When I received the email announcing a study of plea bargaining by a doctoral candidate at John Jay College of Criminal Justice, a part of the City University of New York, and seeking participants, there was no hesitation. Not only did I want to participate, but I wanted very much to see more about the study. I emailed immediately.
Within minutes, I received the information and was ready to jump in. It began with some basic case/investigation information and then launched into questions. I won’t provide any background on the information, as some readers will also participate in the study and, to the extent it’s to have any validity, disclosure here would spoil it. I won’t do that.
The first question to be answered in the study was:
1. If you were the defense attorney in this case, would you recommend that the defendant accept a plea bargain if one is offered by the prosecutor?
NO YES
Oh my God. It was only question number one and already I was stumped. There was no possibility of answering a question like this question. Stymied, I called the number provided for any questions about the study. No answer, so I left a message.
Could this be a trick? Maybe a test for tolerance for ambiguity? Maybe the legal version of Stanley Milgram? Was there some secret hidden meaning in this being the first question, a test perhaps of whether defense lawyers were so incompetent, thoughtless, uncaring, that they would respond without any of the hundreds, no thousand, maybe more, bits of information on the variable factors that go into such a complex decision as to whether to recommend that a defendant accept a plea bargain.
I quickly decided that anyone who answered this question should be disbarred. Possibly tarred and feathered after being disbarred. First maybe. Whatever, it was an absurd question. After waiting a few minutes, and having other things to do, I decided that it was a trick and answered “no”, my reasoning being that I could absolutely not recommend a plea bargain without having all the reason to aligned to do otherwise. “No” was my default.
A few minutes later, I received a call back. After niceties, I explained that I called because I was stumped by the first question. She was concerned. This wasn’t a trick question. It was just a question, one that she thought would be rather straightforward.
I explained to the doctoral candidate that it was an impossible question and gave her about a dozen variables that would have to be answered, at absolute minimum, to formulate an opinion. She had not thought about the variables; she was very much interested in studying plea bargaining, an area she informed me that was terribly understudied, but wasn’t familiar with legal processes. Instead, her study sought to isolate particular factors in plea bargaining, such as a weakness in a specific aspect of evidence, and its impact on the willingness to take a plea.
It was a fine idea, but without isolating the element she sought to study, rendered her study kinda, well, goofy and pointless. It wasn’t easy to do, I recognized, and it was extremely unlikely that her study was going to accomplish much.
John Jay isn’t a law school, but one dedicated to the study of criminal justice. I’ve never been entirely clear what that means, but I expect it turns out a lot more cops and corrections types then, say, criminal defense non-lawyer occupational-types. There are likely many who are involved with criminal justice on both sides of the fence, as well as neutrals, but not many who could offer the perspective of a criminal defense lawyer to a doctoral candidate.
That nobody suggested that the decision to accept a plea bargain required, at minimum, a fact (like what the deal might be) is pretty surprising. That somebody is trying to get a doctorate without knowing this is, well, surprising. That the committee that approved this study didn’t find this troubling is, well, surprising. Interdisciplinary is one the buzzwords throughout academia these days, and while the study was being done under the auspices of the forensic psychology department, there had to be a lawyer or two they could have asked to take a look at it. I know they have some lawyers working the adjunct side of the street, and Jeremy Travis, the President of John Jay, used to be an aide at the Legal Aid lawyer before he went all official. They could have asked somebody.
The blawgosphere often discusses the results of studies that bear upon what we do. This scares me. While I was never so naive before as to believe that any study should be taken as gospel, I could easily push aside the nasty details of construction to get to the bottom line, anticipating that smart people had gone over the structure of the study to make sure that it had some validity from inception.
But this study passed through the normal rigors, and still it began with a question that couldn’t be answered. At least not by me.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
And the fun part is that studies like this pass all the time for credible scholarship, are used as fodder for news reports and political campaigns, and form the basis for legislature that changes the landscape of what you do and how you do it.
Still, in all, a poorly-conceived question.
I’m apparently not one of the invited as I didn’t receive an e-mail asking me to participate in the study. But I fear that for far too many so-called criminal defense lawyers the question is remarkably easy to answer:
If a plea bargain is offered, they’d recommend taking it. That’s what they do. It’s how one processes cases.
I should add that there are a lot of clients whose first words to me are variations on, “Just get me a plea bargain, man.” Then there are the ones who complain that their prior lawyer failed in his fundamental duty and their rights were violated because the state didn’t offer a bargain. Apparently, there’s a widespread belief that the state is required to offer a deal in every case.
The John Jay study probably doesn’t take account of any of that.
I believe that the study was limited to particularly handsome (and New York) lawyers, which could explain why you weren’t asked to participate.
While your point is clear, bear in mind that Question 1 comes with no predicate, not even an offer. Just an open question, cop a plea or not? For all you know when answering, it’s a 10 year exposure with an offer to 9 years. 11 months, 29 days and 19 hours. Not even the worst, lowest, scoundrel-iest criminal defense lawyer could respond without knowing that.
Or there’s always tarring and feathering.
I’ll go with the tar and feathers. On the other hand, I just read a case where the court of appeals affirmed a plea to a deal for an actual (day for day) 111 year sentence – where the underlying max was several life terms.
We need a whole lot of tar and a much plucking.
Oh, come on, that can’t be true. Unless 111 years nets out to 7 years, three months.
You’re right. He only got 110 years. And the underlying was only 2 terms of LWOP. My mistake. Admittedly, the plea didn’t specifically say he would get all that time, but it sure didn’t preclude it.
Case is State v. Dunkle, from Ohio.
Ohio? Say, isn’t that your neck of the woods? I hear feathers are on sale in Cleveland…
“I could easily push aside the nasty details…anticipating that smart people had gone over the structure of the study to make sure that it had some validity from inception.”
You know, I make that mistake too. Not enough smart people to go around, I guess.
Someone today told me about a client who got “a good deal” because it was “only” 15-to-life plus two consecutive 10-year enhancements when he was facing 50-to-life if convicted. To get the deal, he had to waive appellate rights, including any for IAC.
Maybe I’m inexperienced, but that did not seem like such a great deal to me, especially since I hear parole in CA isn’t usually granted on first time and much time can pass between review hearings.
What? You can waive the right to appeal for IAC? And you do this at the advice of your lawyer?
So said the trial court when he tried to withdraw his plea.
Not to worry. Reversed on the ground you mention. Still a modicum of sanity in the appellate court.
There’s actually an Ohio ethics opinion (non-binding, but violate at your own risk) that says, “It is unethical under the Ohio Code of Professional Responsibility for a prosecutor to negotiate and a criminal defense attorney to advise a defendant to enter a plea agreement that waives the defendant’s appellate or postconviction claims of ineffective assistance of trial counsel or prosecutorial misconduct.”
The opinion came after questions about the practice which some prosecutors pushed and to which some defense lawyers acquiesced.
In general, it’s been federal prosecutors who’ve been most resistant to abandoning the practice, largely because they continue to believe state ethics rules don’t apply to them.
Then again, it is Ohio.
I have heard that the federal courts here do that, too. However, I primarily practice in the State court. I have had, if I recall correctly, only two federal cases and the were “low-level” involving things like DUI in a national park.
From my experience with studies in the IT world, this is not unusual. I’m constantly seeing questions where the real answer is, “that depends on a whole lot of information you haven’t given me, and probably can’t reasonably give me in a survey.”
I suspect that this happens in a lot of fields where no two situations are ever exactly a like, and professional judgement is something in constant use.
The issue here comes down to expertise, I believe. Those who are not experts in a field generally aren’t equipped to figure out what criteria experts need to make their decisions. Worse yet, someone not an expert in any field (which, given the lack of experience most students have, is probably the case) may not understand expert decision-making processes well enough even to know how experts might come to a decision.
This is your blog of course, and you’re free to delete comments in part as you like, but two comments on that:
1. I would have far preferred you deleted the link on my name to my personal blog (which is not really relevant to the topic) and left in the link in the text to my blog post on expertise that discusses the idea in further detail. If it was just a technical thing, I’ve linked that post from my name in this response. If you’re worried about the off-site link, you’re even free to repost all 1100 words of it here.
2. I’m also a little disappointed that you dropped the reference to the Patricia Benner book; though it’s about a different field, I think it’s quite relevant when it comes to how professionals work well (or poorly) in general, and it’s rather more accessible than the Dreyfus and Dreyfus research.
That said, if it’s not something you wanted people to be able to pursue from here, fair enough. It’s your blog after all. But I myself found studying the whole idea of expertise in professional environments to not only explain a lot of things, but be helpful for training novices.
The rule here has always been no links in the comments. Nothing personal.
But my links are different! Now you’ve offended my sense of entitlement! 🙂
(Actually, I just misinterpreted your policy and thought it was about links that could be interpreted as marketing.)