A Plea That’s Not

One of the basic dirty little secrets of the criminal justice system is the plea of convenience, the defendant accepting a plea to a crime that never happened because the burden of fighting is too difficult to pursue.  Much as we all know it to happen, particularly in cases of incarcerated defendants who will walk free if they cop out but sit in jail for months, maybe years, awaiting a trial where they may well lose despite their innocence, it’s not supposed to happen.

The judge is supposed to be the gatekeeper of pleas, allowing only those of actually guilty defendants and rejecting those of people who are not.  Of course, the judge often has no real clue whether the allocution, the detailed description of the defendant’s conduct that comprises the crime, is true, but the defendant is put under oath, mouths the words he needs to say and the plea moves forward.

On occasion, getting the right words out  can be difficult.  Inexplicably, some defendants take the oath to tell the truth seriously and this throws a huge wrench into the works.  The defendants may want the plea, ending the nightmare for themselves and their families, but find themselves unable to say they committed a crime when they didn’t.  There is, of course, the Alford plea, where a defendant accepts a plea without admission of guilt, but many jurisdictions or prosecutors refuse to accept it.  They demand the defendant admit his guilt.

All of which makes the guilty plea of New York Police Officer Admir Kacamakovic very wrong.

Kacamakovic  was accused of breaking up a fight at his cousin’s bar in Bensonhurst, Brooklyn. He was in uniform and on duty when he handcuffed one of the fighters and pepper sprayed him. There was also a charge of his illegally running plates in the NYPD computer.

Much as he might have liked being a cop, Kacamakovic was not cut out to be a defendant.  As he told EDNY Judge William Kuntz,

“I don’t know why I didn’t commit suicide yet,” said Admir Kacamakovic, 32.

“I have been working in the most corrupt police department, and I want to start somewhere else.

“I can’t take it anymore,” said the eight-year veteran, formerly of the 62nd Precinct, who said that he had been seeing a psychiatrist monthly since his arrest last October.

“It’s been a shameful, shameful year for my family.”
Yeah, it isn’t a thrill for much for anybody, but very few police officers ever come to the epiphany on their own. So he decided to take the plea, except that  didn’t work out as smoothly as one might have expected.

In his admission of guilt, Officer Kacamakovic gave the presiding judge, William F. Kuntz II, a vague description of his crime, saying he had handcuffed a man and caused him injury. Judge Kuntz pressed him for detail.

Officer Kacamakovic said that he arrived at his cousin’s bar in Brooklyn and noticed a fight breaking out. He separated the men, he said, and, unable to subdue one, handcuffed him. An eight-year veteran, Officer Kacamakovic, who was on duty and in uniform at the time, characterized the handcuffing as justified.

The proceeding stopped.

“Under what he said, he is not pleading guilty to a crime,” the prosecutor, Michael Warren, said.

It’s not unusual for a defendant to need a bit of “prodding” to get the words out that make out a crime.  It’s hard to openly admit doing wrong, harder still for cop.

Judge Kuntz asked him to restate his allocution, but again he failed to admit to a crime. Back and forth it went, until Officer Kacamakovic threw up his hands. “I said I was going to testify under oath,” he said. “That’s the truth.”

“That’s not a guilty plea,” Judge Kuntz told him, adding that he could choose to go to trial.

Despite the fact that Kacamakovic clearly wanted to take the plea and end the nightmare, a perfectly understandable position, there comes a point when the allocution turns into a stand-up comedy routine.  After the second try, concluding with “that’s the truth,” there is really no place left to go.  Or not?

After a recess, the judge again asked him to admit to his crimes. Officer Kacamakovic then said he did not handcuff the man to break up the fight but rather in retribution for the man saying he was going to file a complaint against him. That is a civil rights violation.

The judge looked to both lawyers, who were in agreement, and accepted the plea.

The deal was done, but in the process of accepting a plea that the government sought and the defendant clearly needed to take given his emotional state, the fallacy of an allocution under oath was revealed.  During the recess, his attorney no doubt explained to him that he either says the magic words the court needs to hear or he’s going to trial. At that point, Kacamakovic would have admitted to kidnapping the Lindbergh baby to end the case. 

The facile solution of the Alford plea seems like a simple enough solution, but it’s not without its flaws. It leaves society and the victims unfulfilled, as the defendant takes no responsibility for his conduct, and more importantly, it’s a de facto concession that the criminal justice system is a sham, a means for an overbearing government to subjugate innocent people who just want out of the nightmare.  By accepting that (as many would argue reflects the truth about the system), we are left with a system devoid of legitimacy.

Judge Kuntz took the plea, and there can be little doubt  Kacamakovic was glad he did as there was no way he could have withstood the pressure of further prosecution.  And nobody in the courtroom laughed at the joke.

8 thoughts on “A Plea That’s Not

  1. Alex Bunin

    There are the truly not guilty (often misdemeanor cases) who say, “I didn’t do it, but I want to get out today.” It is an injustice when they plead guilty. Then there those, like the officer, who are guilty but need help getting out the words to incriminate themselves on the record. One judge in Utica used to drive me crazy by always asking defendants “What did you do?” Often, counsel can help by “cross examining” their client. I cannot remember doing a true Alford plea, although I’ve had clients who certainly wanted to.

  2. Thomas R. Griffith

    Sir, by the wording, I’m assuming that the NY versions’ of the TapOut (plea bargain) process takes place in the court room where it is recorded by the court reporter as being conducted in “Open Court”. Including the Plea of Convenience & Alford Plea we’ve learned about here. Basically, not a secret process.

    In the great state of confusion aka: Harris County, Texas to be precise, it’s initiated in the court holding cell and conducted in the judge’s chambers but recorded as “Open Court” with the Q. & A. part ignored like it never even happened. Which brings me to wondering about a strange type of plea changing tactic currently with no name tag (open for coined phrases), where the defense deceives clients’ into pleading nolo contendere (guilty or not) during trial just because they are on probation at time of arrest on a new unrelated charge. And with the bible thumping judges’ in on it from the get go, you get a real nightmare. Thanks.

  3. SHG

    Practices in foreign jurisdictions (including Brooklyn) often strike me as not merely strange, but wrong. I can’t begin to fathom how a plea is taken behind closed doors, but then, I never understood why some defense lawyers think it’s their place to decide whether that their clients should take pleas without asking, explaining and obtaining their approval. So yeah, I dunno.

  4. Thomas R. Griffith

    Sir, believe it or not – simply acknowledging it’s wrong to deceive clients’ has vast healing powers. Looks just as goofy as it sounds I know, but after spending over 15 yrs. & counting clearing a name tarnished via all three rails of the Texas Railroad and all along not knowing exactly what the hell happened, or if it was legal & no one wants to touch it, believe me when I say I truly appreciate your thoughts on the subject.

    *If there currently isn’t any legal branding on the books regarding the funky type of deceptive plea I had the pleasure of eating at lunch recess w/ a green baloney sandwich on trial day, then please allow me to enter – “The Griffith Plea”. The one & only Texas TapOut, where you don’t get what your family thought they were paying for that’s behind the door on the left (the dark room with the bibles’ & crosses’). Thanks a million.

  5. SHG

    Thomas, I wish there was a way I could have explained it to your lawyer beforehand. Whether the choice would have been different, I don’t know, but I absolutely know that you never were adequately and accurately informed of what was happening, and there is no excuse for it.

    As I’m sure you know, I keep pounding on the point that we, lawyers, serve clients. We may not be able to make their problems magically disappear, but we can sure as hell tell them the truth, good, bad or otherwise. Yet, far too many lawyers find even this minimum responsibility to hard for them to do.  And despite my efforts, and the efforts of others on the internet, I fear the problem isn’t getting any better. If anything, it’s getting worse, to the point where many lawyers are no longer capable of perceiving deception, seeing instead their own self-serving purposes as being enough of a reason not to concern themselves with honesty.

    You weren’t wrong before and aren’t wrong now. Blame the lawyer(s).

  6. Oliver Wendel Holmes

    I was newly court appointed US Attorney once. I picked up a case from someone else in my office who was out sick. We tried to get the defendant to plead guilty. He couldn’t do it. I asked for a recess and spoke to the defense attorney who I knew was a straight shooter-and a very good defense lawyer. He gave me the straight dope. I said screw it – and I tossed the case. Everyone was made at me, but f*** it, I was the US Attorney. That was that. I slept well. No one from DC called, the SAC didn’t call, so I guess I was right. But I never got to be crt appt US Atty again. Notice that I haven’t revealed the district here. Sometimes you have to bite the bullet or you will surely go to hell.

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