On June 26, 2017, I rejected the proffered plea agreement in United States v. Charles York Walker, Jr. after determining that it was not in the public interest. On October 10, 2017, I rejected the proffered plea agreement in United States v. Antoine Dericus Wilmore after determining that it also was not in the public interest. In both opinions, I stated that it is the court’s function to prevent the transfer of criminal adjudications from the public arena to the prosecutor’s office for the purpose of expediency at the price of confidence in and effectiveness of the criminal justice system.
I have further reflected upon the near-total substitution of plea bargaining for the system of justice created by our nation’s Founders, and I FIND that I should give great weight to the people’s interest in participating in their criminal justice system when considering whether to accept or reject a proffered plea bargain in a particular case. I FIND that the scales of justice tip in favor of rejecting plea bargains unless I am presented with a counterbalance of case-specific factors sufficiently compelling to overcome the people’s interest in participating in the criminal justice system.
Therefore, in each case, I will consider the case-specific factors presented to me and weigh those competing factors against the people’s participatory interest and then determine whether to accept or reject the plea bargain. Because I FIND that the presented justifications for the bargain in this case are insufficient to balance the people’s interest in participating in the criminal justice system, I REJECT the proffered plea agreement.
As Doug reacted, “Wowsa! #morejurytrials?” And, indeed, this was very much the subject of discussion at the Cato “Criminal Justice at the Crossroads” conference in October, 2017. Cato’s crim law honcho Clark Neily argues vehemently for the return of the criminal trial. I agree with him, but at what price?
Judge Goodwin’s rationale is that plea bargains, essentially dictated by the government through its charging decisions, mandatory minimums and the Sentencing Guidelines, deny “the people’s interest in participating in the criminal justice system.” To be blunt, I couldn’t care less about the people’s participation. This isn’t a game for the “people’s” amusement.
There are two concerns at stake in a criminal prosecution, the authoritarian interest of the government, which could be characterized as “the people” is one assumes that government reflects popular will, The other concern is that of the defendant, the person accused, because he’s the guy who will suffer the penalty should the prosecution make its case.
Does that mean the prosecution should be compelled to “make its case”? Sure. Why not? Well, there is a very real, very hard, very cold answer to “why not.” Because it will likely cost the defendant years, maybe decades, in prison.
The problem is that we’ve created a Rube Goldberg machine of fixes, each of which takes its toll on the system. One can argue the virtues of each fix standing alone, but the defendant in the trenches (and his lawyer) faces the impact of the totality of each bit of brilliance.
Trials are good? You bet they are. But most defendants will lose at trial. On the one hand, most are guilty, even if not as guilty as the government says. On the other, few defendants are well-positioned to go to trial even if they’re completely innocent. This is the sort of realism that criminal defense lawyers face but non-lawyers just can’t accept.
The government can wrap its case around upstanding federal agents, trained to testify so that they can pretty much wriggle out of any lie, or just fudge the edges as needed. They can bring in the heinous conduct of others under conspiracy, making the kid who runs for coffee at the barbershop come off as culpable as Tony Montana. So what if the evidence is mostly empty rhetoric and malarkey? It works. It works really well with you, dear jurors. We know this because you convict based on it all the time.
But what about the defendant? Doesn’t he deserve the chance to present evidence, to testify, to defend himself? Absolutely. Except the defendant will make a terrible witness. He can barely get his name right, will be goaded into outrage within seconds, will say the absolute stupidest thing possible no matter how many times you explain to him why he shouldn’t. Then there’s his priors, the 32 petty drug busts he did because he had to eat, but which will be used to conclusively prove he put his self-interest above society and would rape babies if he could.
Try a case and then tell me how this looks from your perch atop the unicorn prancing on rainbows. Try a dozen. Try a hundred. It all seems so sanitary from a distance, but it’s a royal mess up close. Defendants are rarely cut out for trial. And they can’t take the pressure.
But then, their plea deal goes from 121 months to 187 after trial. Or 292. Or forever. There is something worse than an innocent defendant spending ten years in prison, and that’s an innocent defendant spending his life in prison. But Judge Goodwin is worried about the public’s interest?
If defendants could go to trial and get the same sentence as was offered in the plea bargain, then it wouldn’t matter. But that can’t be, since there would be no incentive to cop a plea if you could take a shot at acquittal and pay no price for it. But if the price was only modest, say the plea term plus another 10% as the trial tax, defendants would take the chance. They would still lose, for the most part, and still bite the big one as witnesses, but the cost of trying wouldn’t be absurdly high.
If Judge Goodwin wants to protect the public’s interest in participating in the criminal justice system, that’s great. But fix the back end for defendants first, so they aren’t paying the price. The cost of public participation shouldn’t be the defendant’s life. Wowsa.