Law Office Management
Apr. 2, 2014
Pleading for Justice
A Los Angeles County public defender seeks justice for her clients in a system of plea bargains.
"[C]riminal justice today is for the most part a system of pleas, not a system of trials," he wrote for the majority. "Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas." (Lafler v. Cooper, 732 S.Ct. 1376, 1388 (2012); Missouri v. Frye, 132 U.S. 1399, 1407 - 08 (2012).) In Lafler, the Court affirmed a defendant's constitutional right to effective assistance of counsel during pretrial negotiations, if prosecutors offer the defendant a deal. In dissent, Justice Antonin Scalia argued that the majority ruling "elevates plea bargaining from a necessary evil to a constitutional entitlement. It is no longer a somewhat embarrassing adjunct to our criminal justice system; rather, as the Court announces in the companion case to this one, 'it is the criminal justice system.' " (Lafler, 132 S.Ct. at 1397.) Critics of the plea system - including Michelle Alexander, a law professor at Ohio State University and author of The New Jim Crow (The New Press, 2010) - question the fundamental legitimacy of this process. In her book and in recent articles, Alexander argues that widespread plea bargaining unfairly shifts power from judges to prosecutors, undermines a defendant's right to trial, and effectively fills the nation's prisons with young black men from inner cities. To outsiders, the way a system of plea bargaining actually works is a mystery. Bargaining is conducted mostly behind the scenes. Little detail surfaces in open court beyond the defendants' names, the charges they ultimately plead to, and the sentences they receive. Some pleas take up 20 minutes of court time; others might be accepted in less than 2. Usually, there is no public record of pretrial negotiations, or of what pressures drove prosecutors and defense counsel to make a deal. Defendants who have been arraigned may opt for "fast track" proceedings in early-disposition court. There, pleas move so fast the judge usually tells the defendants they may remain seated. Lawyers mill about, defendants free on bail wait restlessly, and judges race through boilerplate waivers. When Alexander writes about the staggering volume of human souls being pumped through the criminal justice system, this is what it looks like. In Los Angeles County, the District Attorney's Office reports that last year public defenders represented clients in 530 felony and 172 misdemeanor cases prosecuted via jury trial to verdict. But chief deputy PD Emling insists that any estimate of the number of jury trials is misleading, since her office also defends clients in misdemeanor cases brought by city attorneys in the county's largest cities, as well as clients in juvenile and mental health matters. "One thing the public often misses," says Saris, "is that for many clients a plea is often the best result." During the two months Marcus was incarcerated while she worked his case, he lost his job and was billed about $600 in impound fees for the car police had seized. Marcus also turned 21 in jail - a birthday he describes as "the worst day of my life." He slept in a dorm cell crammed with nearly 100 other prisoners, worried about potential fights, prayed, exercised, and tried to prepare for his defense. At a preliminary hearing early on, Marcus got a first look at his "exposure." If denied probation, he faced a minimum of 16 months in jail. A mid-range sentence was two years; the max, three, plus a $10,000 fine. "I would have been OK with it if the gun was mine - you do the crime, do the time," Marcus says. "But three years for a gun that's not mine? I was like, 'No way.' " Saris knew it would be tough to get Marcus acquitted of possessing the handgun found in his car. But the decision to pursue a plea deal wasn't about taking the path of least resistance. Rather, it was about limiting the consequences for Marcus. Almost instinctively, public defenders consider the max; it shapes how they think about their cases. And minimizing the damage is a big part of the job. At trial, the only way for Saris to rebut prosecutors would be for Marcus's friend to admit that he possessed the gun or had placed it in the car. But that wasn't going to happen; such a confession would almost certainly mean jail time for his friend, who already had a criminal record. Saris could argue that the location of the gun indicated it likely belonged to the friend. Pressing the ownership issue, however, might prompt the DA to test for fingerprints - and Marcus had handled the gun when his friend showed it to him. The fact that Marcus was on probation at the time of his arrest posed an even bigger problem for Saris: A judge could find, based on only a preponderance of the evidence, that Marcus had violated the terms of his release simply by having access to the gun. Marcus didn't have any good options. "Even if we won [at trial on the weapons charge], we would have lost," Saris says. "The probation issue effectively extinguished Marcus's right to a trial." Enter the deal. Plea bargains, by their very nature, require trial advocates to adopt a quasi-cooperative approach. "Going in, both sides assume that a case is probably going to plea," said Dmitry Gorin, who served twelve years as a deputy district attorney in Los Angeles before joining the criminal defense firm of Eisner Gorin. "As a prosecutor, I had a narrow focus in crafting my offer, and I looked primarily at the victim and the crime." Prosecutors also receive guidance on negotiated offers from DA policy and from individual supervisors, who often must approve deals. Those policies and procedures are meant to foster uniformity and make the plea system fair. But in practice, much of what happens depends on the chemistry between specific prosecutors and public defenders, according to Kim Santini, a Del Mar criminal defense lawyer who spent 15 years as an L.A. County prosecutor. "There's a party line from the DA's office about how pleas are supposed to work - and then there's the reality," Santini says. "Some prosecutors are like persecutors. But some public defenders can be equally hard to deal with. You learn that there are defense lawyers you can trust, and there are those you can't." In a system where personalities heavily influence case outcomes, the assignments of prosecutor and public defender can be just as important as the facts in the file. In a recent podcast on plea bargains, Saris says, "I know [private] defense lawyers in the courtroom where I work who everyone knows are never going to trial. ... They're not going to reject the plea bargain; they're going to talk their client into it." For public defenders, striking a deal can be further complicated by the ingrained biases of their clients, who may believe that their appointed lawyer is too chummy with the DA to cut a decent bargain, or not good enough to win at trial. "Client bias against PDs can be a major hurdle to our job," says one public defender with six years of experience. "If you can afford Clarence Darrow, then get him. Otherwise, know that private lawyers may not have the same level of training and experience as we do - and they have a profit motive to plead as quickly as possible." Saris emphasizes that part of her job is "active listening" - paying attention to what her clients are saying, and letting them know they have been heard. "When a plea is the best option, they need to feel that there is some benefit to accepting one," she says. "We need to give them the ability to save face, to have an out," rather than watch them reject an otherwise favorable offer. In the end, the kind of deal defenders can strike may come down to the custody status of the defendant. In Los Angeles County, bond is $1,000 for bail that starts at $10,000 for even minor felonies, and it's hard to see how indigent clients could possibly afford that. The prohibitive cost means most defendants remain in jail pending disposition of their case. "Not being able to make bail definitely makes people more apt to [plead] - especially in misdemeanor cases - because often you can [plead] and be released soon after," Saris says. "In felony cases, the inability to make bail puts all kinds of stresses on clients." Many public defenders I spoke with expressed tremendous concern that they had represented clients who took a deal just to get out of jail. But when I asked former prosecutors if they thought a defendant's inability to make bail gave them unfair advantage, some were unsympathetic. "It's true ... that having a defendant in custody gives prosecutors leverage in forcing a plea bargain," says former deputy DA Gorin. Still, "I do not believe many innocent people plead guilty just to get out of jail." "Economic inequality is a philosophical issue," Santini says. "It's not a problem the criminal justice system is meant to deal with." She notes that many defendants choose to delay going to trial - whether they're in custody or out on bond - because criminal cases often weaken over time. "It's a perfectly valid and common defense tactic," she says. That being in custody provides leverage might be an understatement. Richard La Fianza, a deputy public defender in San Bernardino, wrote last year in the Los Angeles Daily Journal: "While your trial will probably start within 90 days, it could take up to twice as long, especially if your case is dismissed and re-filed. ... Because people do not want to lose their jobs, their homes, their credit; because they do not want their children taken from them; because they have sick parents who need their support, innocent persons are routinely pleading guilty to felonies" if they can't post bail. In her podcast on pleas, Saris describes a 2012 study by two law professors that was designed to replicate the pressures and choices defendants may face. (Lucian E. Dervan & Vanessa A. Edkins, Plea Bargaining's Innocence Problem, 103 J. CRIM. L. & CRIMINOLOGY 1 (2013).) Accused of cheating on a psychological test, dozens of Florida college students in the study were offered two choices: Admit guilt and forgo compensation, or proceed to a disciplinary trial and risk academic punishment. More than 90 percent of the students who cheated took the offer - but so did nearly 60 percent of the students who hadn't cheated. "A lot of people believe they would never confess to something they didn't do, no matter what," Saris says in another of her podcasts. But having reviewed the many studies on false confessions, she adds, "Some defendants get to a point where they think, 'I'm going to say what you want me to say so I can go home.' I've heard that quite a bit in my career." Rather than focusing on legal arguments about who was in possession of the gun in Marcus's car, Saris kept her client's prospects at the forefront. She gathered favorable affidavits from Marcus's employer, and from a college guidance counselor. She also marshaled support from Marcus's family - something public defenders say makes a crucial difference, though few clients have people willing to show up on their behalf. Over several weeks, Saris built a case for the prosecutor that Marcus was a "good kid" who'd made the mistake of helping a friend. "I just wish the DA had used some common sense," Marcus says. "I had two positive things going on in my life - work and school. [My friend] had five robbery charges hanging over his head. It shouldn't be that hard to figure out whose gun it was." Ultimately, Marcus admitted to what he did - violate probation - and also pleaded no contest to a crime he didn't commit - possessing a gun as a convicted felon. When asked whether being in jail had influenced his decision, Marcus described his plea as "a very heavy experience." On the other hand, after two months in jail he "wanted to jump for joy" when he heard he'd soon be released. Marcus was lucky. The deal was a good one for him, under the circumstances, and probably allowed him to hang onto his future. Instead of going to state prison for three years, he was sentenced to 180 days - effectively, a little more than time served - plus three years of probation and 180 hours' labor for Caltrans. Under the state's probation cost recovery law, Marcus also must pay $4,100 to cover probation costs for both his vandalism and gun possession convictions. Marcus remains a felon, but eventually he can petition to have his convictions dismissed if he completes probation, pays all fines, and avoids further criminal charges. Even better, he has parted ways with the friend who put the gun charge on him. Marcus moved to a safer neighborhood, works two jobs, and he's back in school, studying culinary arts. When I ask Marcus if he thinks he got a fair shake from the justice system, he says he doesn't know. "It's not what you know, it's what you can prove," he now understands. "It wasn't my gun. I just didn't think I could prove that. But that's not because of my lawyer - I love her." In fact, Marcus says Saris did an outstanding job. He still keeps in touch, calling Saris periodically to let her know how he's doing. And when he sees her, Marcus smiles wide and gives her a big hug. Michael Estrin is a Los Angeles-based freelance writer and attorney.
Kari Santos
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