Via Doug Berman, a new  law review article from University of Texas lawprof Susan Klein suggests that Gideon, having failed to deliver on its promise, the criminal justice system has been turned into the plea bargaining system.

Yet fifty years later, indigent defendants, (who comprise 80% of total defendants), often get substandard counsel, and innocent individuals are rarely, but sometimes convicted or plead guilty. Some of the blame falls squarely on the Court for settling on the contours of our current two-pronged test in Strickland versus Washington, that determines when counsel is ineffective and the defendant is accordingly prejudiced. Some blame falls on legislators for failing to adequately fund defense counsel. Our criminal justice evolved from an adversarial system to what Judge Lynch calls, “a defacto administrative regime”. The criminal justice system is the plea bargaining system.

A good thing? Hardly, Klein submits.

In this essay, the author posits that last term’s Lafler versus Cooper and Missouri versus Frye gave us another chance to both police equality of sentences for the guilty, and to mandate better investigation of the underlying offense to ferret out the innocent. Information and resource disparity skews the system. The defense bar cannot buck a system stacked so heavily against them. Large-scale structural reform such as legislation or proper funding for defense is equally unlikely. Plea bargaining has failed.

So if the adversarial system has failed, and plea bargaining has failed, what to do?

Professor Klein suggests that our most politically feasible hope for reform is for federal and state judges to amend the rules of criminal procedure in order to monitor and record the discovery and plea negotiation process via nonwaivable conferences.

Judges? Because judges have invariably demonstrated fairness, thoughtfulness, concern and intellectual honesty in the performance of their duties. I wonder…wait a second. Judges? The same ones who deny motions when the cop gives the same ridiculously perfect testimony about furtive gestures and combat stances, shirk off responsibility for violations of the Constitution because, you know, the guy is guilty anyway? Those judges?

There is an inexplicable, nearly religious belief in the inherent propriety of the judicial system. It’s reflected in the adoration of the judiciary, as if they’re some higher breed of organism, inherently possessed of qualities to which mere mortals can only aspire. Smart. Fair. Neutral. 

Has anyone who can think this every been in a trial level court?  Have they ever tried a case, argued a motion, sat for hours on a hard bench awaiting their 30 seconds of face time with the robed jurist who takes three second to carefully read the papers you spent a week preparing before uttering the word “denied”?

Granted, clearing the calendar is a strong motivator for judges. No one gives them a bonus for not agreeing to put innocent people in prison, but they are well-regarded for getting bodies off their docket. 

If the judges who we turn to in our hard-fought effort to get the one in a hundred, maybe a thousand, ruling that might save a life are engaged in the plea bargaining process, then we reveal a soft underbelly in advance.  If we’re actively interested in a plea, how then can we authoritatively argue that the same person is innocent, or even less guilty than the prosecution suggests? 

While there are most assuredly lawyers who want only a plea, and they want it now so they too can clear their overwhelmed calendar or save themselves from another appearance for which there will be no additional compensation, should we reinvent the system for their benefit?

But if her trust the judges idea doesn’t pan out, Klein has a plan B:

A second proposal is for the Department of Justice and local District Attorneys’ Offices to implement internal guidelines to regulate the timing and content of plea negotiations and discovery procedures. Though the Court imposed its new Sixth Amendment duties on the defense bar, it is prosecutors who have the incentive to ensure the finality of guilty pleas and to stave off potentially harsher legislative or judicial action in this area.

Trust the prosecutors. After all, they don’t want bad pleas to drive “potentially harsher legislation,” since legislators and judges are deeply concerned with whether plea bargains, once accepted, are improper because of defense counsel’s ineffective assistance.  And like judges, prosecutors are smart, honest and fair, if properly motivated.

What is striking is that Susan Klein has essentially wiped the role of criminal defense lawyers out of the process, as they are the ones providing “substandard counsel” who have put innocent defendants in prison. She contends there is no point in expecting defense lawyers to do their job, or to get legislatures to properly fund indigent defense, or to get judges to formulate a more viable standard for ineffective assistance than Strickland v. Washington.  Mind you, those would be the same judges who can be entrusted with overseeing plea bargaining to assure that innocent defendants don’t cop out.

But Klein’s premise is wrong. It is an adversary system. It is a deeply flawed system, but it is and must remain adversarial.  Even plea bargains, the blight that they are, rely on its being an adversarial system, for there is no incentive to offer a defendant a reasonable plea if there is no meaningful threat of trial and possible acquittal.

But what of all those defendants, real or imagined, who get railroaded into guilty pleas when they are innocent or overcharged?  Consider that the forces that push people to do this, whether as lawyers or defendants, are under the control of prosecutors and judges. They are causing the problems that Klein seeks to fix by overcharging, concealing Brady, knee-jerk denials, knee-jerk crediting police testimony, cattle call calendars, ever-increasing criminalization, ever-increasing sentences. And the list goes on. 

And yet she thinks the solution is to put even greater trust in the fairness and integrity of judges and prosecutors?  Pass.

Or as my pal  Charon QC might put lawprof Susan Klein’s quest to save plea bargaining: