The effort immediately brought to mind the survey about how many unarmed black men were killed by cops.
The results were revealing. Overall, nearly half of surveyed liberals [sic] (44 percent) estimated roughly between 1,000 and 10,000 unarmed black men were killed whereas 20 percent of conservatives estimated the same.
Most notably, the majority of respondents in each political category believed that police killed unarmed black men at an exponentially higher rate than in reality. Over 80 percent of liberals guessed at least 100 unarmed black men were killed compared to 66 percent of moderates and 54 percent of conservatives.
The actual number for 2019 was 27, and that number failed to take into account whether the killing was otherwise justifiable. The point isn’t to trivialize the 27 dead human beings, but to highlight the absurdly high belief that was engendered by activists and allies that bore no connection to reality.
An old push has re-emerged by “experts”** to rid us of the blight of plea bargaining by creating the false impression that it’s the cause of defendants being convicted, as if they would be acquitted at trial if they weren’t coerced into pleading guilty. This is not to say that coercion isn’t real, and that plea bargaining isn’t a critical part of a massively flawed system.
This is to say that plea bargaining overwhelmingly benefits defendants by saving them from trial, where they would overwhelmingly be convicted. Bear in mind, the police get to choose whom they arrest, and the prosecution gets to choose whose case gets prosecuted, so the universe of defendants who would go to trial would overwhelmingly be those for whom the evidence of guilt is strong, if not overwhelming.
I decided to do a poll on the twitters asking only criminal defense lawyers what would become of defendants who went to trial.
This was a silly poll, and I executed it poorly. First, I didn’t include “show the results” so that non-criminal defense lawyers could see the outcome without voting. Second, I failed to distinguish between lesser state offenses, serious state offenses and federal offenses, each of which would likely give a very difference answer. Third, a surprising number of respondents failed to grasp that this was about the outcome of trial, not about any variations along the way. I really need to use smaller words in the future.
In a sense, the poll was formulated as something of a trick question. If the numbers were under 50%, who were these criminal defense lawyers pleading more than half their innocent clients guilty? Perhaps these were public defenders handling huge quantities of petty offenses where a quickie plea to a fine or community service got them out of the can, but were they experienced lawyers copping the innocent out to murder and rape?
The point isn’t whether criminal defendants are mostly innocent. They’re not. They may not be as guilty as the cops or prosecutors would have it, but that’s a variation on a theme. The question is whether they would be acquitted if they were left with no choice but to go to trial.
Would they?
Don’t assume facts not in evidence, such as going to trial as it’s currently managed would mean that the mass of cases would be dismissed for the inability to provide a speedy trial. Assume that if every defendant had to go to trial, the system would adjust to accommodate it, such as turning week long trials into one hour trials. Assume that whatever changes came, it would end up the defendants’ burden. Also, bear in mind that even if it meant that 10 petty offenders weren’t prosecuted, what about the defendant charged with serious crimes who went to trial and would get life plus cancer? Can a lawyer trade one client’s life off against another?
Also, this is not an opportunity to share your magic bullet solution to the criminal legal system. I’m sure there’s a subreddit for that and they would love to hear your thoughts. Don’t do it here.
Limiting this to serious state and federal crimes, what percentage of defendants who were forced to go to trial for lack of the safety valve of plea bargaining would be acquitted? The “experts” are working hard to create the impression that eradicating plea bargaining would be hugely beneficial to criminal defendants, so they’re trying to whip up the unduly passionate to believe that huge numbers of innocent people are being coerced into pleading guilty who would otherwise walk free. Are they right or are they creating the same absurdly false impression that the cops are murdering thousand of unarmed black men every year?
*Tuesday Talk rules apply, within limits.
**By experts, I mean people who have never have the actual experience or responsibiity of representing a defendant charged with a serious offense.
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If you include guilty of some counts even if not all or guilty of lesser included offenses only, probably somewhere in the vicinity of 85%.
But even for that guess there are too many variables: defense resources, defense lawyer competence, prosecutorial effort and competence (they ain’t all equal, either), judicial predilections and “discretionary” rulings, rogue jurors,* and god only knows what else.
It seems clear to me that too many cases go to trial that shouldn’t and too many cases are pleaded out that shouldn’t be. No surprise there, I suppose.
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*I once had a prosecutor concede to an appellate court that the judge defined an element of the offense wrong (and to the benefit of my client) but that the jurors must have understood that the judge got it wrong, come up with their own correct definition and found my client guilty. I got to stand up in rebuttal and point out that we must assume the jury followed it’s instructions, in which case the verdict was simply wrong and should be vacated. Alternatively, it was, I said, a “rogue jury,” whose verdict should be vacated. Of course, I lost the argument.
My “gut” was 80%, but given how few defendants can testify, testify well or offer any defense, I’m probably too optimistic.
I could be wrong, but I don’t think Cato ever did another criminal law panel after you.
You broke Cato!
I don’t think it is possible to come to a good estimate because of the variables that cause randomness throughout the criminal system.
Juries are more unpredictable than when I was a fuzzy cheeked young cop just starting. I’ve seen weak cases get convictions, and strong cases come back not guilty. Back then I’d have said the odds of a conviction were 90% or so. Now, probably 70-75% would be a fair guess.
I’m not sure if there are national statistics on conviction rates, but I suspect nearly all defendants who go to trial were offered deals at some point.
Also hard to incorporate in polls is expected outcome not just chance and risk-aversion of clients (thinking of game theory and the different but somewhat related prisoners’ dilemma), e.g. (assuming could assign a % chance which you can’t) 10% chance of 10+ years and registration for life as a sex offender vs. plea bargain to a lesser charge with no or minimal time served, despite the criminal record that would be attractive to many rational people. Or 1% chance of life plus cancer vs. no time served.
I can’t make any claims concerning the broader applicability of my experience, but here are a few salient facts concerning what happened to me:
1) charged with 3 counts: 2 misdemeanour, one felony
2) ADA willing to drop felony charge in exchange for plea with non-custodial sentence
3) all plea offers rejected
4) arrived in courtroom ready for trial on scheduled trial date – only judge, ADA, arresting officer and my attorney only ones present
5) ADA announces that he has just learned that the “victim” has just arrived; judge says something like “ok let’s get this trial started then”
6) ADA responds by by saying “I don’t think there’s going to be a trial” implying that the evidence was so overwhelming he doubted I would be dumb enough not to accept the plea deal
7) trial ended in acquittal about 20 minutes later because ADA was so certain I would take a plea they evidently didn’t bother to review their own evidence which not only didn’t prove their case, it demonstrated beyond any doubt that nothing happened as prosecution alleged and that it was impossible that I did what I was accused of. The jury probably spent more time on a bathroom break than they did deliberating. Prosecution simply didn’t look at their own evidence.
Again, no way for me to know to what degree this was an outlier or typically representative but I believe it’s very common for prosecutors to be careless about reviewing trial materials because they assume it’s not going to trial. Their caseloads probably often don’t allow it even if they wanted to. Their confidence in getting a plea was not based on the quality of the evidence they possessed, but on the huge disparity in penalties I faced by going to trial vs the slap on the wrist plea deal they were offering. They just didn’t believe anyone would risk it so they didn’t prepare for that eventuality.
I’ve posted your comment to allow you the catharsis, for whatever that’s worth, but it contributes nothing.
It contributes as much as what you freely admit is an entirely non-scientific poll. In the absence of hard evidence, anecdotal data is all we have. It would be quite simple for a DA to create an experiment in which a random sample of cases were not given a plea option and compare the outcomes with that group against the rest and then we’d no longer need to conjecture about the answer. But it will never happen because DAs are afraid of the result, in the same way that they claim they do a responsible job but won’t surrender absolute immunity and subject themselves to civil liability for any failure in the way that every other profession is.
“Limiting this to serious state and federal crimes, what percentage of defendants who were forced to go to trial for lack of the safety valve of plea bargaining would be acquitted?”
Not lost is the question here is the opposite of the tweet. Though I’m not a CDL, but deal and read afterward, including the transcripts and appellate opinions, maybe 10% get acquitted. Between reporting of major cases and jurors showing only because they want to or feel it a civic responsibility, they don’t have much of a chance.
Besides, everyone knows they’re guilty.