Plea bargaining is a ubiquitous feature of criminal law, but hardly something that speaks well of the criminal justice system.  So when I read Doug Berman’s introduction of a new blog about plea bargaining, I cringed. 

The blog is called, quite simply, The Plea Bargaining Blog, giving it points for title clarity.  The subtitle, on the other hand, goes on at far greater length:

The Plea Bargaining Blog is dedicated to scholarship, articles and news regarding plea bargaining in criminal cases in the United States and around the world.  On average, 95% of all criminal cases are resolved through plea bargains.  As such, it is an integral part of the criminal justice system worthy of continuous examination and discussion.  The purpose of this blog is to further our understanding of the plea bargaining machine and its role in the criminal justice system.

While I have severe reservations that this is a subject worthy of too much scholarship, it’s certainly true that it is an integral part of the system.  But does that make it “worthy of continuous examination and discussion?”  That strikes me as a non sequitur.  So I went to the blog to see what sort of examination there was to be had.

The blog is authored by Lucian E. Dervan, an associate with a Florida law firm with which I was unfamiliar.  But from the sidebar, both noting his prior articles and links to lawprof blogs, it seemed that Lucian had one eye looking toward the academy.  Perhaps this was going to be the focus of his scholarship on the road to professorship.  The lawprofs all talk about how one has to stake a claim to scholarship if you want to get an office in the Ivory Tower.

The newest post discusses a “rocket docket” in Brevard County, Florida, apparently intended to expedite mass pleas to clear out real estate.  Dervan comments:

So is this a good idea, and should courts around the country utilize such swift justice to clear the dockets and the jail cells? I believe it depends on the reasons for the use of such a system and the safeguards employed to ensure justice is served. In the misdemeanor context, defendants who cannot afford bail often remain in jail awaiting trial longer than the length of a reasonable sentence should they be found guilty. It is hard to argue, therefore, that these defendants should not be given the chance to plead guilty and go home as fast as possible.

Perhaps the scholarship aspect is over my head, being the simple country lawyer that I am, but the depth of understanding of this scheme seems a little lacking.  This is a plea bargaining “fire sale,” offering deals too good to pass up by releasing defendants immediately for taking the deal.  It’s good to clear out beds.  It’s bad if innocents are induced to take the deal just to get home, as is surely its purpose.  Dervan continues:

And this negative aspect of the “plea rocket docket” brings up yet another problem, this type of system creates an immense incentive for defendants to plead guilty even if they are not guilty of the charged offense. It almost defies reason to believe that anyone would volunteer to remain in jail awaiting some future opportunity to present his or her case to a judge when freedom is a simple guilty plea away.

Well, yes.  Obviously.  And this is the hallmark of plea bargaining.  An inducement to accept/acquiesce for the benefit of a known result, sacrificing factual guilt and constitutional rights in the process.

The discussion made me wonder what Lucian Dervan’s background is, so that I could understand why he’s chosen to stake a claim to being a plea bargaining scholar.  His Avvo profile states that he was admitted to the Georgia bar in 2002, worked in Biglaw for four years before getting an 11th Circuit clerkship.  He then went to work for a Florida firm, and I would guess that he’s awaiting admission to the Florida bar.  The profile states that his practice is 90% employment/labor law, 10% white collar crime law.  The picture was coming into focus.

I read some more posts until I came to one involving the Souther District of New York, my neck of the woods.   The post was about Ronald Peteka, who has conspired with a Morgan Stanley employees to glom some proprietary information.  Peteka has taken a plea, which apparently made him an appropriate subject of discussion.

The requirement that Peteka plead to a statute containing a maximum sentence of 10 years, rather than one of the numerous statutes with a 5 year maximum, indicates that this plea agreement was late in the process and Peteka may have secured a better deal had he acted more quickly. Of particular note here is the fact that the co-defendant pleaded guilty eighteen months ago, indicating Peteka was somewhat of a hold-out.

Say what?  I hate to be disagreeable, but this is hardly what I take from the negligible information available.  Without knowing who the defense lawyers were, this smells of the co-defendant flipping early, leaving Peteka holding the bag.  There is nothing to suggest that Peteka could have secured a better deal by pleading earlier.  Maybe by ratting out his mother, but it’s unlikely she brought much to the table. 

As for pleading to the 10 year count, they Southern District almost always requires its pleas to be to the highest count, and then softens the blow in the plea agreement.  After all, the maximum sentence means little without knowing the agreed-upon guidelines calculations.  Maybe Peteka had a great defense and a great lawyer, and maybe they gave him a sweetheart plea because they didn’t want to try him.  Nothing can be gleaned from the worthless U.S Attorney’s  press release.

But the analysis offered in Dervan’s post is precisely what concerned me from the outset.  To the unaware, the commentary suggests that pleading early and often is the way to go.  If a reader was to assume that Dervan, by dint of having a blog dedicated to plea bargaining, had vast knowledge and experience, and was a voice to heed in the handling of criminal charges, the reader might well be inclined to believe that there’s no point in fighting criminal charges as almost everyone, guilty or innocent, ultimately pleads guilty anyway.  And the best course to take is plead as quickly as possible, since that’s when the best deals are to be cut.

This “message” is absolute garbage, and reflects a fundamental lack of knowledge and understanding about the nature of criminal prosecutions in general, and plea bargaining in particular.  It is grossly simplistic and totally wrong.  This is the sort of advice one gets from a shill for the prosecution.

I don’t begrudge anyone starting up a blog on any subject they select.  All it takes is a dollar and a dream.  But I do question whether a blog that purports to specialize in a non-existent specialty might serve to be dangerously simplistic and misleading to those readers who are scared to death, looking for “expert” advice and subject to accepting misinformation as reality. 

There have been individual posts from some of the lawprofs from time to time that relate to the propriety of plea bargaining and its mechanics, though I can’t recall any that reflect any real comprehension of the dynamics of plea bargaining in the real world.  But there’s nothing at The Plea Bargaining Blog that adds anything meaningful to the discussion, and it may well prove dangerous should any defendant happen to stumble upon it or any new lawyer think that this is how “everyone does it.” 

I doubt that there’s any place for a blog dedicated to plea bargaining.  But even if there is, I’m sorry to say that there’s no place for this blog.