79).

The State of Arizona has jurisdiction to prosecute Mr. Loughner for those four murders, since the crimes were committed in Arizona.

The State of Arizona also has a death penalty and it could prosecute Mr. Loughner for those murders and seek the death penalty, if he is convicted.

I believe the defense has attempted to do everything that it possibly can to persuade the state prosecutors to agree not to seek the death penalty against Mr. Loughner, if he pleads guilty to the federal charges.

I suspect they have decided not to seek the death penalty because they probably realize they would have no better chance than the federal prosecutors of convincing a jury to sentence Mr. Loughner to death, given the powerful mitigation evidence of mental illness.

Should this be the case, they may do nothing or they may have already agreed to charge Mr. Loughner with the four murders and the remaining crimes that the United States lacked jurisdiction to prosecute, but forego seeking the death penalty, if he pleads guilty to those offenses.

Although such an agreement would not add any time to his sentence, it might appease the prosecution’s desire to obtain convictions of record for crimes that Mr. Loughner committed but could not be prosecuted for in federal court due to lack of jurisdiction.

Mr. Loughner would not have much incentive to plead guilty in federal court to avoid the death penalty only to have Arizona seek the death penalty. Since he has agreed to plead guilty, I am inclined to believe that the State of Arizona has agreed not to seek the death penalty.

Three party global resolutions are tough, but not impossible to pull off. We will find out if that happened tomorrow.


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