No More Plea Bargains?

When I woke up this morning and read in the Omaha World-Herald that Gage County Attorney was implementing "no more plea bargain" policy, I assumed it was another prosecutor grandstanding about being "tough on crime." But, as I frequently say to prosecutors, the truth is a little more complicated than it appeared at first glance. First, the reason for the change:

With the shadow of the "Beatrice Six" hanging over his head, Gage County Attorney Randall Ritnour announced Friday that his office would no longer offer or accept plea bargains in felony cases involving adults.

Six people were wrongfully convicted in a 1985 murder case in Beatrice, with four giving detailed statements — apparently false — confessing to their involvement in the brutal attack, rape and murder of a 68-year-old woman. Some later said they cooperated with authorities to avoid being charged with a crime that could send them to the electric chair.

The reason I'm not skeptical after reading the article? Doesn't it seem like a prosecutor who's willing to speak this frankly deserves at least a chance to demonstrate that his policy is for the benefit of the system rather than his own reelection chances?

It is not necessarily a hard-nosed approach, he said. In fact, in some cases defendants may face lesser charges if he doesn't think he can prove a more serious charge at trial. He said the new philosophy will require him and his two full-time deputies to carefully consider the charges they file against people.

"This prevents overcharging," Ritnour said. "You will see at certain times that law enforcement or prosecutors will throw whatever they can at somebody, hoping something will stick while other charges get thrown out in a plea bargain. We're going to see what we should charge people with and stick with it."

I am still very skeptical that Ritnour can make this work and drive plea bargaining out of the equation. For example, as shown in the quote below, some defendants will and should balk at the prospect of "cooperating with police and prosecutors" simply for a recommendation of lenient sentencing for a felony charge. For my clients, especially those charged with a felony for the first time, the prospect of a reduction to a misdemeanor is a significant motivator.

Before I went to law school, I worked for a company that helped ex-felons find jobs, so it was brought home to me how difficult it can be to convince an employer that the "F" on your record wasn't that serious. For most job applicants, the "F" becomes the filter that separates them from the other applicants and leaves them jobless, more likely to succomb to recidivism. Hopefully, for defense attorneys and their clients, the risk of "cooperation" (in its current definition) will be too high a price to pay when they still face an "F" on their record which could haunt them the rest of their lives.

Here's what Ritnour says that makes me skeptical, more because of knowledge about the current system than the words he chooses:

Ritnour said that if a defendant cooperates with police and prosecutors or provides testimony against a co-defendant, he will join with defense lawyers in recommending a lenient sentence, but he will not reduce charges.

I guess it depends on what Ritnour means by "cooperates with police and prosecutors." Does he mean becoming a snitch, risking ending up dead in a dumpster (as the story I heard in the P.D's office goes) or does he mean getting involved in drug treatment? The devil will be in the details.

One of the dangers of working in the "Justice System," in any role, is the potential to succomb to cynicism, to assume that any new idea will fall victim to the same old temptations and corruptions of power that taint the current system. Still, statements like this give me reason to hope that this new policy deserves a chance:

"Our point is to do the right thing, and the right thing is to charge people with the crime they actually committed, not to bounce around making deals."

There's a quote, the source of which I forget, about cross examination being the greatest engine for ferreting out the truth mankind has yet produced. The statement is true as long as the weapon is wielded effectively.

The same applies to jury trials. If Ritnour's approach is to stop overcharging and let more juries decide the outcomes of cases, I applaud his efforts. But if the abuses of the current system, such as "trial taxes," are not eliminated, this will end up being the same old wine in a new bottle.

I'm willing to give it a taste first, before I label it from a distance, however.

More on Jim Webb

Yesterday I wrote about Sen. James Webb's goal of reforming the prison system in the U.S. The Washington Post article describing Webb's goal referenced a story Webb wrote for Parade magazine back in 1984:

A journalist at the time, he was working on an article about Ed Arnett, an American who had spent two years in Fuchu Prison for possession of marijuana. In a January 1984 Parade magazine piece, Webb described the harsh conditions imposed on Arnett, who had frostbite and sometimes labored in solitary confinement making paper bags.

"But, surprisingly, Arnett, home in Omaha, Neb., says he prefers Japan's legal system to ours," Webb wrote. "Why? 'Because it's fair,' he said."

The Senator's "Webbsite" has a link to the original article, entitled 'What we can learn from Japanese Prisons," which describes Arnett's experience in the Japanese legal system and, later, one of its prisons:

FUCHU PRISON, near Tokyo is home to 2500 of Japan's most hardened criminals. Ed Arnett is an alumnus who thinks of Fuchu daily. The dank, unheated buildings, the harshness of the guards' reports to their superiors, the high stone walls--these are as near to him as the scars on his legs, from the frostbite he picked up in his Fuchu cell.

"I didn't know I could still cry until I went to prison in Japan," says Arnett, convicted in 1979 for possession of two kilograms of marijuana. "I wouldn't put that experience on anybody."

How does Arnett rate this harsh experience compared to the prison system in his own country?

But, surprisingly, Arnett, home in Omaha, Neb., says he prefers Japan's legal system to ours. Why? "Because it's fair," he says. "The never tried to trick me, even in interrogation. They were always trustworthy. 1 could have got five years and they gave me two. The Americans who were helping them wanted me to get 20. The guards at Fuchu were hard, but they never messed with you unless there was a reason. You didn't have to worry about the other prisoners coming after you, either. And the laws of Japan are for everybody. That's the main thing. The laws in this country depend on how much you can pay. I'd rather live under a hard system that's fair."

'An Act not of Weakness but of Strength'

It's great to hear that Virginia Senator Jim Webb has set his sights on reforming the prison system in the U.S. As the Washington Post article states today:

This spring, Webb (D-Va.) plans to introduce legislation on a long-standing passion of his: reforming the U.S. prison system. Jails teem with young black men who later struggle to rejoin society, he says. Drug addicts and the mentally ill take up cells that would be better used for violent criminals. And politicians have failed to address this costly problem for fear of being labeled "soft on crime."

It is a gamble for Webb, a fiery and cerebral Democrat from a staunchly law-and-order state. Virginia abolished parole in 1995, and it trails only Texas in the number of people it has executed. Moreover, as the country struggles with two wars overseas and an ailing economy, overflowing prisons are the last thing on many lawmakers' minds.

But Webb has never been one to rely on polls or political indicators to guide his way. He seems instead to charge ahead on projects that he has decided are worthy of his time, regardless of how they play -- or even whether they represent the priorities of the state he represents.

As I wrote earlier, this troubling New York Times article describes how:
- The U.S. "has 751 people in prison or jail for every 100,000 in population.
- Russia is second with 627 prisoners for every 100,000 people.
- England’s rate is 151; Germany’s is 88; and Japan’s is 63.

No wonder Webb thinks Japan's prison system could become a model for ours:

Still, Webb said, the United States could learn from the Japanese system. In his book, "A Time to Fight," he wrote that the Japanese focused less on retribution. Sentences were short, and inmates often left prison with marketable job skills. Ironically, he said, the system was modeled on philosophies pioneered by Americans, who he says have since lost their way on the matter.

Webb believes he can guide the nation back. "Contrary to so much of today's political rhetoric," he wrote, "to do so would be an act not of weakness but of strength."

Don't Force Divorce

Here is an excellent slideshow of the faces of those affected by the push to nullify gay marriage in California. Maybe I've missed these in the past, but this seems like an amazing way to bring an issue down to the heart level. I recently found out that a friend of mine was married earlier this year in California and now, after witnessing the passage of Prop 8, she has to worry about the legality of her marriage being in jeopardy. Finding that out, and seeing pictures of the wedding last weekend, really brought the issue "home" for me. Whether you know someone who's affected or not, the slideshow will likely bring the issue "home" too.

Does He Who Makes the Rules Get to Break Them Too? (UPDATED)

When I was sworn in as a Nebraska lawyer, I took the following oath:

"You do solemnly swear that you will support the Constitution of the United States, and the Constitution of this state, and that you will faithfully discharge the duties of an attorney and counselor, according to the best of your ability."

It's similar to the oath George Bush took and that Barack Obama will take in that it requires the taker to "support [and uphold] the Constitution of the United States." Since I practice criminal defense law, I'm constantly asked, in defending my clients at sentencing and upon requesting a particular sentence, whether subjecting the person standing beside me to the penalty I request will deter lawbreaking in the future.

We ask that question automatically in criminal court and I find myself addressing it frequently as people ask me, "how can you defend those people?" This common question assumes somehow that "these people" are almost all guilty, that I'm a little suspicious for standing beside them, and that "these people" are not sufficiently punished, likely through my efforts, in court.

This question springs from a common, modern belief in America that somehow we're not punishing criminals enough and that punishment alone will deter criminals. As I've written before, however, (quoting from the New York Times) it's not like we haven't tried punishment through incarceration at alarming rates. As the NYT article I referenced in that post shows: "The United States has less than 5 percent of the world’s population. But it has almost a quarter of the world’s prisoners." The article goes on to show that:

- Americans are locked up for crimes — from writing bad checks to using drugs — that would rarely produce prison sentences in other countries.
- And in particular they are kept incarcerated far longer than prisoners in other nations.
- Criminologists and legal scholars in other industrialized nations say they are mystified and appalled by the number and length of American prison sentences.

But what do you do when a political leader goes on national t.v. and admits to approving waterboarding, as Dick Cheney did last week? Do you, like Mayor Diamond Joe Quimby create a "blue ribbon commission" to investigate, which will likely take up enough time to ensure that criminal prosecutions growing out of it are very unlikely because of statute of limitations issues?

Do you appoint a Republican prosecutor, like Patrick Fitzgerald, to investigate and potentially prosecute the Bush, Cheney, Yoo, Addington, et al, as Greenwald called for on Bill Moyers' Journal last week? Do you simply forgive, forget and move on, as many beltway Democrats will likely prescribe?

As Glenn Greenwald shows, mainstream media calls for prosecutions are growing, as are cries for forgiving and forgetting?

Greenwald yesterday addressed the question "If criminal penalties are removed, what will deter lawbreaking by political officials?" Ironically, in a country with 1/20th of the world's population and 1/4th of its prisoners- which constantly asks itself the question "but won't letting this potential criminal off easy promote disrespect for and violation of the law in the future?"- it has somehow become fashionable to suddenly forgive and forget when it comes to potential criminality on the part of political leaders.

Molly Ivins (in a column I can't find) once said she thought the country which believed it essential to prosecute Nixon had now lost its appetite to prosecute its leaders. This is dangerous whatever your political stripe as not only do we not want to allow law breaking to go unpunished, we certainly don't want to create a climate in which "some pigs are more equal than others" as occurred on the Animal Farm.

In short, if our leaders, who each take oaths to defend and uphold the Constitution, violate it, even having the gall to admit this on national television, they need to be prosecuted in the same way those who carried out their orders were brought to court to answer for these crimes. This should be the case whether we're discussing Obama or Bush, Biden or Cheney, Democrat or Republican. In America, the "law is king" and the Equal Protection clause ensures that, in America, no one is above the law, no matter what his political party.

But when that portion of the Constitution is not enforced against the leaders who swore to uphold it, the system fails and a failed system can only result.

Along these lines, what can we do as lawyers to ensure that the law is applied equally to leaders and laypeople alike? When you defend people, whom the law does apply to (with a vengeance!) it can be difficult to find the time to stand up against a drive to make it not apply to the powerful or the money to give to those who have taken on this fight.

Why not sign a petition aimed at compelling Democrats to seek prosecution of the Bush administration who violated the law of the land and the Constitution they swore to uphold? The American Freedom Campaign is assembling a petition to do just that, which reads:

"We are lawyers and law students in the United States of America. As such, we have all taken (or will be taking) an oath obligating us to defend the Constitution and the rule of law from those who would violate and subvert them, and to hold wrongdoers accountable.

We believe the Bush administration has committed numerous offenses against the Constitution and may have violated federal laws. Evidence exists that it has illegally spied on Americans, tortured and abused men and women in its direct custody, sent others to be tortured by countries like Syria and Egypt, and kept people in prison indefinitely with no chance to challenge the bases of their detention. Moreover, the administration has blatantly defied congressional subpoenas, obstructing constitutional oversight of the executive branch.

Thus, we call on House Judiciary Chairman John Conyers and Senate Judiciary Chairman Patrick Leahy to launch hearings into the possibility that crimes have been committed by this administration in violation of the Constitution, federal statutes, and international treaties. We call for the investigations to go where they must, including into the offices of the President and the Vice President. Should these hearings demonstrate that laws have in fact been broken by this administration, we support all such legal and congressional actions necessary to ensure the survival of our Constitution and the nation we love."

Patrick Fitzgerald (who was nominated to his current position by Republican Senator but who has also taken many steps to disassociate himself from either political party) has the expertise, independence and commitment to the rule of law to pursue these prosecutions. There's an old Jewish proverb I think of frequently that says "He who has the gold makes the rules." This may simply describe human nature and the nature of power. But today this proverb is in danger of becoming "He who has the gold (and the power) and breaks the rules later escapes them" we are in real trouble, as the King, who proclaimed himself above the law and that we therefore had to rebel against and defeat, has returned to power.

UPDATE: In response to a comment by former federal prosecutor and Firedoglake diarist Looseheadprop, I revised the post above and removed any reference to Fitz being a registered or affiliated Republican. After leaving the comment below, I did some research and found that the nomination of Fitz by Sen. Fitzgerald (no relation) drew his party's wrath, especially that of Karl Rove. Fitz apparently even changed his registration from "independent" to "none" after discovering that "independent" denoted a party, which he sought to avoid.

My mistake; you don't have to "lighten up" after all. I'm just happy you stopped by to correct my mistake. I always enjoy your well-researched work at FDL.

Denial of Due Process?

I helped my friend write a brief a few months back. The issue was whether a statute which stated:

any presentence report . . . shall be privileged and shall not be disclosed directly or indirectly to anyone other
than a judge, probation officers to whom an offender’s file is duly transferred, the probation administrator or his or her designee, or others entitled by law to receive
such information, including personnel and mental health professionals for the nebraska state patrol specifically
assigned to sex offender registration and community notification for the sole purpose of using such report or examination for assessing risk and for community notification of registered sex offenders. ... the court may permit inspection of the report or examination of parts thereof by the offender or his or her attorney, or other person having a proper interest therein, whenever the court finds it is in the best interest of a particular offender.

requires the court to make a finding of "best interests" finding before allowing the prosecution to review the PSI.

In short, the issue was whether the prosecutor was (1) automatically entitled to review the report (a member of the group of "others entitled by law" to review the PSI) or (2) whether he or she was- like the Defendant and his or her attorney- not automatically entitled to review it until the court found that viewing it was in the Defendant's best interests.

Note that if the Nebraska Supreme Court found that the prosecutor was a member of group (1), an absurd result, where the prosecutor saw it and the Defendant could not, was bound to happen. After all, if the prosecutor doesn't have to ask before viewing this "privileged" document and the defendant does, all it takes is for one judge to say no before a situation arises in which the prosecutor and the probation officer have access to a document that the Defendant doesn't, prior to sentencing.

The opinion was released today and that's exactly how the court ruled:

In order to facilitate full adversary testing of issues relevant to sentencing, it is necessary for the prosecutor to have access to information in the psI in order to evaluate factors relevant to
sentencing and make informed arguments to the court regarding the proper sentence. For these reasons, we conclude that prosecutors are among the “others entitled by law to receive” the information in a psI under § 29-2261(6). We conclude as a matter of law that because prosecutors
are “entitled by law to receive” the information in the psI, it is not necessary under § 29-2261(6) for a court to determine whether it is in the best interest of the defendant before allowing the prosecutor access to the psI. We therefore conclude that the county court did not err in overruling albers’
motion to preclude review of the psI by the prosecuting authority and that the district court did not err in affirming such decision.

However, compare the Court's reasoning below with the statute above:

[S]entencing is a critical stage of a criminal proceeding, Mempa v. Rhay, 389 U.s. 128, 88 s. Ct. 254, 19 L. ed. 2d 336 (1967), and the information in a psI is relevant to sentencing. In order to facilitate full adversary testing of issues relevant to sentencing, it is necessary for the prosecutor to have access to information in the psI in order to evaluate factors relevant to sentencing and make informed arguments to the court regarding the proper sentence.

If sentencing is a "critical stage" and "full adversar[ial] testing of issues relevant to sentencing, it is necessary for the prosecutor to have access to information in the PSI... to evaluate factors relevant to sentencing and make informed arguments... regarding the proper sentence" then how can the statute at issue not violate due process since it requires the Defendant to ask the judge to view this document but entitles the prosecutor automatic access "as a matter of law?"

It's not surprising that a Court would exalt a prosecutor- that's the age we live in- but in exalting him in this way, didn't the Nebraska Supreme Court create a scheme that violates Due Process? All it takes is for one judge to say no to a Defendant and the prosecutor will see what the accused cannot.

If "it is necessary for the prosecutor to have access to information in the PSI" but also necessary for the Defendant to ask the Court before doing so, and likely that a court will soon say no, how is Due Process not violated by this interpretation?

Will someone help us appeal this issue to the U.S. Supreme Court, to avoid this absurd result?

The Velveteen Rabbit

It doesn't have much to do with criminal defense work or the law in general, but I found the quote below in a stack of books my kids have long forgotten. It's from The Velveteen Rabbit and it reminded me of last weekend and of my trip to TLC:

"What is Real?" asked the Rabbit...

"It doesn't happen all at once," said the Skin Horse. "You become. It takes a long time. That's why it doesn't often happen to people who break easily or have sharp edges, or who have to be carefully kept. Generally, by the time you are Real, most of your hair has been loved off, and your eyes drop out and you get loose in the joints and very shabby. But these things don't matter at all, because once your are Real you can't be ugly, except to people who don't understand."

The part about being real not happening to people who "break easily" reminds me of the Hemingway quote that says "the world breaks everyone, and afterward, some are strong at the broken places." Not everyone becomes real and not everyone learns to become stronger at the broken places, but some succeed.