Plea Deals: Why Innocent People Give Up and Go to Prison

Episode Notes

Transcript

Michael Semanchik:

Innocent people don’t plead guilty, right? Because that would be crazy if you didn’t do it. Why plead guilty? Innocent people are protected by law. They have rights. What are they worried about? The criminal justice system will eventually bring the truth out. We have science, we have evidence, we have forensic experts. If you did nothing wrong, why would you plead guilty? Especially if the punishment is severe. Guilty, plea guilty person sounds pretty cut and dry, but in reality it’s not. And that’s what we’re talking about in this episode. I’m Michael Semantic, executive director at the Innocence Center, and this is plea deals

Singer & Exoneree William Michael Dillon:

Spent most of my life in prison chasing, chasing our dream, chasing a dream. Want somebody please want somebody, please let me free.

Michael Semanchik:

For many who work on innocence cases, the stories of innocent people pleading guilty is their origin story. The whole idea of an innocent person getting up in front of a court and falsely admitting to something they didn’t do stands in stark contrast to what we believe the criminal justice system to be. It stands in stark contrast of our oaths as lawyers. It stands in stark contrast to our value systems. For an innocent person to believe it is better to be punished for something they didn’t do, rather than engage in the truth seeking process of a trial tells us something serious. Broke down. My friend, mentor and founder of the California Innocence Project, Justin Brooks had this calling while he was still early in his career as a law professor in Michigan. He read about an incredible story of a young woman who took a plea deal for murder that landed her on death row perplexed. He asked himself, who pleads out for the death penalty and why? What’s the point of a deal like that? So he began looking into it. Eventually he decided to travel out to Chicago to meet the woman who took this plea deal, Marilyn ero. He didn’t know it then, but she was innocent. And from that visit, a movement was about to launch. That movement would change many lives including my own.

Justin Brooks:

So 25 years ago it is now. I was teaching as a law professor in Michigan and I read about this young woman on death row in Chicago, and this article said she was sentenced to death on a plea bargain. She had been arrested at 21 years old, charged with a double homicide and then it never went to trial. And I’m thinking, how this be right that she got the death penalty on a plea bargain. So I set up a meeting with her on death row in Illinois. I drove down to meet with her and she told me that’s exactly what had happened. And I heard a story that we hear every day at the California Innocence Project, which was I got assigned a public defender. I didn’t think that was a real lawyer, even though public defenders are outstanding by and large. And I always say public defenders have training supervisors experience and most important in our work investigators.

So she fired this really great public defender and hired a guy who had a little office in the neighborhood, gave him a $10,000 retainer and he did no investigation, had never handled a death penalty case before, didn’t even have a meeting with the prosecutor and just pled her straight up to double homicide. And then she told me the most miraculous thing, which was I’m innocent. So I said, you’re innocent, you’re scheduled to be executed. And you never had a trial? No. So I went back to the law school where I was teaching. I had a big classroom full of first year criminal law students. I told ’em that exact same story and said, who wants to help me work on this case? That night around my kitchen table, the Innocence Project was born for me. We started going through the police reports, reading all the transcripts that we had, which were almost nothing, and started investigating the case.

And the first weekend we worked on it, I packed them all up in my Jeep, we drove to Chicago, we went to the park where this shooting happened, and we realized right away that the only eyewitness was lying because when we stood where she claimed to see the shooting occur, there was no way to even see the crime scene. It was 400 feet away. It had happened at midnight. There was no lighting, and she had completely fabricated her evidence. And then later on we found out she was the girlfriend of one of the victims, and that was her motivation. Still to this day, don’t know if the police came to her to get her to lie or she went to the police to lie, but the whole case was just a total fabrication. But regardless, it took 25 more years to get her out of prison.

Finally, she was released last year. I was fortunate enough to get her death sentence reversed 25 years ago due to his incompetence in the sentencing hearing. But the court would never allow the guilty plea to be withdrawn. And I went all the way up to the US Supreme Court where they denied my petition for sir. And finally the Illinois governor after multiple petitions released her. So I started working on the case when I was 29 years old. I finished working on the case. I was 55. It was quite a journey. And why it’s an important story. Well, it’s obviously an important story in my own personal life, but it just shows how difficult plea bargains are to undo even if you have a totally incompetent lawyer, even if you got horrible advice, even if there was no investigation in your case, once you stand up in a Courtroom and stay in front of a judge, I accept a plea of guilty. Getting that undone is incredibly difficult,

Michael Semanchik:

Like false confessions, guilty pleas from innocent people effectively say they committed a crime when in fact they did not. But the question is, why on earth would an innocent person do this? Unfortunately, this is common in the criminal justice system, and so it’s a focal point of our work at the Innocence Center. And as you just heard from Justin, these are some of our most difficult cases. It’s worth mentioning here that we only represent people who we know to be innocent. That’s our starting point and that all the hard work to unravel a wrongful conviction begins. But back to the why. In our experience with innocence cases, false, guilty pleas come from a place of fear, ignorance, or lack of capacity. Some defendants succumb to a scary and zealous prosecutor while others are victims of poor legal representation and don’t know their options. And yet other cases the defendant never had a chance because they lacked the mental faculties to defend themselves.

And a court failed to recognize it before it was too late. But before we get into all that, we should talk about why we have plea deals in the first place. Plea deals by themselves are not a bad or immoral thing. In fact, they’re an essential part of our criminal justice system. Without them, our overloaded courts would grind to a halt. But like so many elements in the criminal justice system, externalities and intention make them what they are, either a good thing or a bad thing. I talked with former California prosecutor Wayne Little about this. He was a deputy district attorney in Los Angeles County during the 1990s in terms of representing clients in criminal cases. He would’ve been on the opposite side of the fence from us at the Innocence Center. He has some insights about the use of plea deals and their value to all parties involved.

Wayne Little:

My name is Wayne Little. I am a former prosecutor, deputy DA from Los Angeles County. Was there in the nineties. Prior to that actually, I worked for my father’s company, west Coast detectives and did a lot of investigative work. I enjoyed that and I think in some ways that inclined me to join the DA’s office.

Michael Semanchik:

So what experience did you have at the district attorney’s office?

Wayne Little:

So in Los Angeles, it’s obviously a large county large office. Got to work downtown for a bit, was over in the San Fernando Valley in the offices there. And then I was out in Lancaster. Lancaster was an interesting experience. That’s probably the furthest out office of the different branches in the DA’s office. And I also had an amazing boss, Steve Cooley, and found that we were able to kind of take in cases and try cases that normally would go to special units or would be relegated to a different, and so there was a lot of different experience that I was able to have was also just fortunate to be in offices where people were looking for kind of eager beavers and people to kind of take on work. And so I had a chance to, I think I ended up with about 65 jury trials and got to do a lot of different kinds of cases.

Michael Semanchik:

Nice. Now you mentioned that you worked for your dad’s investigative bureau for a bit. Is that a common experience for Deputy das to have an investigative background before getting to the DA’s

Wayne Little:

Office? No, not at all. Not at all. I think it really did help me because whether your prosecutor or any kind of attorney, it’s important to try to understand the other side. And one thing that I would always try to, in fact, I would do training for the sheriff’s department out in Lancaster area, and I did classes in the valley too. But one thing I would always talk about was not having a jaundice eye, making sure that when you came to me with facts I wasn’t going to be blindsided because there was a whole different view of those facts from the other side. That’s the worst thing you can do. Don’t tell me something you think I want to hear. Tell me what the facts are and then that allows me to figure out how to navigate in that process.

Michael Semanchik:

Did you end up investigating a lot of your own cases just because you had that background?

Wayne Little:

Certainly early on, but I’ll tell you too, the DA’s office had some great investigators and so a lot of that stuff they would handle pretty well. But the first murder trial that I had a chance to work on, I didn’t have really a seasoned homicide investigator on it. So I was out talking to guys named Snake at 10 o’clock at night. It was a gang case and trying to figure out what the heck happened. And I’m a puzzle guy anyways. I like to figure things out. And for me, the job wasn’t about just convicting somebody or pushing some papers across the desk and saying it’s done. It was really trying to do the right thing. And if I felt like I needed to go out and talk to somebody or do something, I was going to do that and I enjoyed it.

Michael Semanchik:

At the Innocence Center, we fight against bad plea deals offered to innocent people all the time. At some point our client decided that a legal fight was not in their best interest. Perhaps they felt hopeless and were trying to spend as few years behind bars as possible. Maybe they didn’t understand the consequences and believe the plea deal would send them home. In the worst scenario, the plea deal was offered when an innocent person was the most vulnerable. When a defendant gets desperate, the unthinkable suddenly becomes the only option. Obviously we hate it when the plea deal system breaks down against an innocent person, but without plea deals, our criminal justice system will not function. And that means bad people would remain on the loose. It’s a real catch 22, but perhaps the best way to fight a bad plea deal is to be aware of them. Here’s more from Wayne.

Wayne Little:

Well, I sometimes hear people complaining about plea deals, but the reality is if we didn’t use plea deals, we wouldn’t be able to have any real kind of justice system that would be effective in any manner. Plea deals allow for us to out what a appropriate sentence or resolution should be in a time efficient manner to put on a trial to take the citizens in the jury pool to the resources. It involves the time. I mean, if we didn’t have the ability to shortcut that, it would be unwieldy.

Michael Semanchik:

How does that process come about? How does a plea deal come together? And then how does somebody that’s being charged with a crime, how do they go about accepting it?

Wayne Little:

So a lot of plea deals are done on cases that are almost cookie cutter. So if you look at DUIs or domestic violence cases, the cases that have a consistent mark that are considered important to the public good, those are cases that pretty much when they come into a DA’s office, we’re going to have a point of view on that and a way to organize our thoughts on that. And what I mean by that is, is that there’s probably been some policy directive or some sort of parameters that have been said on how these cases are to be handled. And so in the case of A DUI, depending upon where that reading is at, and there’s obviously other evidence as well, but let’s say you’re at a 0.08, that’s a different kind of case. And if you’re at a 0.16, right?

Michael Semanchik:

What Wayne is talking about here is blood alcohol content levels and DUIs, unless you are a commercial driver on A DUI of probation driving a passenger for hire or under the age of 21, your legal limit for blood alcohol while driving is 0.08% in the state of California, if you had a blood alcohol reading of 0.16, you would be twice the legal limit allowed a much more egregious violation from a safety and prosecution point of view.

Wayne Little:

So a 0.08, someone could come to me and say, Hey, listen, they’re right on the border here, let me give you some other facts that indicate that there wasn’t as much of a danger to the community that maybe your readings are slightly off or he ate this when he could have impacted something. And so you start to evaluate those factors. And so in your office that you’ve got the kind of the guidelines to say, okay, well look, I’ll offer a wet reckless, which is a lesser charge, it still has some impact obviously, but it allows you to say, you know what, instead of tying up the resources and taking this case to jury, bringing in the experts, firing this out over a few facts and possibly losing the case, this is the right resolution.

Michael Semanchik:

So is the standard term in a plea bargain generally better than the result you might get if you went through a whole trial? What’s the advantage to a defendant taking it

Wayne Little:

Then? Yeah, I know. I can’t think of any case that I was part of where the ultimate sentence was better than the offer. And for that to have happened means that something happened at trial, which while it was enough to produce guilt, changed the tenor of the trial. So that’s not going to happen often because you’d have to wonder what the defense was doing if they didn’t really present that early on. And listen, you’re dealing with a prosecutor that’s being unreasonable. You go above that prosecutor’s head, you try to get to the head deputy or you try to get someone else up the chain if you have compelling evidence. But the idea of making it work like any bargain is we’re going to give you something that you’re not going to get later on. So you got this little window to take it or not.

Michael Semanchik:

So can you give us a list of legitimate reasons that a person might want to plead out to a crime and also a list of bad reasons somebody might not want to plead out to a crime?

Wayne Little:

Well, and again, I was on the prosecutorial side, so I’m not as experienced from handling that on the defense side, but I would say this, that strategically, if you have an opportunity to plead out to a misdemeanor or to a charge, which is a felony, but you can get a misdemeanor charge out of it, there’s great value in that, right? There’s also cases where you’ve already served the time and any penalty that you’re going to get or the penalty that’s agreed to, you’ve already served in terms of incarceration. So that would be something to consider. There are times where the toil, the cost, the emotional cost is going to be such that you just say, listen, I’m going to call it in. This deal is worth not having to go through more of this. So I think that again, it’s just a cost benefit analysis.

It’s kind of negotiating a deal. You try to get your best out of it and you decide if you can live with that deal. Going back to your other thing, if you haven’t done it and you really believe you’re innocent, under what scenario do you plea? And I think that’s the most difficult thing because not only is it a matter of how do I figure out what my penalty will be at trial, what my likelihood of being convicted is, and you factor that in and then you say, okay, I guess it’s like poker, right? You’re trying to figure out if you’ve got a full house, what’s the likelihood that that person has a royal flush? And so you kind of counting the cards, you’re going over that, but the personal nature of it, the fact that you’ve told people you haven’t done it, the fact that you know haven’t done it, the fact that by saying this, people may think otherwise that’s a very tough thing to carry.

But again, if you’ve got, for instance, you’ve got kids that there’s a chance that you may not see them grow up and there’s a plea that you can do that, I get that entirely. But I would also want to try to plea in a way that would allow me that let’s say DNA evidence came up or some sort of evidence came up at a later time, or you could possibly withdraw the plea, but a plea agreement. There’s the strategic and the negotiation part of it, but then there’s a personal part of it of what it’s going to do to you personally, to your relationships and to the people that you’re involved with. And that would impact how we would make an offer or make a plea. So those are the kinds of things that are involved. Again, I haven’t been on the other side, I haven’t had to sit down with too many people to talk about that.

Michael Semanchik:

As we’ve heard so far, plea deals are put together to keep the criminal justice system going, at least on paper. In an ideal situation, the prosecution will typically find a case that is borderline. Maybe they believe the defendant is guilty, but they know it’s going to be a very difficult case in order to save precious resources, a compromise is created, the prosecution offers a lesser charge or a lesser sentence. The defendant looks at their situation and with the advice of their attorney either takes the deal or takes their case to trial in a fair plea deal. Both sides are giving something up, but they’re also getting something back. The prosecution loses an opportunity to enforce the law to its fullest, but it gets to save money and resources for a more winnable case. The defendant loses the ability to fight their case, but they are minimizing the potential loss from a bad verdict, and that could mean years or decades of their life saved from prison. Here’s how all of that gets put together.

Wayne Little:

So what I would do particularly as a younger DA, is I would look at a case, I would evaluate it, I would sit down and talk to my head deputy or the person that was my supervising deputy, and we’d go over the facts and we’d go over what makes sense. So other than your kind of cookie cutter offenses that happen all the time, there is a place for that negotiation to occur and that a negotiation is important to how the DA views the case and how they’re going to put together their offer.

Michael Semanchik:

So assuming you put together an offer, it’s presented to a defense attorney and the defense attorney provides it to the defendant and they agree that this is a good deal for them, what happens next?

Wayne Little:

Well, a lot of times the defense attorney will come and they’ll suggest what the police should be. And so that kind of gives you a mark in any good negotiation when you understand where someone else is at that helps you navigate where you’re coming from. But once I tell ’em to, okay, look, here’s what the deal is, it’s up to them to talk to their client and to determine if their client feels it’s in their best interest. And that’s not always an easy thing. There are a lot of attorneys that, a very good attorneys that have gone back to their clients with a very good offer and the clients have just refused to do it, and they come back and they say, listen, this is a great offer. I tried to make it happen. It didn’t happen.

Michael Semanchik:

And so then what happens then

Wayne Little:

Goes to trial. In some cases though, the person will eventually see the light. That’s not an uncommon experience. First there’s a lot of raho, no, I’m innocent. I would never do this. I can’t do this, whatever. But then has maybe family members talked to them or as they think about the consequences, then there’s a change of heart down the road.

Michael Semanchik:

And so then everybody agrees, let’s say, what’s the next step? Where do you go from there that the prosecution in the defense or on the same page and you just go to court and tell the judge this is what’s going to happen or what.

Wayne Little:

Yeah. So at that point, you go to the judge and you tell ’em you got a deal.

Michael Semanchik:

Does the judge have to accept

Wayne Little:

It? It doesn’t have to accept it. In most cases though, the judge is going to accept it. In cases that are higher profile or involve different kinds of maybe elements that may be of public interest, the judge is certainly going to inquire and want to know some things.

Michael Semanchik:

This part is worth highlighting. Just because both the prosecution and the defense are happy with a plea deal does not mean the court will approve it. If a judge is not convinced it’s the right thing to do, they will reject the plea deal. That’s especially true if they don’t think the defendant fully understands what’s being offered versus what’s being lost, the judge is very likely to step in if they think the defendant is being taken advantage of. Alternatively, the judge might also reject the deal because they think the defendant is getting off too easy. It can be a delicate balance that depends on a variety of factors left to the sole discretion of the judge.

Wayne Little:

But for the most part, prosecutors and defense attorneys have the ability to determine what is the right call there. And when that’s done, it’s done in open court. The prosecutor, your job then, which is very important, is to make sure that the person is knowingly and is fully informed of the impact. And there are times where those plea agreements have been withdrawn, that the defendant has been allowed to withdraw it because there was something that they weren’t informed of at the time. So what happens there is, in fact, we used to have a script, and I actually enjoyed it because it was almost like performance based. So it would probably be in total about maybe two pages, two and a half pages long. But you would have to just say to them, Mr. Jenkins, you understand by pleading to this case that you’re pleading to boom, boom, boom, boom. Do you understand? Yes, I do. Do you understand that by pleading to this case that you will boom, boom, boom, and you’d have to run through these things? And I know that for a few years there was a big problem on the immigration status issues. If they weren’t informed that that plea could impact their immigration status, they were able to then withdraw their plea and continue the case.

Michael Semanchik:

So what does a prosecutor look for in a plea deal? It’s a good question to think about because understanding the motivating factors can be very helpful when you’re negotiating for your freedom. Like everything else in the criminal justice system, there’s a lot that goes into it.

Wayne Little:

Well, they say that most deals are good if both sides have a little bit of a disappointment, I guess, in the outcome. But I don’t know. I think from my standpoint, a good plea deal was the idea that this person was going to pay for what they did in an appropriate manner, and that by doing what they were going to do, that you had a pretty good chance that there was not going to be a return to that behavior. So from a prosecutor standpoint, that’s really what you’re after. How can I make sure that the punishment fits the crime? The worst kind of plea deals, and I saw something on one of these cases the other day was, oh, well, yeah, I know of a case down in LA actually very recently where they had to plea because they had violations, discovery violations that the prosecutors did a really shoddy job of getting over exculpatory evidence and it was a mess.

Michael Semanchik:

Exculpatory evidence is evidence that favors the defendant and is material to proving their innocence versus guilt. The prosecution is required by the constitution to provide this to the defendant. Whether the defense asked for it or not, failure to do this can result in a new trial. What Wayne is talking about here is a serious violation by the prosecution, and as such, the court would need to react in a serious way to protect the defendant and the rule of law.

Wayne Little:

And the other attorney, the defense attorney, played it brilliantly and got a plea deal out of it that I know that the judge wasn’t happy with. And definitely the victims weren’t, but was kind of forced in that position because they didn’t do what they needed to do early on.

Michael Semanchik:

And so if that case were to have proceeded to trial, presumably the defense would’ve been able to keep out some stuff and make it a much more difficult road to getting a conviction. And so the prosecution’s kind of stuck offering something up in order to maintain a conviction or,

Wayne Little:

That’s right. Okay.

Michael Semanchik:

That’s right. So I would say that’s probably a bad reason for the prosecution to have to plead out, but they didn’t play by the rules. So that’s kind of the way that case

Wayne Little:

Fell. Okay. And from their standpoint, looking at the fact that it’s possible that the entire case could have been kicked, they got something,

Michael Semanchik:

Have you ever had a case where you thought a person might’ve taken a plea and they were innocent?

Wayne Little:

No. Did I believe that? I had people that believed that they were innocent and had a completely different point of view on it, but according to the law, they were not. Yeah, certainly for me, misdemeanors took a lot of effort to craft out a plea deal even though there wasn’t as much at stake. Sometimes people just do dumb things and kind of the mens rea that you’re taught in law school, right? The guilty mindset that you need to have, well, it wasn’t so strong, they just did a really stupid thing. And that stupid thing is now going to have ramifications and impact their life. And so the idea of thinking about punishment and protection of society, how do we balance that? And that’s probably is where maybe plea bargaining gets somewhat of a dirty name, is that you can take one person that commits basically the same sort of crime and you look at them in a different way than another person who commits the same crime, and yet you’re going to come down in a different fashion.

And that’s kind of where the three strikes law probably came into place too, saying that, listen, you’ve done so much havoc in your life that even if you take pizza from a kid, we’re going to come at you strong. As opposed to if you hadn’t done anything, you had no priors, you took pizza from a kid that technically, yeah, that may be some sort of a theft. That’s obviously a different case than somebody that has a bunch of P priors and they take a kid’s pizza. So I mean, that’s how that rationale goes. We can only look at what’s in front of us and make the best decision at that time that we can make. And listen, even juries get it wrong, even if it were to go to jury juries get ’em wrong too,

Michael Semanchik:

There’s more than 3000 wrongful convictions since 1989.

Wayne Little:

I knew you would know that number.

Michael Semanchik:

And the juries, the juries were part of most of those wrong decisions. So there’s a much smaller handful of people that have pleaded guilty and then later been exonerated. Do you know of any cases where maybe some colleagues that may have taken plea deals from people they thought might have been innocent or no, now?

Wayne Little:

No, I don’t. And I can’t imagine, other than someone talking about it in hindsight, when they’ve done something to try to correct the wrong, I can’t imagine someone kind of wanting to share that information mean it was certainly not with me because I would have some issues with that from a moral standpoint. And I guess it’s one thing to say if a defense attorney comes to you and says, Hey, listen, we’re willing to take a lesser and if you can give us a lid at county jail, whatever the deal is, and you look at the case, you say, Hey, that’s probably a pretty fair offer. And then you look maybe at the facts and you think, wow, I think maybe there might’ve been some jurisdictional issues, or Boy that doesn’t make sense. I guess you could have that scenario. And if you’re just going to do your job, you go ahead. Well, look, they know what they’re doing. Let’s go ahead and move this case along. Or you may go ahead and look at that and say, Hey, you may talk to the defense. One thing that’s interesting about criminal bar versus the civil bar is that I found that the relationship with attorneys was much more collegial. And

Michael Semanchik:

For which side?

Wayne Little:

For the criminal side, the criminal.

Michael Semanchik:

Just a quick side note about that last point. When attorneys say criminal bar versus civil bar, they were referring to lawyers who practice in those areas. Attorneys who handle criminal cases like murder and robbery are said to be part of the criminal bar. Whereas attorneys who handle civil cases like contract disputes are said to be part of the civil bar.

Wayne Little:

There were criminal attorneys that would come to me and say, Wayne, you need to look at this case. And I would think, yeah, come on, you tell me about every case. But then there were other attorneys that would say the same thing, and I would say, okay, I will because you trusted them and there was that kind of relationship. And I think too, unlike the civil side, in the criminal side, one side has a ton of power, and so that incentivizes the defense bar to try to earn some credibility and to figure out how to be strategic in the relationship. By the same token, I think that if a case comes to me and I see an attorney that I know is just going to kind of roll over and get his client to plead anything, I see that case differently than if I have an attorney on there who I know is going to fight like hell.

Michael Semanchik:

That’s interesting. So the choice of counsel for the defense matters

Wayne Little:

Certainly does, and I think in two ways. One, you definitely want an attorney that in the mindset of the prosecutor is willing to fight, and you want an attorney that is willing to fight not just in trial, but throughout the process to go to the head deputy, to go to somebody, to be able to marshal the resources that the investigator, whatever needs to happen. And listen, there’s some good public defenders that I know when that public defender comes to me that they mean business. This isn’t their typical kind of cry, or they’re just pushing papers across the desk and they just have too much on their plate. Yeah, if you’re in trouble, it really behooves you to find an attorney that has a reputation for fighting and is willing to put in the resources to fight. And that’s I think probably the most unfair part of our system is that the way you do that is generally it’s through being able to pay for the attorney and for those that can’t afford that kind of representation, it really puts them at a disadvantage.

Michael Semanchik:

Did you see in your work that typically the private lawyers were going to fight harder or were the public defenders going to fight harder or was it just ran the gamut?

Wayne Little:

Like I said, there were examples on both sides. There was, I remember a public defender investigator that I thought very highly of, and I knew that when that person came with evidence or there was evidence on that person’s cases that that had some meaning for me and some real value. But sometimes it seemed to me that the public defenders had more of a macro view of how bad the system was, and they were just going to complain about everything. And there were other public defenders that were just really good at lawyering and being able to defend a case. And then on the other side too, one thing I remember early on as a young da, I had a bunch of trials even before I passed theBar under the supervisory rule, but I remember these attorneys that I’d see on TV that were coming in and I was dealing with them and I was dueling with ’em. And what I realized was when they left the courthouse, they had to go back to their office, return a bunch of calls, figure out how they were going to make payroll, do all the stuff that they had to do from a business standpoint and handle all their other things. And I was just going to be the office working on that case, and that really put me at an advantage. So I learned that just because they seem to have a name doesn’t mean that they really have the game to back it.

Michael Semanchik:

These last few points are very important. Picking an attorney to defend you in a criminal matter is not a simple task. Some people think that attorneys in private practice are the best choice for legal defense, whereas others think public defenders are better. The truth is that there are pros and cons. Attorneys in private practice have more available time, but they can be expensive, especially if the matter is going to involve an investigation testing and experts. On the other hand, public defenders have excruciatingly busy schedules, but they do have taxpayer funded resources to support them. You should carefully research your options and consider your situation fully. How much money do you have? Who has more experience? Who has a better reputation? Is that reputation deserved? These are not easy questions to answer, but they’re certainly worth the effort. A good attorney can be the difference between being free or being in prison for the rest of your life. So far, we’ve talked about why plea deals exist and how they come together. We also talked about the reasons an innocent person might make a deal. It’s a terrifying prospect, but sadly it happens. Juries can be unpredictable, especially when the case is a difficult one. And for those who find themselves in this unfortunate situation, Wayne has some thoughts for consideration.

Wayne Little:

Yeah, that’s the worst of all worlds, knowing that your possibly best scenario is to admit to something that you haven’t done. I think that you just have to be very aware of all the ramifications that that plea is going to have. And sometimes what may seem like a short-term benefit may have long lasting consequences. To me, it would seem like what I’d want to do is make sure that I had a support team, my family, or people that cared about me, that I was moving in a concerted way towards something because to plea for something you didn’t do, number one, there’s just a dissonance there and there’s something there that that’s going to leave something in you and it’s going to be a mark on you about how the rest of the world sees you and how you interact. So you have that issue, but the reality is you don’t know what’s going to happen in a jury trial.

You just don’t know. And generally you’re going up against somebody better resourced, and so you have that going against you too. So if you have to decide what level of risk it is to not have that personal loss, I guess, of saying you did something that you didn’t do, the key from a defense standpoint of having a good plea is making sure that you’re prepared to negotiate. And it’s like any negotiation. So the more that I can put on my side to say, here’s why I deserve this, the better off you’re going to be. And so if that means getting statements from people that have known you, if it means making sure that there’s a thorough investigation, making sure witnesses that the police may have missed or interviewed, building the strength of your case is the best thing you can do to position yourself for a good plea bargain.

It’s a really tough decision, and I think attorneys are going to tend to encourage the plea because the last thing you want to do is to get to the end of the trial that you really thought you had a chance to win, and the jury did something on you. And you have to look in the eye of that client and essentially say, I’m sorry, depending upon how serious the crime is, their life is really being impacted. So it’s tough. So I think a lot of attorneys tend to push more and make sure that the defendant is very aware of what the potential risk is, or at least the ultimate penalty would be. And then you have to determine, are you willing to take that risk in the situation?

Michael Semanchik:

Making a good plea deal is one thing. It’s quite another. When the sentence is finally given, it’s just one more point for uncertainty. Will the defendant get the minimum or the maximum penalty? What if the victim’s family who falsely believes you did it, decides to speak their mind at a victim impact statement? It’s really important to know what the judge is thinking, and if possible, set something up in advance. But when the prosecution is not willing to deal or like we discussed in Marilyn’s story, the attorney doesn’t work all the angles on an open plea, you are leaving yourself at the mercy of the court.

Wayne Little:

Man, that’s really, really risky. I’d want to go into that game knowing what my cards are. And I mean, you told a story earlier about a victim’s impact statement that ended up completely changing a judge with a great reputation and very seasoned, but that took that into a whole nother sphere of penalty. Listen, if you’ve got a ton of support behind you from the community, from things that you prepare to say who you are and why you would deserve the lower end of that scale, maybe you take a look at that risk, and a lot of times that’s going to already be discussed to a certain degree in chambers.

Michael Semanchik:

Are there specific things that an innocent person should be asking their lawyer as they’re going through this plea process?

Wayne Little:

I think the most important thing to ask is to ask of others what the reputation of that attorney is,

Michael Semanchik:

Which hopefully you knew before you’ve hired them in the first place, but

Wayne Little:

Hopefully you did, because there are a lot of times where attorneys at the initial phase are going to talk to you and give you time and take your money, and then trying to get a return call, trying to get some input from them. And listen, they’re busy. They’re in trial. I get it. I don’t think it’s always they’re being jerks, but the reality is you want to make sure that you’re being represented. So I think just making sure that you’re in communication on every date, every appearance that needs to be made. But other than that, there’s a lot of trust in your attorney and his or her ability to go forward. But like I said, I mean really your work on the attorney has got to be done before you pay him, making sure that they’re the kind of person that is going to be respected by the other side, and there’s going to respect you as well.

Michael Semanchik:

Another important concept that Wayne and I talked about was the prosecution’s tendency to overcharge at the beginning of a criminal case. When an innocent person first sees that initial list of possible crimes, it can be a terrifying moment as you’re about to hear. There are regulatory reasons for doing this that have little or nothing to do with actual evidence. That’s why it’s critically important to not panic and let your attorney work through the process. Eventually, the prosecution is going to need to match real evidence to an actual charge. So the big takeaway here is to talk with your lawyer and let them advise you on the full picture before you get scared into a deal you might regret later.

Wayne Little:

Well, that happens probably for two reasons. One is because there is this idea of making sure that you don’t miss anything and you give the prosecution as much ability to navigate. On the other side of it too is that you want to make sure that at the time of filing that you’ve kind of covered the charges that are going to be relevant. So you got to understand most filing deputies, they’re filing lots of cases. It’s not done by just any deputy. And so they have kind of a way of doing it, and they see it almost as it’s paperwork to them. They don’t interview the witnesses. They have a detective in front of them possibly or law enforcement telling them kind of what’s going on, what the case is, and they go over problems and issues. But that’s stuff that’s pretty easily dealt with a seasoned attorney. Each of those charges, if it’s a felony, obviously has to get passed a preliminary hearing where there has to be some sort of evidence to support it.

Michael Semanchik:

Up to this point, we’ve discussed why plea deals exist, how they come together, and the reasons innocent people agree to them. We also talked about risks associated with open pleas to the judge and the origins of overcharging. To wrap things up, Justin Brooks shares his thoughts about the prevailing guilt of those in prison, the war on drugs and sentence enhancements. All of these aspects shape the plea deal making process in profound ways.

Justin Brooks:

I’m not some crazy Pollyannish person who thinks like, oh, everybody in prison is innocent. I think there’s two extreme positions. One is everyone in prison is innocent. The other is everyone in prison is guilty. Those are the extremists. What we believe is most people in prison are guilty, and now we got to figure out who are the innocent ones among that. Well, what that means is that when you’re a criminal defense attorney, most of the people that you represent and talk to on a daily basis are guilty. And that creates a bias in your head of like, am I going to go to the wall and spend every last penny here trying to find some way of innocence, or am I going to take the best deal I can? And that’s at the root of plea bargaining. So on the defense side, it’s this person’s probably guilty that’s probably going to be proven in a trial, so let’s make the best deal we can before trial.

From the prosecution side, it’s our system is overburdened with cases. We don’t have the resources to try every case. Let’s make a deal here that will end up, we’re meeting somewhere on this, usually not in the middle, let’s say somewhere between the two extreme positions. And what’s happened in the United States in the last 40 years is the sentences have gotten longer and longer and longer. So the prosecution has more and more tools to beat people into plea bargains. It’s a casino, you’re like door number one, door number two, but you’re risking your entire life. In that process. There’s a lot of evil involved in the plea bargaining system, and it’s become sort of a necessary evil. When we’ve overwhelmed our system with cases, mostly due to the war on drugs, which has really piled up the cases,

Michael Semanchik:

Our criminal courts are completely overwhelmed. The backlog of cases was especially pronounced during the pandemic. In the last 40 years, punishments for crime have gotten a lot more severe. The combination of increased enforcement and longer sentences have put tremendous strain on the system, so much so that it’s ensnaring the innocent with high stakes plea bargain gambling. The downside risks of prosecution have become so bad that it’s scaring people right into the prison system.

Justin Brooks:

I’m just finishing writing a book called You Might Go To Prison that talks about that at length. And I think fundamentally, and this was a shocking statistic that I had to research to believe when I was writing this book, and that is before the 1980s, the longest sentence you could get in the United States for a drug crime was a year. And when you look at the last 40 years, the way we’ve grown up in this system, that’s unbelievable. I mean, now we’re at a point where it’s common to go to prison for the rest of your life. For a drug charge, you can technically get the death penalty on drug charges. So we have to start undoing all of that because what we’ve done with these massive sentences that are way out of line with the rest of the world, I mean, I’m often telling people in other countries that life means life in the United States because in the rest of the world, life means 20 or 25 years, no one puts people away for the rest of their lives.

No other western country uses a death penalty. So we’ve gotten to this point that we’re so extreme on sentences that even though we’re the wealthiest country in the world, we have the largest prison population and we incarcerate the highest percentage of our citizenry than any other country, which is crazy when you look at the connection between crime and economics that the wealthiest country would incarcerate the highest percentage of its citizens. But that’s where we’re at. We’ve created this trillion dollar industry of corrections. We’ve created a situation where politicians use police unions, correctional officers, unions to their advantage. And then there’s a benefit to passing laws that are tougher on crime, that increase sentences because the politicians benefit, the corrections, industry benefits, police departments benefit. And at the end of the day, who suffers is those of us as taxpayers who pay for all this, and the people who get caught up in it and end up in the correction system and their families.

So we’re starting to see some real positive stuff in that area that I’m feeling more hopeful. I mean, for example, just in the last couple of years, California is no longer the largest prison system in the United States. It’s now Texas. And that’s because California started sentence reform. We started backing off on three strikes cases where we were allowing that third strike, even if it was a misdemeanor, some minor thing, people were going to prison for the rest of their lives. We start seeing drug reform. We’ve seen legalization of marijuana. We’re seeing things where we’re pulling back on sentencing. And that’s step one, because the system doesn’t have enough resources to reform itself. So we have to create those resources. But if we can decrease the number of people in prison and the number of cases that are going into the Courtroom, then we can start seeing some more sensible, better investigations going on.

We can see more sensible plea bargaining going on, and we’ll start to see a decrease in the number of innocent people who end up getting caught up in the system, or guilty people whose lives we should not throw away over a drug charge. But it’s a big lift. We’ve done a lot of damage in the past 40 years, and it’s going to take citizens to vote, thinking about what kind of place do I want to live in? What kind of country do I want to live in? And I think it was a real wake up call in California a few years ago when they cut a billion dollars from the uc system from our university system because people started to realize, look, we don’t have unlimited money. So you can’t just keep throwing it at corrections and think there’s not any cost to that. And the cost was now when your kid goes to college, it’s going to be a lot more expensive and tuition went up.

And I think if people start realizing how it hits them financially, we’ll see those reforms. That’s a sad statement on us as human beings, but people do care more about stuff that impacts them directly, and our prison system is designed for you not to even ever see it. If you and I weren’t criminal defense attorneys, it’s unlikely we ever would’ve set foot in a prison. That’s the way it’s set up is so people’s out of sight, out of mind, and a lot of people are benefiting from it. So we’ve got to open up those doors and expose it for what it is, and hopefully this conversation today is part of that.

Michael Semanchik:

Thank you for listening. We hope you enjoyed this episode produced and written by Lawrence Colletti Audio Engineering by Adam Lockwood. Special contribution of music and sound elements by real life exoneree William Michael Dillon. You can find his catalog of [email protected]. That’s framed, D-I-L-L-O n.com. Thank you to Clio for their support.

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