More than a decade ago I stood next to my client, a fourth-grade-educated immigrant using a Spanish interpreter, as a federal judge explained epistemology to him at length.
The road to this moment was rocky. The client had previously attempted to plead guilty to possession of heroin with intent to distribute. Midway through his previous guilty plea colloquy, the federal judge — let's call him Judge Allows — had abruptly asked the client's previous appointed attorney why he hadn't moved to suppress the search of the client's car. The attorney explained he didn't think it was a strong motion and wanted to take advantage of the Assistant U.S. Attorney's plea offer. Judge Allows scoffed and indicated he thought it looked like a plausible suppression motion. The client, not surprisingly, lost faith in this prior appointed attorney based on the judge's words, halted the plea, and asked for a new attorney. I was serving on the indigent defense panel, and I was appointed to replace prior counsel.
I reviewed the discovery, conferred with my client, and prepared a motion to suppress. The client had driven up the driveway of a known drug house that was under surveillance, parked for several minutes while he went into the house, then left the house and drove away. Cops stopped him blocks away and searched his car and found the heroin. I argued that these facts were insufficient to supply probable cause to search the car. I thought the motion was plausible, but not strong, and still do. At the hearing on the motion, Judge Allows berated me for filing a motion that clearly was not going to succeed — a "shot in the dark motion," as I recall he described it. That would be the same motion he berated former appointed counsel for not filing, leading to the breakdown in the client's relationship with his former lawyer.
I stood and took the rebuke, as one does. Thereafter the client agreed to plead guilty. I prepared him for the lengthy and complex federal change of plea colloquy to the best of my ability through an interpreter, hindered by his modest education and lack of sophistication. Midway through the plea colloquy, Judge Allows was explaining the elements of the federal crime of possession of a controlled substance with intent to distribute. Judge Allows solemnly intoned that the client must have possessed the heroin knowingly to be guilty of the crime, paused, steepled his long fingers, and launched into a ten-minute digression on the nature of knowledge and our tenuous acquisition and/or retention of it. What do we mean when we say we know a thing? Do we actually know things, or only believe things? How is belief different than knowledge? Do we acquire knowledge through rational perception, or is that merely a facade?
The interpreter struggled. My client, listening to her, bore an expression first of surprise then incomprehension then alarm then resignation, as if he was valiantly attempting to follow Judge Allows' discourse before eventually deciding — not entirely inaccurately — that this was part of his punishment. I seethed. Here's this guy, in an unfamiliar country, on one of the worst days of his life, about to be ground up by the amoral and catastrophic War on Drugs, soon to be sent to some hellhole for most of a decade, terrified and confused, and the judge is publicly indulging himself like a monkey at the zoo. I didn't say anything. With federal judges, one doesn't. Lifetime tenure, you know.
I've made that sound farcical, because it was. But here's an unpleasant truth — federal guilty pleas are often farcical.
In state court, a criminal defendant pleading guilty is a brief affair. The deal is rarely in writing. The defense attorney or prosecutor announces very briefly on the record what the deal is, and some of the time someone briefly tells the defendant that they have rights they're giving up by pleading guilty. That's it. I've not seen a state guilty plea last five minutes.
By contrast, a federal guilty plea routinely takes half an hour or more. Rule 11 of the Federal Rules of Criminal Procedure sets forth a list of rights that the judge must explain to the defendant. The judge must also inform the defendant of a variety of issues like the nature (usually the elements) of the charges, the potential sentence, potential collateral consequences, how sentencing works, and so forth. Most judges use a rote script, like this 48-point script from the Eastern District of Michigan. A judge's mannerisms and personality can shorten all of this to around 20 minutes or draw it out to an hour. The purpose — allegedly — is to ensure that all pleas are knowing and voluntary.
But there's a problem – a human problem – with a scripted exchange like this. Over time, with practice, it becomes less like a dialogue and more like a religious ritual, a set of memorized questions and responses as familiar and rote as the Catholic mass of my youth. It's treated as something to be gotten through, not an actual inquiry into the defendant's genuine understanding and informed consent. A defense attorney's job is to make certain the defendant knows his or her rights and understands what's going on, certainly, but a defense attorney's job has also largely become telling the defendant what questions to expect and what answers the judge is looking for. Defense attorneys must explain to their clients that certain responses (like "it didn't actually happen that way" or "I'm doing this because three years is better than the risk of 12" or "no, much like the entire news media, I don't understand the Federal Sentencing Guidelines") — even if sincere — will derail the plea and send the federal judge into a risky fit of pique. An off-script answer is too often not an occasion for careful inquiry, but an opportunity to ask the same question again, increasingly loudly, until the defendant answers right, like giving a cue to a hapless fifth-grader in a school play. It's more reminiscent of a Monty Python sketch than a search for truth. After this charade, the trial court has made it's "record," upon which future courts and Courts of Appeal will rely in determining that the defendant's plea was knowing and voluntary, because look, he or she said so under oath right on the record.
As an example, consider this recent decision by the Ninth Circuit overturning a guilty plea. The defendant was clearly difficult and had issues — quite possibly of her own making — with multiple attorneys. She articulated much better than most defendants do her complaints about her attorneys. This eventually resulted in a discussion in which a magistrate judge — not the one who took her plea — pointed the way she'd have to go to plead guilty, and what she could and couldn't say to make it through a plea:
The Court: No, no, no, you don’t get that,
because if you just placed on the record that,
you know, you would have to commit
perjury, I would love to hear about that. Who
asked you to commit perjury?The Defendant: No. Sorry. I misspoke. I’m
sorry. I apologize. What I meant to say is
that at the end of the plea, it says that I have
to submit and say I have been . . . that “I am
satisfied that my defense attorney has
represented me in a competent manner,” . . .
I don’t want – I’m scared to go to trial
because I don’t think that he’s going to, you
know, put a fight for me. Your Honor, he
didn’t submit any pretrial motions at all.…..
The Court: . . . This is all I need to know from
you, ma’am. You’ve been arraigned on the
second superseding indictment. I’ve also
informed you of your trial date. Do you wish
to go forward with the change of plea
hearing? Yes or no.The Defendant: Do I have to have the clause
in there about my attorney? [referring to the part
of the plea colloquy where she's asked
if she's satisfied with her attorney's
representation]Mr. Vercauteren: Yes. You’re asking me?
The Court: Yes, you do. Who are you
asking?The Defendant: Just – I don’t know.
The Court: Well, you turned to Mr.
Vercauteren. That’s part of [Federal Rule of
Criminal Procedure] 11, ma’am, because you
have to be satisfied with the representation
and understand the terms and conditions of
your plea agreement. But in terms of
satisfied with the representation, it doesn’t
mean – There’s – In terms of competent
representation, it doesn’t mean that Mr.
Countryman has to look at and touch every
single aspect of the case. If Mr. Vercauteren
reached out to Mr. Countryman and said,
okay, count number one and count number
ten, which happen to be what we’re seeking
your client’s guilty plea on, here’s the
discovery information that directly relates to
Count 1 and Count 10. If he reviews that,
that’s a diligent lawyer who’s doing what
he’s supposed to be doing. . .
The Defendant: Why is it the fact that even if
I’m willing to take the plea, that clause about
him, about my attorney? Why do I have to
submit to the fact that he competently, you
know, advised me in the matter?The Court: Rule 11, there’s certain things that
must happen if a person says I wish to plead
guilty. As part of Rule 11, you have to
believe that your lawyer is competent and has
represented you properly.The Defendant: Your Honor, I don’t believe
that, but at the same time I’m scared to go to
trial with him because I don’t think that he’s
going to do me justice.
The prosecutors extended the guilty plea deadline (an entirely artificial construct at the whim of the prosecutor) by a day, and the defendant entered a guilty plea. The Ninth Circuit ruled — quite reasonably, I think — that the magistrate judge's discussion with her raised serious doubts about whether her waivers of rights in her guilty plea were reliable. "We conclude that there is a substantial risk that Velazquez agreed that she was satisfied with her attorney’s performance because the magistrate judge pressured her to accept the plea and she knew that she had to make that statement to enter the plea." No shit.
I still prefer federal guilty pleas to state guilty pleas, because even a rote ritual is better than nothing. But too often, a federal guilty plea represents a dangerous element of the criminal justice system — the sentiment that if we just go through the motions, justice will result. This is the same sentiment that leads prosecutors to submit warrant applications to federal judges for rubber-stamping and judges to go through the charade of a trial with entirely inadequate defense counsel. It's the sentiment that the form, not the substance, matters. Form's better than nothing. It's what we have. But I decline to pretend that it's enough.
Last 5 posts by Ken White
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While in my experience state-court guilty please are less elaborate, I do usually have to go through an eight-page form with the defendant (usually with an interpreter) and get his/her initial on each paragraph. Sometimes there are questions on particular points, but that is rare; most recognize, again, that this is just some rote bullshit they must endure. The bureaucratization of judicial procedure.
A guilty plea in a court-martial is accepted only after a "providency inquiry." (I've watched a lot of them, and done a few.) This is kind of like an allocution, but is much more judge-driven. The judge inquires as to what actions the defendant took that satisfy each element of the offense. It's actually kind of painful and humiliating. But what it isn't is an empty ritual. And it doesn't contain any stupid "customer satisfaction" surveys about how pleased the defendant is with his attorney. That's idiotic.
*sigh* That is sad-making. How would one go about fixing the issue?
Holy crap. I think the judge only changed his mind because he realized that he needed you to make the guilty plea after all, so that he'd have an excuse to let out all that hot air for the fear of floating away. http://youtalktoomuchcole.ytmnd.com/
"Federal judges always really mean it." — Ken White
(I keep it on the wall in my office as a reminder.)
Also, the words "judge" and "grudge" sound a lot alike.
So, can anybody actually justify the existence of the guilty plea?
The possibility of sending somebody to prison on a mere confession, in a situation that obviously encourages a lot of people to put that person under duress and gives them the means to do so, seems like a bad thing to have in your procedures in the first place, regardless of what rituals you put around it. Especially when you have ample evidence that many guilty please are in fact based on threats and duress.
Yes, I understand that the system would collapse if it actually had to try everything. Maybe that would make people think twice about the massive overcriminalization we have?
@Sok Puppette – you mean removing any incentive for prosecutors to agree to a reduced sentence or to waive seeking the death penalty, since they have to roll the dice anyway? Allowing actual bad actors who have done terrible things to walk free under a collapsed system purely to make a point about criminal laws we don't like?
If you're going to invent a fantasy, more realistic and better ones (like ending the War On You People's Drugs) is a better one.
Poor woman. She just wants to make sure she's not waiving her fundamental right to effective assistance of counsel, but no one understands that's what she's saying because, unlike me, they don't have only the most superficial understanding of how that works, and therefore can't recognize how counsel's (perceived) deficient failure to file pre-trial motions is prejudicing the outcome of her plea hearing.
Inside-the-box thinkers. They never listen.
@mythago: First of all, I think that a lot of the crazy draconian sentences are in the law partly because prosecutors have lobbied for them… so that they can use them as threats in plea bargains. And another part of it is that if people routinely plead to less than what they actually did, politics in general are going to tend to drive the sentence for what they plead to to be what the sentence actually "should" be for what they actually did.
And, in any case, if you believe that a sentence is in fact crazy and draconian, shouldn't you want to repeal it rather than relying on setting up a system of "incentives" for prosecutorial mercy? Whereas if you think the sentence is a just one for what the person actually did, wouldn't you want to actually see the person convicted of that and sentenced that way? A system that leaves sentencing largely up to the prosecution is not very healthy.
As for "making a point", I don't think you'd have that many real bad actors wandering around free. I think you'd have to set some priorities about what laws you enforced. Ideally by trimming down the number of laws you had in the first place. Like maybe ending the WOYPD.
And if not, maybe people who want to criminalize everything should just have to pay what it costs to have real trials.
Of course, there's a risk that the system, under pressure, might try to get more "efficient" by finding some way to railroad people. But that's exactly the problem we have now… the plea system we have is a way of railroading people.
Honestly, though, I agree that it's not a practical observation. The guilty plea isn't going anywhere. Nor is overcriminalization going anywhere. People love to punish whatever deviancy it's fashionable to hate on any given day.
But that doesn't mean that anybody should pretend it's just.
This reminds me of looking up one Federal defendant's records in PACER.
After filing a handwritten motion to fire her court-appointed attorney for a habit of not showing up at the office, she wound up pleading guilty, and there was something noteworthy about that as well. Boilerplate language said that she'd been thoroughly and carefully advised of her rights. The record of the guilty plea documented when the court appearance started and ended. The start and the ending were 13 minutes apart.
One interpretation is that the courts are just so skilled and efficient that they can fully explain a bundle of legal concepts to a lay person in 13 minutes.
Just brainstorming here, but maybe there should be a limit on how much a prosecutor can offer in exchange for a guilty plea. If offering someone a year or two off gets them to skip the trial, that's one thing. It's another entirely if the plea offer is 3 years and the threat is life without parole. That wasn't Federal, that was a California state case. A disparity like that turns it from a "bargain" into "an offer you can't refuse".
As long as we're fantasizing, might as well go for the gold. Let's daydream about a system in which innocent people can be sure of getting acquitted if they go to trial. In that CA case I mentioned, the prosecution committed a Brady violation of Biblical proportions. It's _possible_ the guy was guilty but an innocent person in his position would also have wound up 77 years old in San Quentin, blind, and with the other inmates thinking he's a baby raper, with his appeals getting rejected on technicalities.
I think it's a relic from the old days where an accused first hat to confirm that the court had jurisdiction over him by entering a plea. (Refusal would result in torture until a plea was entered or the accused died, whichever happened first.)
Coming from another legal sphere, it doesn't make sense. If the accused wants to add a confession to the list of evidence, let them. Then, let judge or jury consider the available evidence. Even a confession can be made up.
But then again, tradition counts for a lot in legal matters.
Wouldn't it be best to return discretion to the judiciary (with some oversight), rather than continue the practice of judging from the state house? Make statutory sentencing a guidline rather than a mandate and allow judges to set sentences based on the facts, including mitigating facts and circumstances, of a case.
Have a review body similar to a grand jury, advised by a prosecutor, a defense attorney, and a retired judge, review non-conforming sentences (those made outside the statutory guidelines) that are appealed for review by either the convict, the prosecutor, or a victim of the crime. That body would hear the facts of the case and review depositions from convict or victim(s) disputing the non-standard sentence, and then, either affirm the non-standard sentence or return the case to the court for sentencing within the statutory guideline.
Torture and Plea Bargaining
I guess you could have "not guilty" and "no contest" where the latter is not taken as admission of guilt, and in turn, the prosecution would have to meet a lower epistemic standard (perhaps "clear and convincing" or "on the preponderance of evidence" rather than "beyond reasonable doubt"). The prosecution enjoys an easier trial when it has substantial (if not bullet proof) evidence, but can't rely on a few circumstantial details and an effectively coerced confession.
(Not that this is likely to occur or even desirable in a justice system, but it doesn't seem obviously awful an idea.)
I've heard in some cases, prosecution is required to verify the confession e.g. in a murder case, upon confessing one must also offer up verifiable information about the crime (like where the missing murder weapon is), and prosecution is required to verify this before relying too heavily on the confession. Though I have no idea how this actually works in practice (when it's expected, etc), and it might just be a Canadian thing.
One of my main complaints with plea bargains, which I think are useful tools, are the requirement that often comes with them that the defendant confess. That part of the ceremony only serves to undermine justice. It's the exclamation point on the old joke of "everyone is innocent", and besides being in prison in the first place, is the first thing used to undermine the credibility of the defendant on appeal. In other words, "you wouldn't have said you were guilty if you didn't do it", etc. No person should ever be compelled to acknowledge guilt as a condition for any inducement. We've proven you can convict innocent people, so "no contest" should suffice.
Jacob Schmidt says May 10, 2017 at 5:28 pm:
That sounds like a garbled and loosely worded version of the corpus deliciti rule:
An extrajudicial (unsworn) confession alone cannot constitute corpus delicti.
Example: You tell a policeman, "Last Saturday I shot a man in Reno, just to watch him die." You cannot be tried for murder, adw, etc. unless there is independent evidence that somebody actually was shot in Reno last Saturday. Otherwise, there is no evidence that a crime actually occurred.
Example: You are at home, drinking. A policeman knocks on the door and asks, "have you been driving in the last hour?" You answer "yes". You cannot be prosecuted for DWI because there is no evidence that you have been driving, much less driving drunk, except your extrajudicial confession.
Very nice.
"I am satisfied that my defense attorney has represented me in a competent manner"
It seems to me that this is just a bad question. I think the court should make sure that the defendant has had adequate ability to consult with counsel. But, whether counsel was competent is an issue best addressed in a PCR or possibly at a rep hearing. Where I practice we have a similarly bad question about whether a defendant is "satisfied" the the legal advice he or she has received.
A defendant is usually in no position to have any idea whether or not counsel is "competent" or whether they should be satisfied with his or her advice. I think this language is devised to head off ineffective assistance claims, but those claims require another attorney to look at the case for precisely this reason. The court's role is to make sure that a defendant has adequate access to an attorney and (very rarely) to get rid of an attorney who is obviously ineffective or has a conflict. It's not to make sure that customers are satisfied and to make them pretend to be satisfied for the sake of appearances.
Getting convicted of a crime sucks. Defendants shouldn't have to pretend they are happy about it.
This, exactly. The defendant is generally unqualified to make such a determination.
When we're talking about an immigrant with a grade 4 education who's unfamiliar with our legal system and receiving instructions/explanations and answering questions through a translator, we're so far past "maybe" territory that it can't be spotted with NASA's telescopes.
The purpose behind the consumer satisfaction question is to try to prevent post conviction claims of ineffective assistance of counsel. The judge in Velasquez should have paid attention instead of just trying to get it done.
neoteny: That link is worth repeating. http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=4154 . It won't tell you much about the realities of dealing with the legal system today (something in which practicing attorneys constituting what appears to be an unusually large fraction of replies in this set of comments find themselves embedded) but as an view of how we got here … a fascinating, deeply disturbing read.
Especially in light of recent pronouncements by our can't-be-too-tough-on-crime AG.
— Jerry
@neoteny: That link is great. It won't tell you much about the realities of dealing with the legal system today (something in which practicing attorneys constituting what appears to be an unusually large fraction of replies in this set of comments find themselves embedded) but as an view of how we got here … a fascinating, deeply disturbing read.
Especially in light of recent pronouncements by our can't-be-too-tough-on-crime AG.
— Jerry
Personally, I think you could fix a lot of the issues with a guilty plea by changing from plea bargaining to fixed "reductions" for early guilty pleas – something like "if you plead guilty in writing before your first court appearance, your sentence is reduced by 33% to reflect this; if you plead guilty at first appearance, it's reduced by 25%; if you plead guilty before any witnesses are summoned or arguments heard, you get a 10% reduction."
The idea is to reward the guilty for admitting guilt without a trial, while taking away prosecution flexibility on pleas – it's all about giving you a lighter sentence if we don't have to go to the time and expense of a full trial.