Tuesday, August 8, 2017

Challenging the assumption that an innocent person would not plead guilty

I recently challenged on appeal the validity of my client’s guilty plea based on my client’s questionable mental capacity and ability to understand the plea bargaining process. Ignoring the import of my client’s diminished capacity, the prosecutor on appeal (in typical fashion) argued that “one could assume” my client would not have “readily” admitted to the offense in open court if he had not committed it.

It is remarkable that this argument is still being made given the impressive number of wrongful convictions overturned throughout the country involving false confessions and guilty pleas. And I stated just that in my reply brief, while parenthetically citing statistics from the National Registry of Exonerations and the Innocence Project, before making arguments more specific to my client’s case.

The National Registry of Exonerations reported in November 2015 that 15% of the then-known exonerees pleaded guilty and suggested that the actual number of innocent persons who pleaded guilty is significantly higher (National Registry of Exonerations, Innocents Who Plead Guilty, Nov. 24, 2015, http://www.law.umich.edu/special/exoneration/Documents/NRE.Guilty.Plea.Article1.pdf). According to its website 382 of the 2,078 exonerations currently in the in the Registry (18%) pled guilty.

The Innocence Project has a page on its website, entitled “When the Innocent Plead Guilty,” that describes the cases of 31 of its exonerees who pleaded guilty to crimes they did not commit (a shocking number of which were homicides and sex offenses) and served a combined total of more than 150 years in prison before they were exonerated (Innocence Project, When the Innocent Plead Guilty, Jan. 26, 2009, https://www.innocenceproject.org/when-the-innocent-plead-guilty/).

In November 2014, United States District Court Judge Jed S. Rakoff (Southern District of New York) wrote an article for The New York Review of Books, entitled “Why Innocent People Plead Guilty” (available at http://www.nybooks.com/articles/2014/11/20/why-innocent-people-plead-guilty/), in which he recognized the shocking prevalence of false guilty pleas and advocated for a pilot program of judicial involvement in the plea bargaining process in an effort to reduce the epidemic. While I’m not sure I agree that judicial involvement would serve as a cure, Judge Rakoff’s observations about false guilty pleas are worth quoting:

[T]he prosecutor-dictated plea bargain system, by creating . . . inordinate pressures to enter into plea bargains, appears to have led a significant number of defendants to plead guilty to crimes they never actually committed. . . . Presumably they did so because, even though they were innocent, they faced the likelihood of being convicted of capital offenses and sought to avoid the death penalty, even at the price of life imprisonment. But other publicized cases, arising with disturbing frequency, suggest that this self-protective psychology operates in noncapital cases as well, and recent studies suggest that this is a widespread problem. . . .
It is not difficult to perceive why this should be so. After all, the typical person accused of a crime combines a troubled past with limited resources: he thus recognizes that, even if he is innocent, his chances of mounting an effective defense at trial may be modest at best. If his lawyer can obtain a plea bargain that will reduce his likely time in prison, he may find it “rational” to take the plea.
* * * *
While, moreover, a defendant’s decision to plead guilty to a crime he did not commit may represent a “rational,” if cynical, cost-benefit analysis of his situation, in fact there is some evidence that the pressure of the situation may cause an innocent defendant to make a less-than-rational appraisal of his chances for acquittal and thus decide to plead guilty when he not only is actually innocent but also could be proven so. Research indicates that young, unintelligent, or risk-averse defendants will often provide false confessions just because they cannot “take the heat” of an interrogation. Although research into false guilty pleas is far less developed, it may be hypothesized that similar pressures, less immediate but more prolonged, may be in effect when a defendant is told, often by his own lawyer, that there is a strong case against him, that his likelihood of acquittal is low, and that he faces a mandatory minimum of five or ten years in prison if convicted . . . —but that, if he acts swiftly, he can get a plea bargain to a lesser offense that will reduce his prison time by many years.

For whatever it’s worth (which may not be much since I have only been in practice for less than two years), I have some thoughts on the practical implications of this problem – many of which are (or should be) obvious.

To start, when a client confesses to the police, we should be open to the possibility that the client did not actually commit the confessed-to offense. While it may be more often the case that a client who initially claims innocence turns out to be guilty, we cannot foreclose the possibility that the opposite may be true. Thus, we should be diligent in asking those clients who confess to describe for us what actually happened, what they told the police, and what the circumstances were surrounding their confession – and not just rely on police reports, recorded-interrogations, and officer testimony to do that job. And we often need to do so more than once, since we all know that it takes time to earn a client’s trust – if we ever earn it at all.

Before we recommend that a client plead guilty, we need to make sure that it is truly in the client’s best interest to do so and not simply more convenient. We need to know whether we are capable of mounting an effective defense and be careful that we are not telling a client that their chances of acquittal are lower than they are. And if we know or suspect that a client has limitations, we need to do our due diligence to make sure that the client understands what a guilty plea connotes and its consequence.

Although these suggestions come across as obvious, we need to honestly ask ourselves how often we fail to take the time to actually put these things into practice.

We also have what I believe is an obligation to educate the public of the prevalence of false confessions and guilty pleas in an effort to change the public’s perception. As Judge Rakoff recognizes in his article,

Americans are notoriously prone to making moral judgments. Often this serves salutary purposes; but a by-product of this moralizing tendency is a punitiveness that I think is not likely to change in the near future. Indeed, on those occasions when Americans read that someone accused of a very serious crime has been permitted to plea bargain to a considerably reduced offense, their typical reaction is one of suspicion or outrage, and sometimes not without reason. Rarely, however, do they contemplate the possibility that the defendant may be totally innocent of any charge but is being coerced into pleading to a lesser offense because the consequences of going to trial and losing are too severe to take the risk.

One cannot assume that an innocent person would not confess, and one cannot assume that an innocent person would not plead guilty.

Defense attorneys, especially those who handle appeals and post-conviction motions, as well as civil rights attorneys who handle wrongful conviction suits, should be prepared to challenge prosecutors, opposing counsel, judges, and members of the general public who try to argue otherwise.  Members of the defense bar also should be careful not to make the same assumptions. Otherwise, in my opinion, we do a disservice to our clients.