Gideon, who wasn’t busy enough putting together Blawg Review 143, posts at  A Public Defender the results of the long-awaited GHSSS Survey on innocent defendants pleading guilty to avoid jail time.  The results are overwhelming, with 60% saying that they would indeed plead guilty to an offense they did not commit if the outcome saved them from going to jail.

This, of course, is not news.  Not to criminal defense lawyers.  Not to judges.  We know it because we see it happen all the time.  It is our obligation to advise clients of any plea offer, and so we do.  We advise them of the significance of the offer, and often on its consequences, intended and otherwise. 

Some lawyers advise clients as to whether they think the client should take the offer as well.  Some lawyers, myself included, tend not to offer such advice, as we exert undue influence in a choice that is uniquely personal to each defendant.  By suggesting that the client take the plea, we tacitly state that we have no faith that they can defend against the charges.  Or more precisely, lawyers communicate to clients that they have no faith that they feel that they can do so.  If a lawyer conveys the message that they are going to lose, no sane client wants to test the message with his life.

The law, unfortunately, has long refused to recognize the existence of this reality.  Innocent people do not plead guilty as a matter of law.  There is no such thing as a plea of convenience, at least in New York where Alford pleas are essentially non-existent.  When a defendant agrees to enter a plea of guilty to any but the most trivial offense, he is allocuted, under oath, and required to state the facts that support guilt.  The defendant must state in open court that he did the crime.  End of story.

The irony of this scenario is that, given the option of committing perjury by openly proclaiming guilt and admitting to the factual acts necessary to prove it, versus holding firm to the truth, comes at great personal risk, to the defendant, spouse and children.  Try explaining to your kids why it was better to roll the dice and face 15 years in prison rather than “lie” to the judge by pleading guilty and walking out the door that day.

But this is not a situation without problems.  For one thing, these decisions often happen under such coercive circumstances as to preclude a fair assessment of risk/reward.  The defendant stands before the Court for an ordinary calender appearance, when out of the blue, the prosecutor or judge tells him, “Here’s your plea offer. You can take it or leave it, but it’s never coming around again and you have 30 seconds to decide.”  Manhattan Supreme Harold Rothwax, former Legal Aid attorney and punitive curmudgeon at the end of his career, was famous for doing this.  Nobody put the screws to a defendant like Harold.

Knowing of this potentiality, I would always try to prepare my clients well in advance so that they would be somewhat prepared for these shocking twists.  But no preparation can truly prepare a defendant to make a reasoned decision under these circumstances.  It’s never clear how much a defendant actually hears in the well of the court, or how quickly he can process what’s happening even if he does hear it all.  There’s no time for deliberation or discussion of consequences based upon specifics of the offer.  It’s do or die.  Like the old Meatloaf song, Paradise by the Dashboard LIghts, “what’s it gonna be, boy, yes or no?”

So innocent people plead guilty.  Does that really present a problem?  Consider the reaction of  one commenter to Gid’s post:

I must take issue with your “convictions have nothing to do with justice” premise. The fact is that they almost always get the right guy, and there are a hell of a lot more false negatives than false positives.

Notwithstanding the lack of empirical evidence to support this statement, it’s likely to be fairly accurate.  For this commenter, “almost always” is a good enough standard to endorse the efficacy of the system.  Would he feel the same if it was his turn in the well?  I think not.

What this really tells us is that most people are quite willing to suffer an imperfect system, as long as it’s the other guy who has to take one for the team.  They are expendable.  We are not.  But then, this commenter has obviously never been put to the test.  The easy answer is that is because he’s a law-abiding citizen and would have no reason to find himself in the well before a hanging judge.  But that ignores the problem, which is that innocent, law-abiding people sometimes do find themselves in this position and are forced to make the decision. 

It’s far too easy to view the false positive, the conviction of the innocent by a plea of convenience, as an unavoidable casualty of an imperfect system when it’s not you or someone you love.  If you don’t believe this, stand beside an innocent man as someone demands that he either admits false guilt or faces ridiculous odds with unbearable consequences.  You’ll see.