"We have evolved into a system of pleas, rather than a nation of trials."
-Supreme Court Justice Antonin Scalia
If a conservative is a liberal who has been robbed, than a liberal is a conservative who has been arrested. According to 2005 Bureau of Justice figures, between 90 to 95 percent of cases are resolved thru the plea bargaining process. Many people think this works in the favor of the accused. Actually, the opposite is true. It has become the preferred method of disposal of massive caseloads for both prosecutor and public defender alike.
The Judicial System has long been not about dispensing justice. It is about conflict resolution. It is war, between prosecution and defense lawyers, and the spoils are careers, paychecks, prestige, and advancement. The victim, the accused, they are merely the pawns in the game.
Achieving actual justice is and expensive endeavor, and it does little to advance the careers of those who participate in the process. A prosecutors career trajectory is based on a high conviction rate. Judges who are accused of being 'soft on crime' are vulnerable to demagoguery from politicians come election time, and Public Defenders, (Prison Deliverers) who are often prosecutors in waiting, are hired and paid by the same State that is trying to put you away.
The State does not have the time, money, or any incentive to properly vet each and every case that comes before it, so what has evolved is a system where the states attorney and the Public Defender use the plea bargain as a way to bypass proper investigative procedure and the significant expense of a trial by jury. This is done using a coercive process of intimidation that utilizes lies, the threat of lengthy "enhanced" prison sentences, and carefully arranged legal technicalities to bully and frighten defendants into accepting whatever final outcome the State has decided to impose.
Typically, the defendant is presented with a long list of charges, often different re-wordings of a single action, that carry an imposing array of lengthy sentences. This is called the "greater or lesser included offense". Your public Defender then meets with the States Attorney to determine precisely what kind of result the State desires. Often, there is a trade off: the Prosecutor will give on one defendant, and in exchange, will give the PD the opportunity to negotiate a better deal for certain clients. (I'll give you this one, if you give me that one).
The PD is not there to win your case, or to vigorously pursue your acquittal. They are there to expedite the process of running the enormous caseloads quickly and efficiently through the system. Often, they receive a stipend from the State for cases that are quickly expedited. They often do only a cursory investigation, rarely (if ever) depose witnesses, and generally will meet with you briefly, and only to explain your options and present the states offer. Discussion of strategy, your arrest, and the actual subtleties of the case are rarely topics of discussion unless you do some legal research on your own, a very difficult proposition with the limited law library time, copying facilities, investigative resources, and counseling available to those who are locked up. This is because these things are expensive. (Of course, there is no expense spared by the state to obtain your conviction). In County lockup, where the accused await trial, you can usually tell which resident has a Public Defender. They are the ones who are still there, or have been shipped to IDOC facilities..
Nor will the prosecution properly investigate whether there is a reasonable basis for the charge. Once a case is in their hands, there is every disincentive to learning any additional "facts", that may serve to undermine all the work they have put into it, as well as make it more difficult to prosecute any new suspects in the crime (Your honor, the prosecution has already had ample evidence to accuse someone else of this crime. Can't they get their story straight?") It is easier and cheaper to intimidate the suspect they have into accepting an offer.
One legal tool prosecutors can use to strong-arm defendants is the threat of "sentence enhancements". The court employs Sentencing Officers, who assemble information for the judge to consider when deciding how much time a defendant will be required to serve. Although there are sentencing guidelines that a judge must adhere to, sentence enhancements are in addition to, and not included in these guidelines. Sentencing information may include things like your work history, family situation, previous criminal record, etc. As a practical matter, though, the information in the report is provided entirely by the prosecution and the police. One of the factors typically considered is "relevant conduct". This is where time can be added to a sentence for actions that the defendant has not even been shown to have committed. In one example, a man was convicted of conspiring against the US Postal Service, but twenty three other more serious counts had to be dropped for lack of admissible evidence. In the sentencing report, however, these charges mysteriously reappeared as relevant conduct, without any determination of any kind that the accused engaged in it. The two year sentence was "enhanced" to five years. Not only is this a form of double jeopardy, it is an obvious violation of the Sixth Amendment right to a trial by jury.Although the Supreme Court has ruled that "...any factor...that allows for extending a defendants sentence must be admitted to by the defendant, or proved to a jury" (Blakely v. Washington) the precise wording has allowed prosecutors ample room to manoeuvre, and according to the most recent inventories, 44% of current sentencing have involved sentence enhancements. For PDs and prosecutors who are looking to entice a defendant into taking a proffered deal, the threat of a judge actually imposing a stiffer sentence than mandated is a very persuasive argument.
Another little prosecutorial trick is "cross-referencing". In cross referencing, a defendant can have his sentence enhanced for having any kind of demonstrable relationship to a crime committed by another person. A business owner bought a cell phone as a favor for a friend who had poor credit, who later used it to deal in rock cocaine. Afraid that he might be implicated in the drug charge, he testified that he himself had never used the phone. Later, he reversed himself, admitting that he and the friend sometimes shared the phone. He was convicted of perjury, which would have netted him a sentence of about a year, but by using "cross referencing", prosecutors demanded a sentence based on the drug dealing, something he was not even accused of doing, much less being convicted of. Under this sentence enhancement, he was now looking at nearly ten years, until an outraged appellate judge determined that while he could still be sentenced as a drug offender, he would only enhance his one year perjury sentence to three and a half years.
These practices essentially give prosecutors "twos bites at the apple". If a case cannot be proven in court, prosecutors can still send a defendant away during the sentencing process, even though they were unable to prove the charges they would like to have. These unproven charges then follow the accused around in a pernicious document known as a "Statement of Fact". This is a narrative prepared by the states attorney that is attached to the defendants permanent record which presents the prosecutions description of the "actual facts" of the case, regardless of the outcome of any trial or plea arrangement. This account can then be used as a basis for determining conditions of parole, what type of facility the inmate will be housed in, or the determination of any "good time" credits the inmate may (or may not) be eligible to receive. It also follows him around in perpetuity as the "real' story: the defendant may have beat the rap, but here's what he "really" did. The State has created a fact, and once it's on the official record, it is now the truth,regardless of what the real truth is. The State does a lot of that: if the State says it's true, it has now become true.
By the way, yes, a defendant is allowed to challenge his pre-sentencing report, but by doing so, he risks any credit he may have received for co-operating with the process. And though in a trial situation, he is allowed to present factors in mitigation, in a plea arrangement, it never comes to that point. There is no discretion, only the deal.
Speaking of perjury, the State, at all levels, is legally allowed to lie at any stage of the process in order to obtain convictions. This has been affirmed many times by the Supreme Court. (Frazier v. Cupp, 394 US 731,1969) I'll use my own example. A potential witness was told that I had a "long criminal record", in order to convince them that they were helping to convict a "career criminal". I have never had so much as a parking ticket.
Prosecutors can sometimes renege on a plea bargain, choosing instead to bring a case before a judge after an agreement has been reached in order to try for harsher sentencing. Since a plea bargain involves an admission of guilt, any trial that ensues will now include a signed confession. Your Public Defender may also lie or misrepresent in order to expedite a case, not revealing what strategies or options are allowed, varying aspects of the law. In my case, I was told that Dupage County had no such thing as a "402" conference. A 402 is when your lawyer, the prosecutor and the judge meet in chambers to work out an equitable deal, amenable to all parties. This is a very common procedure, and, being a legal naif, I believed my PD. You may of course file an appeal based on "lack of sufficient representation", ( this often happens when a defendant (now inmate) has learned through research and conversations with others what other options or approaches his lawyer could have taken ) but very few convictions are ever overturned on this basis. There are cases of lawyers having actually slept through trial procedures and still deemed to have provided "competent representation". More often than not, you don't even realize you have grounds for an appeal until you are sitting in your cell and have the time to read the law concerning the travesty that was made of your case.
The appeals process itself is structured to make further due process difficult. After a conviction, only thirty days are allowed (in most cases) to assemble the materials, do the research, and marshall the resources necessary to file. And since the appeals process usually takes several years to resolve, there is little incentive to pursue a case in which the appeal takes longer than your actual sentence, with you sitting in your cell all the while. It is easier and less expensive to simply accept and serve the time, whether you are innocent or guilty. The only advantage is that defendants have a slightly better shot at justice at the appellate level. In Dupage County, for example, the States Attorney enjoys a 98% conviction rate at the circuit level, but only a 75% success rate at the Court of Appeals. Although appellate attorneys are also employed by the state, they are nonetheless a whole different animal then the circuit level Public Defender. This is another reason why prosecutors work so hard to keep cases in the lower courts
You are definitely better off hiring a private criminal attorney, but not by much. A high priced defense attorney is usually well-connected, knows all the judges and prosecutors on a first name basis (he probably was one), and can usually hash out a deal favorable to his client over drinks at the club. Nobody in here had one of those. Almost every inmate incarcerated where I was had a Public Defender, and the inmates who did hire attorneys got entry-level, unconnected, incompetent, or uncaring ham-and-eggers who played along with the prosecution in order to ingratiate themselves, so they could "join the club", or who fumbled their cases so badly that the defendant would be lucky not to hang. Mounting a strong defense against a criminal charge costs a lot of money, and if you don't have that kind of resources, you're going down. It is a cruel myth that the law applies equally to all citizens. There were no wealthy people where I was, or even middle-class.
Finally, well, there is no finally on this subject) there is little incentive for Prosecutors, Judges, Public Defenders, and Criminal Attorneys to proceed any other way. Their practices are rewarded with lucrative careers, prestige, and success, and their is no voice or public demand for any of it to change. The public, like the legal community believe that if you have come to the point of being arrested, you are guilty, if not of the crime you have been accused of, then surely of something. Nobody wants to spend anymore taxpayer money defending criminals, even if a "few" innocent people have to pay the price. That is, until they or one of their loved ones gets caught in the machinery....
More next week.....
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