Who Do You Trust? (Update)

SDNY Judge Jed Rakoff hasn’t been afraid to ask questions and challenge the “way things are,” which is most assuredly a virtue in an Article III judge. He sees the problem, according to his speech at USC Law School:

“Plea bargains have led many innocent people to take a deal,” Rakoff said. “People accused of crimes are often offered five years by prosecutors or face 20 to 30 years if they go to trial. … The prosecutor has the information, he has all the chips … and the defense lawyer has very, very little to work with. So it’s a system of prosecutor power and prosecutor discretion. I saw it in real life [as a criminal defense attorney], and I also know it in my work as a judge today.”

Five years? I wish. But still, his sentiments are clearly on target, that we’ve become a system of plea bargains, with “only 2 percent of cases in the federal system go to trial, and 4 percent of cases in the state system go before a jury,” and the prosecution dictates what that bargain will be.

The judge offers the usual remedies:

Rakoff said prosecutors should have smaller roles in sentence bargaining and the mandatory minimum sentences should be eliminated.

Prosecutors, of course, don’t quite see it this way.

As career DOJ prosecutors know, strong mandatory minimum statutes are essential to rein in the sometimes ideological, sometimes naive, and sometimes careless decisions of sentencing courts.

But Judge Rakoff has another idea, which may seem “ideological, sometimes naive, and sometimes careless” to prosecutors, but strikes ATL’s Joe Patrice as “far too sensible for anyone to actually implement.”

“What I have in mind is a magistrate judge or a junior judge would get involved,” Rakoff said. “He would take offers from the prosecutor and the defense. … He would evaluate the case and propose a plea bargain if he thought that was appropriate, and he might, in appropriate cases, say to the prosecutor, ‘You don’t have a case and you should drop it.’ This would be very difficult for the judiciary; it’s not something I come to lightly, but I can’t think of any better solution to this problem.”

There’s a huge built-in irony here. While prosecutors may not trust judges enough to let them be judges, because they may not adore prosecutors nearly enough, judges believe that they are the mother lode of fairness and reasonableness.

From a judge’s perspective, this may well seem like a viable option.  After all, no one can possibly question their fairness and dedication to “justice,” because they’re judges and when they put on a robe, the heavens open and lightning bolts of fairness fly down from on high and strike them between the eyes.

And from the prosecutor’s perspective, it’s understandable that they don’t want to give away the hammer they wield to beat defendants into submission. Who would?

But to call this a sensible solution, no less one that is far too sensible to happen, reflects a fundamental ignorance of the process.  Sure, a magistrate judge might be able to tell a prosecutor that his case is a mutt, but that wouldn’t mean he would have to dismiss it. And even if it did, such a pronouncement by a mag would happen, what?, once or twice in a millennium?  We would know exactly which mag made such an errant suggestion, as they would be the one sending out resumes.

While prosecutors may see judges as their ideological enemy, defense lawyers don’t see them as their bestest friends.  At best, a judge might bring a bit of skepticism in his review of a prosecutor’s evidence, but that would be just a tiny bit, and likely on the rarest of occasions.  Notice how often dismissal and suppression motions are granted?  Is there any reason to suspect that judges would be any more amenable to the defense otherwise?

But in the process, it would be up to the defense to “sell” the judge on why the prosecution’s life plus cancer offer isn’t “justice.”  Would we be constrained to reveal our defense, our best evidence, our witnesses?  Because the prosecutor won’t send the FBI out to have a nice chat with them within the hour, causing our witnesses to flee the country and never speak with us again under threat of a §1001 prosecution?

Much as I can appreciate Judge Rakoff’s concerns and effort to come up with an alternative to the current system, clearly a fiasco for defendants, his deference to judges is still a hammer to the defendant’s nail.

Despite their best intentions, judges are still judges, and still tend to align themselves with the other guys. They may not entirely agree with them, but they don’t tend to agree with us at all.  Could this serve to temper the prosecution’s unilateral power to ram a plea down the defendant’s throat?  Perhaps, but given institutional pressures and incentives, it seems far more likely that this “far too sensible” solution is more a matter of trading 121 months with a scowl for 121 months with a smile.  It doesn’t “solve” much of anything.

On the other hand, the judges have it within their power to make a real change, without any impossible to implement change. They can do it today. Just end the trial tax. Let defendants know that they won’t suffer a sentence three times the plea offer for exercising their right to put the prosecution to the test. Let’s try more cases, and put the question before the judge instead of letting either prosecution or judge decide just how guilty the defendant is.

If the only problem stopping the system from working toward a solution is that judges slam the defendant for having exercised his constitutional rights, then judges don’t need to devise a new scheme for plea bargains. Try the case, and should the defendant be convicted, don’t impose a sentence so coercive that he believes he has no option but to acquiesce to the prosecution.  And you can do that starting today.

Update:  Wisconsin Court of Appeals Judge Ralph Adam Fine reminds me of his 1986 piece, Escape of the Guilty & Extortion of the Innocent.  28 years and still fighting for the right to go to trial without being extorted by a grossly excessive penalty for the exercise of this constitutional right.

9 comments on “Who Do You Trust? (Update)

  1. John Barleycorn

    How long are you in for?
    Twenty years.

    What did you do?


    Nonsense. The sentence for nothing is only ten years.

    (Not mine, somewhere in the Ukriane a select few may know it after they have a meet and greet at Starbucks with the CIA woman and forget that diplomacy is never two cubes and always sugar and week tea)

    1. John Barleycorn

      Oh shit, excuse me that shit happens next door. What was I thinking?

      That guy over there in particular is guilty.

  2. Burgers Allday

    Don’t allow prosecutor to spend any more on the case than the defense does (which often goes by the convenient misnomer of spending parity). There might well be just as high a proportion of plea bargains under a spending parity regime, but they would be much fairer bargains. As Darden and Clark found out the hard way, trials are not as fun when the opposition is well-funded.

    1. SHG Post author

      Don’t allow? Were you under the belief that they asked permission? The idea is ludicrous, and one case, OJ, does not prove anything.

      1. Burgers Allday

        We both agree the system is broken. You want to fix it by applying dormant rules and/or powers that already exist. Me and Judge Rakoff actually want to see some actual reform. Your position is not ludicrous and neither is mine.

        1. SHG Post author

          Yeah, you and Judge Rakoff. The only difference is that he’s a federal judge and you’re a clueless anon nutjob.

          1. Burgers Allday

            Well, we also have somewhat different reforms in mind. So that is another difference. I will say (and this is something of a criticism of you) that you are a very status over substance kind of guy. That is coming out again here.

            1. SHG Post author

              That’s a convenient, yet self-serving, explanation. Unfortunately, it’s wrong. This is all about substance. Rakoff was a prosecutor, a criminal defense lawyer and a federal judge who tries criminal cases. You are not. You are none of these things.

              You have offered a solution that’s facially ludicrous and reflects your absence of understanding about how the system works. And to the extent you can put out a notion that is facially ludicrous, you have no credibility behind it, because you chose to be pseudonymous and your idea is wholly lacking in substance.

              You can try to explain away why no criminal lawyer seems to think as well of you as you think of yourself (and you clearly think very well of your ideas), but the fact is that you haven’t earned respect. Fascination with criminal law does not correlate with your having an understanding of it.

              This isn’t reddit. There are lawyers here, and they know what you apparently do not. Your ideas are foolish. Sorry, but you’re not going to get respect here just because it would make you feel better about yourself. My first response to your idea was that the idea was ludicrous. Not you. You should have left it that rather than defend your honor.

  3. Thomas R. Griffith

    Sir, good afternoon. “Who Do You Trust?” Sadly, none of ’em. Take it from a real life sized victim of the system (the rigged one aka: the Texas TapOut to be precise). When both Teams are hell bent on taking it to a jury trial for 120 days +/-, only to end up being enabled by the Bench to opt out and celebrate a Draw as a Win-Win (“Guilty or Not”) you have a rigged system utilizing jurors all the way to lunch recess. When you are allowed to ignore rules and policies and stop a felony jury trial in full motion via: legal advice based in deceit or threat tactics, the entire process is bastardized to accommodate a select few. That my friends is a rigged system in which we the public seem to perpetually condone, as those in the mix consider it as simply “broken”. Thanks.

    NOTICE: A wise man said this –

    “Try the case, and should the defendant be convicted, don’t impose a sentence so coercive that he believes he has no option but to acquiesce to the prosecution. And you can do that starting today.”

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