Dark Pleas: Trading Innocence for Freedom in Post Conviction Deals

Episode Notes

Transcript

Michael Semanchik:

Imagine you’re in prison for a crime you didn’t commit. Despite spending all of your money on lawyers, experts and investigators, a jury still found you guilty. You continue to appeal your case only to be let down over and over again. No one believes you, even members of your family. Your spouse has left and moved on. None of your friends come to visit. Your children are grown and have become strangers. It’s been over 20 years since you were convicted. You’re beginning to forget what it’s like being free. You’re surrounded by concrete walls, appalling smells and violent offenders 24 hours a day even when they let you outside for mandatory recreation. It’s still behind a fence with barbed wire. Everything you do is dictated by the guards or fellow prisoners. The world is passing you by as you languish with the forgotten, and then suddenly something happens.

Your attorney arrives and they need to talk with you right away. After many years of grueling work on your case, the prosecution is ready to make an offer. They’re going to release you from prison, but there’s a catch. You have to plead guilty to a crime you didn’t commit for all these years. You told everyone that you’re innocent, you swore it to your family, you swore it to the court. Winning back. The respect of your children means everything to you, but this might be your only chance to get out. Making matters more difficult, the prosecution has told you that you either need to take this deal or else they will retry your case, and that means you’d be rolling the dice again with the courts. Your attorney believes you can win, but they are not the one behind bars. What would you do? I’m Michael Semantic, executive director of the Innocence Center, and you’re listening to Dark Pleas

Singer & Exoneree William Michael Dillon:

Spend most of my life in prison chasing a dream. Call justice, chasing a dream, chasing a dream. Want somebody please hear my peace. Want somebody please set me free.

Michael Semanchik:

A dark plea is a post-conviction plea deal offered by the prosecution to a defendant. It offers freedom in exchange for a guilty plea. Typically, the defendant has been in prison for many years when the offer is made and generally it happens while the defendant is fighting to have their case retried. The prosecution is fighting to prevent that from happening and putting up a big front. When the deal is presented, there is typically only a short time to accept it before matters escalate. The defendant wants freedom so badly but is fearful that they might lose in court and be stuck in prison. The prosecution holds all the cards and the pressure is intense. The plea deal might be their only chance. It’s easy to understand why anyone would want to get out of prison, but what’s not always clear are the consequences, consequences that could impact the rest of their lives. And that’s what we’re going to talk about with Justice Michael Donnelly from the Supreme Court of Ohio and Joanna Sanchez, director of the Wrongful Conviction Project at the office of the Ohio Public Defender. You might remember Joanna being mentioned in the previous episode called Angela’s story. If you have not heard that one yet, I recommend you listen to it first.

Justice Michael Donnelly:

My name is Michael Donley. I’m an associate justice on the Ohio Supreme Court where I’ve been since 2019. Prior to that, I was a trial court judge in Cuyahoga County, Cleveland, Ohio for 14 years.

Joanna Sanchez:

I’m Joanna Sanchez. I’m director of the Wrongful Conviction Project at the Ohio Public Defender’s Office.

Michael Semanchik:

I want to start just talking generally about plea deals. What percentage of criminal law matters are resolved by plea deals?

Justice Michael Donnelly:

So the stats out there is the vast majority of all criminal disputes are resolved through negotiated plea deals. Probably about 97% are the figures that I’ve seen, and that was true in my experience as a trial court judge.

Michael Semanchik:

Most people are shocked by that number, 97% after all, they see trials on TV every day and they most likely know someone who has served on jury duty. So how can it be that only about 3% of cases filed actually go to trial? Why are 97% ending with a plea deal? That’s how powerful the incentives are. Most defendants would rather take an offer rather than fight within the system. But what happens when an innocent person makes it into the mix? It appears that they are less likely to take a plea deal, and fundamentally that makes sense, but from the perspective of justice and morality, nobody who is innocent should be scared into taking a plea deal. Here’s how some of those numbers play out.

Joanna Sanchez:

So speaking just for the Wrongful Conviction project and not the Public Defender’s office as a whole, I’d say about a quarter of the cases are plea deals, which again, it’s not reflective of the system and the numbers of cases that actually resolved by plea, but what we found is that the people who applied us and maintain innocence, a higher percentage of those individuals did in fact go to trial.

Michael Semanchik:

That’s interesting. Why do you think that is? Why are the numbers different?

Joanna Sanchez:

It’s hard to say, and we certainly do get people who apply who have pled, and I don’t mean to imply at all that if you plead you’re not innocent. And there’s certainly individuals out there who plead guilty, who innocent, and there’s a whole host of reasons why that might be. There’s a good percentage of people though, who are innocent who choose to go to trial because they’re not willing to enter into that plea. And so I think that inflates those numbers on the backend when we’re looking at cases

Michael Semanchik:

During the course of this discussion, you’re going to hear terms like plea deal and dark plea. It is important to draw a distinction between them because they are treated differently in the criminal justice system. Both are deals between the prosecution and a defendant, but the biggest difference is that a standard plea deal happens before a trial. And in those cases, a judge will oversee the process to make sure the defendant is being treated fairly. Dark pleas by contrast happen after a trial and conviction. The defendant has usually been incarcerated for a while and the judge plays a much smaller role. There is usually a legal process in play seeking a retrial. The defendant is fighting to have their case looked at again. The prosecution is fighting against them and threatening to escalate the matter which could spell doom for the defendant’s chances. One side holds all the cards and is negotiating from a much stronger position, and that’s when the plea deal is offered. Freedom in exchange for an admission of guilt and all the repercussions from that deal could impact an innocent defendant for the rest of their life. This is why Justice Donnelly coined the term dark plea.

Justice Michael Donnelly:

I’ve been a student of the plea bargaining process ever since I became a judge. Way back in 2005, I started viewing how pleas are negotiated and approved by judges and began to question the process because in Ohio, at least in the state system, unlike the federal system, judges get to various extents involved in the plea bargaining process with the lawyers. The prosecutor and the defense counsel on the front end of the system will negotiate a plea that they believe is fair for both their clients. But that’s not the end of the road on the front end of the system. You have to go before a judge and request that judge approve that plea. And it’s a tremendous power that judges here in Ohio have in approving and disapproving pleas. And we have over 400 general division judges and each of them exercise that power in different manners, which often results in different outcomes. We could talk a whole podcast about how coercive the system has become on the front end of the pleas because prosecutors have a lot of leverage when it comes to inducing defendants to think about entering plea bargains as opposed to exercising their constitutional rights, Dakota to trial, not to mention what has become known as the trial penalty or the trial tax, the more severe penalty that you will receive if you choose to exercise your constitutional right. So there’s coercive on the front end, but what we’re talking today in this episode is something totally different.

Michael Semanchik:

What Donnelly is talking about here with the trial tax is both a stick and carrot deal. The stick is the tendency to stack charges to the fullest extent allowed under the law in order to pressure the defendant into making a deal. The carrot is the sooner you take a plea, the lower the penalty will be and the closer you get to trial, the worse the deals get all of it to incentivize the defendant to take responsibility early while relieving the prosecution’s workload. This is a fairly common practice before trial on the front end of the system. So what happens on the backend? Justice Donnelly walks us through that process using Angela Garcia’s case as an example.

Justice Michael Donnelly:

Okay, so the dark plea is a phrase that I came up with on my own. I started thinking about it right after I discovered the details of what happened to Angela and to describe what a dark plea is, you have to envision what the post-conviction system looks like. The post-conviction system, as I’ve often described, is a mere image of the front end. Someone has been convicted like Angela was. Her case went through the court of appeals, her conviction was affirmed, and so she was serving a sentence, but she always from day one maintained her innocence in the case. And fortunately down the road, after much time in prison, she was able to get counsel like Joanna, excellent counsel who looked into her case, looked at the record and determined that the scientific evidence that was used to convict her did not have any scientific basis whatsoever.

So in Ohio, when you find new evidence like that evidence that if true would completely undermine the theory of guilt that was used to convict the defendant, you’re entitled to move the court for a new trial. And so a big part of the problem, a big part of the culture in my opinion, I’ve discussed this with Joanna, is that prosecutors perceive innocence advocates like Joanna just the same as defense attorneys who perform a very valuable function on the front end of the system. Invaluable. We need them as part of the process of doing justice. But innocence advocates are not defending anything even though prosecutors tend to view them as defense counsel. And often during this litigation always refer to them as the defense. The defense, and it’s just not true. They are prosecuting innocence and they are trying to prove that the conviction lacks integrity and the prosecutor on the back end of the system becomes the defense lawyer in such a case because they’re trying to defend the integrity of the original conviction.

And this is where the system breaks down in my opinion, because in Ohio, if you have this kind of evidence and you put it to a motion for a new trial and it’s opposed by the state, the trial court judge does have to have a hearing to air out this evidence to see if it has merit or not. Because the system is so non-transparent and judges let these motions languish sometimes for years just sitting on their dockets ripe for ruling, they often get lost in the system and you need celebrity involvement, newspaper involvement, great attorneys like Joanna to get a second look at these cases. If the judge does set a hearing, however as what happened in Angela’s case, that is the moment where people face the danger of being offered a dark plea. And the best definition is a dark plea is offered by the government to someone who is no longer cloaked under the presumption of innocence. They are prisoner and they are offering the keys to freedom in exchange to plead to charges that have already been resolved. That’s why it’s completely different. It’s the most coercive form of plea and that’s why I gave it the name the dark plea.

Michael Semanchik:

This part about the presumption of innocence is particularly important because it highlights the decrease in constitutional protections prior to a conviction. Every defendant is presumed to be innocent. Along with that presumption comes constitutional rights like the right to a speedy trial and the Brady Doctrine, as we just heard in post-conviction, the defendant’s motions will languish unaddressed for years effectively and indefinitely delaying their fight for freedom prior to conviction. This would never be allowed to happen. As for Brady Rights, every defendant has the constitutional right for the prosecution to release any information they have that might support innocence. Failure to do this can result in a mistrial or possible reversal of a conviction, but the problem with wrongfully accused defendants is that once they are convicted, it is much less likely that they’ll hear about Brady evidence. Historically, prosecutors were only under an obligation to bring information forward if it made it clear that the defendant was innocent and we’re not talking about situations where there is a remote possibility of innocence, there had to be something substantial and credible. In a perfect world, we wouldn’t have to make these distinctions. Any evidence beneficial to the defense should always be brought forward. Generally speaking, it’s an uphill battle to get access to any evidence, and that is one of the many reasons why innocence work is so challenging and takes so long.

As we learned in earlier episodes, our criminal justice system needs plea deals, otherwise it would grind to a halt under the weight of so many trials. From the prosecution’s perspective, they get to save on precious resources and time in for giving up the ability to prosecute a case fully. From the defendant’s point of view, they give up their day in court in exchange for limiting the downside risk of punishment that might result from a full trial. But how does that apply to a case where the defendant has already been convicted and is now sitting in prison? What are the incentives for making a post-conviction deal? The so-called dark plea. Why would the prosecution do that?

Justice Michael Donnelly:

And the question that never gets asked, especially by the press, which is supposed to be the watchdog of our democracy, why would a prosecutor offer a plea to someone before they learned that they were facing a new trial? And my answer is because they know if it goes to hearing, they know they’re going to lose. So they use the most amount of leverage. I call it the legal equivalent of pointing a gun to someone’s head and extracting a confession and telling them that you’re going to kill them if they don’t confess to the crime. We don’t allow that on the front end of the system yet it happens all the time throughout this country on the back end of the system.

Michael Semanchik:

And that’s what Joanna believes happened to the Angela Garcia case. They were in the process of seeking a new trial, but before they could get there, the prosecution offered a deal and not a great one at that. Sure, Angela would be free, but she would be required to serve five more years in prison.

Joanna Sanchez:

So in Angela’s case, we had discovered new evidence of innocence and the form of that evidence was really the progression of fire in arson science in the years since Angela’s conviction. And so we’d worked with some experts who had looked at the case and realized that there was simply no scientific proof of arson. And in fact, there were indicators, strong indicators that this was an accidental fire. And so we had filed in Ohio, it’s kind of a two part process. You have to file a motion asking permission to file a motion for new trial. And then once that’s granted, which it was in this case file a motion for new trial. And at that point the court set a hearing on the motion for new trial, which was to take place in May, 2016. And the morning of that hearing, we were all prepared. We brought in our experts, they flew ’em in, had prepped all of our witnesses.

We were really ready to go that morning. We walked into court and the prosecutor started negotiating and indicated that they wanted to talk a deal with Angela. And so that’s what that day turned into is a conversation about what that deal might look like. And obviously lots of conversations with Angela about what choice she wanted to make. And as Justice Donley’s described, I mean it’s an impossible choice to make because we felt like we had a really strong case. We had very strong evidence of her innocence. But it’s a gamble and it’s not a gamble with my life. It’s a gamble with her life. And in Angela’s case, she had been tried three times before they got a conviction. So the of going through that experience is certainly in play as we’re having these conversations. And so we spent several hours doing that and by the end of the day, Angela had made that decision to go ahead and take that plea.

Michael Semanchik:

It should be noted that not all prosecutors who make this type of offer are fearful of losing at a new trial. Some truly believe in their conviction, even in the face of new evidence, and they don’t want to utilize time or resources to retry a case they already won. But they don’t want to give up and simply let the person out either. There is also the principle of finality in the criminal justice system, and that means that courts and likewise prosecutors are very reluctant to change their minds unless there are serious and obvious issues with the verdict. As we discussed in the junk science episodes, there can be many reasons why a jury would find a defendant guilty, and there is no great way to determine the weight each factor may have been given, even if one piece of evidence turns out to be faulty, it does not mean that the other evidence is trials and jury thinking can be very nuanced and complicated. Unwinding that process takes a lot of effort. So probably the best way to solve a dark plea problem is to prevent them from happening in the first place. But how do we do that?

Justice Michael Donnelly:

Let’s give the prosecutor the benefit of the doubt and believe that they have a good faith belief that the jury got it right. That’s fine, but you don’t leverage before you find out that you’re facing a new trial. The keys to the prison system in exchange for a plea where someone is no longer presumed innocent because a dark plea is what is known as a legal fiction. It’s a lie to the public because what’s supposed to happen is once the evidence is presented and proves that the theory of guilt was completely undermined, that that was junk science that was used to convict. She’s entitled to a new trial. She’s not declared innocent, but she’s put back at a state where she is presumed innocent and the state has now the burden of proving that she’s truthfully guilty beyond reasonable doubt. Angela was prevented from getting to that point, which is a tragedy and that’s why these pleas are so insidious.

But it’s also an insult to the public and a disservice to the public because the public has a right to belief that the outcomes of our system are based in truth and based in fact. And as you heard Joanna say, we had strong evidence of Angela’s innocence. They were prevented from presenting that evidence in open court where everyone could see it and it could be tested by the state through cross-examination, and the press could be there that was all taken away and they used that leverage, that power. As long as this stuff happens in the dark and judges aren’t trained in spotting this, it’s going to continue to happen. People ask me, well, what would you have if you were the judge? Well, I would’ve gone out in court and said, let’s start the hearing right now. And then the prosecutor, as in Angela’s case, would’ve stood up and said, Hey, we’ve been talking out in the hall and we have a deal.

That would’ve seemed strange to me. How do you have a deal you’ve already resolved? We’re here to resolve whether she deserves a new trial. Oh, well, what we’re going to do is we’re going to withdraw our opposition to her motion for a new trial, and I would’ve stopped him right there. And then nothing. If you drop in your opposition to the motion for a new trial, I’m granting it and we’re going to set this matter for trial. You’re presumed innocent, we’ll set bond and you can proceed. Now you’re back on the front end of the system where you’re presumed innocent, then there’s going to be more of an even playing field in terms of Angela’s decision to enter a plea or not, because she was put in an impossible, impossible situation. Judges need to protect against that authority and what we tell the public when pleas are negotiated, the judge is there to ensure that that plea is being entered knowingly and voluntarily. Now look at the circumstances of what happened to Angela and anybody else who has been offered a dark plea and how can you say with a straight face that they entered that plea voluntarily. Okay? And if we continue this, we’re undermining the whole system and all the virtues that we’re supposed to be striving for.

Michael Semanchik:

Judges and justices are probably in the best position to prevent unfair plea deals, but that’s only if they’re aware of what’s going on and if they have the legal tools to deal with it. As you just heard here, justice Donnelly would eliminate the heavy leverage of a dark plea by not allowing it to happen before a new trial is granted. By doing that, he hopes to put the defendant back into a fair position by restoring their presumption of innocence effectively. He would restart their constitutional trial protections by not allowing the prosecution to bypass the court with a high pressure plea deal at that time. But judges and justices can only do so much. Every state court addresses constitutional due process in different ways. And so some of the fixes might come by way of legislation and possibly the ballot box during elections.

Joanna Sanchez:

Education is a huge piece of the judiciary and then also prosecutors. I do think that some of the reforms that are being discussed here in Ohio would help because it allows the defense. Some of the rules being discussed would allow the defense access to discovery would make hearings more likely, would remove some of the procedural barriers to getting new trials. And if you take away some of those obstacles, then we can have greater confidence that if we proceed with the hearing, that we might get to the right result. And then there’s also been some suggestions about some kind of creative solutions like requiring that prosecutors attest to the ground supporting whatever they’re asking the individual to plead guilty to. So actually having to go on the record and provide some support for the decision that the prosecutor’s making in the case and the plea agreement that they’re proposing, and that might have the effect of bringing this to light more.

It is an issue in Ohio. It’s not one that I think we can’t really know the number, but anecdotally, I think from the time I litigated in Angela’s case, we’re seeing it in more than 50% of our cases When we get to this point, either before a hearing or after a new trial, motions fully briefed, were being offered these kinds of deals. And so it is a practice that we’re seeing increase. We presented this information at the Innocence Network Conference this year and we heard from so many projects that they’re experiencing this exact same thing. And so I think having these really nuanced conversations about this kind of topic is really important and it causes people to pay attention to what’s happening in their local criminal legal system. Who are they electing? Who’s making the decisions? Is this practice common? And there are ways that people can address that at the ballot box, and otherwise

Michael Semanchik:

It should be mentioned that not all lawyers who work on innocence cases feel the same about dark plea. Some while they don’t like the practice are reluctant to completely get rid of it because they’re worried that the state will simply stop cooperating and resort to fighting every case. And so there is fear that they would not be able to get their clients out is easily all things being equal. It’s better to have a legal fight outside of prison versus inside with these kinds of changes. It’s just not possible to know the entirety of the impact before it actually happens.

Justice Michael Donnelly:

I talked to Mark Gaze head of the Ohio Innocence Project, and he said, I’m going to put a survey out nationally and ask Innocence Advocates, would you be in favor of a statute banning this practice? And interestingly, the response was kind of 50 50, yes, this is so unjust. Then half of them said, yes, these are terrible. We agree they’re unjust, but we have to have ’em because sometimes that’s the only way we can get our clients out. So my response to that is, if you’re going to go that route, we might as well stop complaining about it because this is how power works, especially in a non-transparent system. And if people are allowed to do this, they will continue to exercise these kinds of dark police. And it just happened in Ohio. In Toledo. Two defendants who were covered on the local news and exposed guilty without proof was the name.

I appeared on a newscast about this because what happened was they were denied a hearing by the trial court, so the state won. The only recourse these two defendants had was to proceed to the court of appeals and get the fact that they didn’t get a hearing ordered, and that was going to take about three years. Interestingly, the prosecutor comes out of the blue, the prosecutor who won the case and calls the innocence advocate and says, Hey, how about if you plead to what we convicted you of, even though we won the hearing? You plead we’ll let you out today. Then the matter’s done, and it was covered by the local news and nobody questions like, why is the state doing this? Why is the state doing this? And again, it comes back to what I said before because they knew they were going to lose by the time they went up to the Court of Appeals. The Court of Appeals would’ve said, judge, you have to have a hearing. That’s why we’re trying to advocate for a new rule 33.1 here in Ohio that would require judges when there’s a non frivolous motion for a new trial, that you have evidence that they have to have hearings. This is something that would be a step in the right direction, bringing that transparency to these types of claims

Michael Semanchik:

Regardless of how the problem is tackled. Everyone working on innocence cases is concerned when our innocent clients are exposed to a high pressure deal with very little time to think that pushes them into a bad agreement that will impact the rest of their lives. As we talked about in the previous episode, a guilty plea impacts your ability to find a job, secure an apartment, and in some cases disqualifies you from benefits offered to the wrongfully convicted. In addition, you lose the ability to sue the government for compensation for all those years behind bars. Angela Garcia and so many others like her are dealing with this every day, and she’s already been through so much already.

Angela Garcia:

It’s a lot to handle, and it is not only losing my children, losing half my life, but now I have to deal with all these other things outside of that. And it’s like, when can I just get a breath of fresh air? When can I just breathe? When can this be put behind me so I can just move forward with my life? I’ve been home almost two years and it seems like I still can’t move forward with my life because I constantly have to deal with this conviction. And so I struggle with it all the time, and I get mad within myself like, I know I didn’t do it. Why was I such a coward to not fight? And that’s one of the biggest things that I deal with.

Michael Semanchik:

Dark pleas are part of our criminal justice system for the foreseeable future. As time goes on innocence, organizations around the country and judges are learning how to deal with them more effectively, it will take time. But I am optimistic that we will strike a new and better balance to convict the guilty while also protecting the innocent. Thank you for listening. We hope you enjoyed this episode. Brought to you by the generous support of Clio, the legal operating system for client-centered law firms. Produced and written by Laurence 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. Until next time, I’m your host, Michael Semantic, and you’ve been listening to For The Innocent here on Legal Talk Network.