In the course of reporting the recent Observer feature on wrongful convictions based on wrongdoing by prosecutors and police, an interesting tangential point surfaced multiple times. It was the reminder by several lawyers that wrongful convictions are all cases that went to trial, but that there are many other defendants, in numbers impossible to determine, who took plea deals out of fear rather than face a jury.
A Supreme Court opinion published earlier this year by Justice Anthony Kennedy, points out "the reality that criminal justice today is for the most part a system of pleas, not a system of trials. Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas."
His opinion was quoted in yesterday's New York Times editorial noting that plea deals often wipe the appeals process out of the equation. With that, if a person agrees to a guilty plea based on a lawyer's bad advice or a prosecutor's purposeful or inadvertent withholding of evidence, that defendant has significantly diminished options for legal recourse. Specific waivers included in many plea bargains wipe out the ability to appeal.
Less than 2 percent of criminal cases in Texas went to trial last year, according to the Texas Office of Court Administration, sourced by Grits For Breakfast, which points out that among the overwhelming majority of cases settled with plea bargains, there is wide discrepancy from county to county as to what evidence is accessible by the defense while making their decision.
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"The process is closer to coercion," the Times editorial argues, adding that prosecutors charge defendants with a more serious offense, bargaining them down to something more akin to the actual crime. It's a barter system in which prosecutors often have the upper hand in resources and power. Most defendants take the best deal they can get, even if they feel they've been ripped off.
All of this is why it's interesting that a Colorado judge rejected a plea bargain in his federal district court partly because the defendant in a child pornography case was about to sign away his right to appeal. "The prosecution of Defendant Timothy John Vanderwerff has been characteristic of modern criminal justice," Judge John Kane wrote in the first line of his order rejecting the plea. He later continued, "The glut of plea bargaining and the pandemic waiver of these rights [presenting evidence, calling witnesses, etc.] have rendered trial by jury an inconvenient artifact." Kane insisted the case go to trial so the higher court could ensure the integrity of the conviction.
A nationwide study of federal cases revealed that agreements included waivers in two-thirds of cases. "Without an appeals court's policing," the Times editorial concludes, "Our system of pleas then looks more like a system of railroading."