Dark Pleas, Light Pleas, No Pleas

Should you vote for Michael Donnelly for the Ohio Supreme Court? Beats me.* As he’s been a trial judge on the Cuyahoga County Common Pleas Court for 13 years, and was a prosecutor from 1992 through 1997, he’s been around long enough for lawyers who have practiced against him and before him to form valid opinions. For all I know, he may be a great choice.

But this Daily Kos interview is troubling. The first question sets the tone.

Transparency in the plea-bargaining process is a major platform of your campaign. Can you explain why?

After noting the obvious, that about 97% of cases are disposed by plea, Judge Donnelly raises his concern.

I believe part of the reason why there exists so much perceived injustice and disparity of treatment in our system is because the law provides very little guidance to judges on how to exercise their power to approve or reject negotiated plea agreements. Indeed, a defendant in a criminal case has no right to even be offered a plea agreement.

Non-sequiturs always strike me as unsettling, but then comes buzzword part about “transparency.”

In our state, many pleas are finalized in off-the-record discussions that usually take place in a judge’s chambers. Early in my first term as a judge I began to question why this occurs and I arrived at the conclusion that NO ONE in the process should ever say anything in these discussions that they would not be willing to repeat verbatim on the record.

Making the sausage of pleas is no less unattractive than most other legal things, The reason for private discussion is that things may be said that are unpleasant, such as the “victim” comes off as a liar or a nutjob, or that the defendant has some particularly nasty priors which have no bearing on guilt in the case but make him a dude unworthy of excessive empathy.

I also concluded that stakeholders such as the accused, the victims, and the general public should have the right to be present when these agreements are finalized. For these reasons, I chose early on to have all discussion in open court and on the record, so everyone can understand how cases are being resolved. I believe this transparency fosters confidence in the judicial process.

The “stakeholders” buzzword, like “transparency,” is a distant second to “victims,” because everybody cries for victims. Except they aren’t a stakeholder at all, although new laws like “Marcy’s” play upon the public’s heartstrings to manufacture new rights for victims. Is he saying he’s a fan of a third table in the well for the victim?

Being antagonistic to plea bargaining, in general, is hardly new. The “dying jury trial” has been a source of concern and discussion for a while now, and with good reason. But Judge Donnelly raises some specific types of pleas that he finds unacceptable.

Baseless pleas occur when the accused is allowed to resolve a charge by pleading to another charge that does not resemble the original accusation. These types of resolutions are barred in the federal court system because they are inconsistent with the courts’ main objective to seek the truth.

Is “truth-seeking” really the courts’ main objective? That may come as a shock to many, given that many consider the faithful application of law to be the main objective, and that often means the truth is never sought. Then again, some wag might suggest that fact-bargaining is a staple of federal pleas, and hardly barred.

I have a blanket policy for plea agreements in my courtroom. If a prosecutor presents a resolution that does not in any way resemble the original accusation, I require him or her to state facts on the record that, if true, support what the defendant is admitting to in order to resolve the case. If they can’t, the plea is baseless and I won’t approve it.

There is a reason for “baseless” pleas. A primary obstacle to a plea bargain may be the collateral consequences, mandated by legislation, such as losing a professional license, life on the sex offender registry or deportation. So a deal is cut to circumvent the collateral consequence while enabling the primary consequence. You get the same time in prison, but not the mandatory collateral consequence. One would expect a 13-year judge to know this.

But then things get even “darker.”

I coined the phrase “dark plea” to describe a particularly nefarious practice exercised all too frequently by prosecutors against incarcerated individuals who claim that they are actually innocent and request a new trial.

By post-conviction motion, prisoners will move to vacate their convictions based on DNA, for example. They have no right to a hearing, but if one is granted, boom.

If the prisoner, however, is fortunate to be granted a hearing, a dark plea will occur on some occasions prior to the hearing being held. The prosecutor essentially dangles the opportunity of freedom in exchange for a plea of guilty to the charges in which THEY HAVE ALREADY ACHIEVED A CONVICTION! It is the legal equivalent of putting a gun to someone’s head to extract a confession—offering a plea when the prisoner is in a state of complete uncertainty with no leverage to negotiate. In my opinion, it is completely at odds with the tenets of truth and integrity of convictions.

To get a hearing on a post-conviction motion is a big deal, and a prosecutor knows it. But then, so do the defendant and his lawyer, assuming he has one. The problem is that getting the hearing doesn’t guarantee a defendant winning the hearing. The prosecutor may lose, but the defendant may lose as well. To protect his conviction, which may well be a good faith position by the prosecution as it sincerely believes the defendant to be guilty, they make an offer to reduce the sentence or, maybe, even let him out immediately.

Of course the defendant “is in a state of complete uncertainty.” If there wasn’t uncertainty, there would be no reason to negotiate. But the alternative to uncertainty isn’t freedom; he could just as easily spend the rest of his life in a cell. And he knows it. How is it possible Judge Donnelly doesn’t?

The interview shows that the judge plays a good game of buzzword bingo, but his discussion of the “problems” with pleas is more than a little disingenuous. Sure, they played well at Daily Kos, where kind words like transparency obscure thought, but if Judge Donnelly is to sit on the Ohio Supreme Court, he really ought to know why these basic things happen in the process and be more circumspect before making the defendant’s situation even worse than it was before.

*Edit: I’m informed by Gamso that Judge Donnelly won and will shortly be an Ohio Supreme.

H/T Carissa Byrne Hessick, who apparently thought better of the interview than I did.

14 thoughts on “Dark Pleas, Light Pleas, No Pleas

  1. wilbur

    Judge Donnelly also says:
    “In criminal cases, you are entitled by law to have an attorney represent you. This is not the case in civil disputes. We must work on policies that provide better access for people who cannot afford legal representation, so that they can have confidence that their interests will be protected in our court system. And you, the public, are going to have to pay for it by paying a lot more taxes.”

    OK, I made up that last sentence. I believe in transparency too.

    1. SHG Post author

      I stopped before his A2J answer because that would have required another thousand words, minimum, and I couldn’t do that to you.

      1. Ross

        Better a thousand words from you, SHG, than 10 from a SJW.

        This judge seems to be another in the current trend of judicial candidates who act like the Orange one and go with what their gut says, rather than what the law is or doping some actual thinking. I know, thinking is hard, and occasionally produces unpopular results that subject the judge to horrible criticism, but that’s why they make the big bucks.

  2. Sol Wisenberg

    “Baseless pleas occur when the accused is allowed to resolve a charge by pleading to another charge that does not resemble the original accusation. These types of resolutions are barred in the federal court system because they are inconsistent with the courts’ main objective to seek the truth.”

    Presumably he’s thinking about Relevant Conduct under the Guidelines. But he’s still incorrect. Rare? Yes. Barred? No.

    1. SHG Post author

      It’s unclear if he’s talking about relevant conduct (which bites), which makes it even worse for the defendant, or fact-bargaining to get the weight or loss under the mandatory mins or life plus cancer guidelines.

  3. joe b

    SHG’s take seems reasonable, but i think i am with the judge on one point: the “have all discussion in open court and on the record” point– or at least the “on the record” part of that point.
    In 2007 or so, a Penn neurosurgery professor pled no contest to sexual assault in return, he claimed, for a no jail sentence. When the crowd went wild over the purported leniency of that deal, the “Prosecutors den[ied] that any plea-bargain agreement was made” (as the Penn newspaper put it). Somebody is not telling the straight poop, and a recording would let us know which–or better still, prevent the he said/he said debate in the first place

    1. SHG Post author

      Unless there’s a written plea agmt, there’s no plea until it’s a done deal. We all know that, and the question is how people found out (and went wild) before the plea was taken. If it was the deft, he screwed up. If it was the prosecutor, he either tested the waters before the plea was done or he screwed up.

      Point is, the deal can blow apart by either side until it’s either reduced to writing or taken in court. That’s how this game is played.

  4. Kurt

    I hope you’ll indulge me a moment in my (layman’s) efforts to understand…

    “Is “truth-seeking” really the courts’ main objective? That may come as a shock to many, given that many consider the faithful application of law to be the main objective, and that often means the truth is never sought.”

    Assuming (and I know what that sometimes means) the normal course of a trial, that is, no plea bargains, etc., doesn’t the faithful application of law mean some determination that there was, or wasn’t, conduct on the part of the defendant that allows that application of the law? Isn’t there normally some finding of fact by (assuming there is one) a jury as to the events and conduct?

    And, is that not at least some shade of truth?

    Or am I again, as an ignoramus (a condition I seek to cure) grasping the wrong end of the stick?


    1. SHG Post author

      Trials are, theoretically, a “search for the truth,” so you’re not wrong, but within the limits of the law. For example, if evidence was unlawfully seized, it isn’t admissible at trial even though it’s “truthful.” Same with a confession taken unlawfully. But that’s trial, one aspect of the system, not the system itself.

  5. B. McLeod

    So many cases are resolved by plea that the notion of forcing the negotiations into open court makes a degree of logical sense. One of the reasons this alternative system has essentially taken over is that the public will not pay for a system where every case that should be tried can be tried. Taxpayers should be afforded the opportunity to see and understand the inner workings of the system that has become our substitution for trial. I am in favor of that part of the judge’s thesis.

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