Fault Lines
20 January 2019
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Pleading While Blind

Feb. 1, 2015 (Mimesis Law) — Last week saw an interesting debate at Fault Lines between criminal defense attorney Noel Erinjeri and prosecutor Andrew King. Their general departure was on the issue of whether the decision to go to trial or take a plea deal is a fair one for defendants.  More specifically, are defendants who exercise their constitutional right to trial penalized should they lose that trial, and what impact does this have on plea bargaining?

A true understanding of the dangers of trial can no longer be separated from our growing knowledge that justice is often perverted by wrongful or unjust convictions. It is within this landscape that Erinjeri wrote about what he calls the “trial tax.”

The problem isn’t going to trial, as such. The problem is going to trial and losing. If the difference is between 1 year for a guilty plea, versus 10 years after losing at trial; and you only have a 50% chance of winning….well, do the math.

Every defense attorney has had this conversation with a defendant at some point or another. Most have probably had conversations with defendants in which they tried to talk their client out of a plea, but the defendant didn’t want to run the risk.

But back up a second. Why should there be such a disparity between a guilty plea and a guilty verdict? That’s the trial tax. From the prosecution’s (and most judges’) view, it is an incentive to prevent criminals from wasting their valuable time. From the defense perspective, it’s to punish the defendant for exercising his constitutional rights.

He is right. The potential sentence that could follow a guilty verdict has an extremely deterrent effect on the right to trial, for guilty and innocent alike.  Countless criminal defendants have taken a plea because losing the case is preferable to losing the trial.

Enter Andrew King, who sees things differently. King sees the trial conviction as the base line, with the offer of less time representing a “plea discount.”

So, in this example, you have a defendant whose guilt is beyond a reasonable doubt facing an uncertain sentence that must fall within in a large range. In such a case, it’s in the defendant’s self-interest to minimize the top-end of prison exposure. (“Do the crime, do the time” is replaced with “did the crime, but get less time.”) Thus, when the defendant readily acknowledges guilt, the defendant gets a plea discount–not a trial tax. The defendant is gaining a benefit through reduced prison term exposure. Such a defendant is not suffering a real loss, which is why it’s not a true penalty but rather a discount.

He is right. Prosecutors will sweeten the deal with a reduced charge to avoid their own uncertainty.  Reasonable doubt has been known to set even the guilty free.

But while both Erinjeri and King are right, both miss the true culprit. Plea bargaining, the vehicle by which the vast majority of criminal cases avoid trial, is not in itself the problem.  Plea bargaining is not inherently flawed.  But the system within which plea bargaining operates has a cancer that turns a process that should provide a benefit to the defendant into a scenario where he must choose between two bad options.  While blindfolded.

The plea bargaining process usually occurs with the defendant mostly in the dark. The prosecutor, who holds all the evidence, can use their knowledge of that evidence to calculate what type of plea he thinks is appropriate for a certain case.  Or, for the scruple-less prosecutor, he can hold onto his lack of evidence like a four-card straight, hoping the defendant will fold.  The defendant, regardless of prosecutorial integrity, must decide between plea deal or trial without access to that same evidence and information.

It begins at arraignment, the first time a defendant stands before a judge. While more serious cases like felonies rarely see plea bargaining at this initial appearance, more minor charges like misdemeanors can often see a plea deal offered on the first court date.  The chance to work out a deal so early in the case might not sound so bad.  However, at the arraignment stage, the only information that the defendant has available to him is the bare-bones story from the prosecutor.

What is completely missing from an arraignment is actual evidence. Right off the bat, scores of criminal defendants are asked to decide whether to give up a host of vital rights in order to take what might be the best offer they will get.  The same system that loves to toss around such principles as “due process” and “fairness” forces many defendants to make crucial decisions that can impact the rest of their lives without even giving them the opportunity to find out if the government has any evidence at all against them.

Once a case moves on from arraignments, the plea bargaining stakes increase as information is provided to the defendant in dribs and drabs. Defendants can wait months to receive something as basic as a police report, even though these documents are customarily provided to the prosecution on day one.  In New York, grand jury testimony is often concluded within a week of arraignment.  The transcript of that testimony, often the most important evidence in a case, is rarely handed over before trial.

Then there is the “one time offer” by the prosecutor. If the defendant does not take two years today, then it goes up to five on the next court date.  If the HD video that clearly shows the defendant robbing that convenience store clerk has already been turned over, then this hardball tactic is fair game.  But when a prosecutor drops a “one time only” offer before the defendant has been given a chance to examine the evidence against him, then this is not a tactic.  It is a threat, and a perversely unfair one at that.

Prosecutors, when confronted with the unfairness of requiring a defendant to plead while blind might intimate that the defendant’s own knowledge should guide his decision. The defendant knows if he did it.  This reasoning might suffice were we operating within a repentance-based justice system.  Fortunately our criminal justice system is evidence based, at least in rule and theory.  If the defendant is to be convicted, the government should have the evidence to prove it.  But all too often, that evidence (or lack thereof) is intentionally kept away from the defendant for as long as legally possible.  This turns the “bargain” of plea bargaining into providing the defendant the opportunity to accept a bad certainty instead of awaiting the potentially terrible unknown.

The problem with plea bargaining has never been the offer of a lesser charge to secure a conviction while requiring substantially less work to get to that conviction. The defendant in that scenario receives the benefit of a reduced charge and less time.  This entire system implodes in upon itself, though, when only one side in the decision making process is privy to all of (or even some of) the relevant evidence.

So what to do? The solution is actually quite simple.  Speed up the discovery process.  A lot.  Instead of a loose time frame that is counted in years, there is rarely a legitimate reason that the discovery process should extend past a few months.  One illegitimate reason that extends the process is the fact that delay is an incredibly powerful tool for the government.  A person who is incarcerated loses hope the longer they are locked up, regardless of guilt or innocence.  Plus, if given the choice between a time served plea to get out of jail or going to trial and risk staying in for years longer, who are we fooling to think that rights, guilt or justice are at the forefront of that defendant’s decision?

The issue is not the trial tax or the plea discount. The issue is that in so many cases, the protection of the highest burden of proof our law requires is removed by a bastardized discovery process that holds defendants hostage until they relinquish their rights, whether they are guilty or not.

4 Comments on this post.

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  • Noel Erinjeri
    1 February 2016 at 10:52 am - Reply

    “The plea bargaining process usually occurs with the defendant mostly in the dark. … The defendant, regardless of prosecutorial integrity, must decide between plea deal or trial without access to that same evidence and information.”

    This has not been the case in jurisdictions where I have practiced. In almost all of my cases, discovery has been provided before the defendant has to make a plea decision. There are a few exceptions, but generally speaking, when counseling my clients about whether to take a plea, the prosecutor and I had access to the same information.

    • Ken Womble
      1 February 2016 at 2:46 pm - Reply


      What is the timeframe on your cases? In New York, we generally are not provided with complete discovery for 8 or 9 months minimum.

      • Noel Erinjeri
        1 February 2016 at 6:10 pm - Reply

        In Missouri, generally speaking, a few days to a few weeks. Anything over a month was unusual. 8 or 9 months would be unthinkable. The major exception was lab results, but we’d have everything else (police reports, video, etc.) long before then. Offer letters came with the discovery, and we generally had time to talk to the clients about it before deciding how to proceed.

        In Michigan, the time scale is similar though the details are a bit different–offers often aren’t made until a later stage in the case.

        It’s mind-boggling that judges would expect defendants to decide to plead or fight without seeing the discovery.

        • Scott Jacobs
          1 February 2016 at 7:30 pm - Reply

          And yet…