The shakedown artistry of our criminal justice system

Defendant Standing Before the JudgeBack in October, I wrote about the fact that one of my sister’s friends had been arrested for allegedly doing a very bad thing.  I noted at the time that I had no idea whether or not he’d done the bad thing, but that it was apparent that the prosecutor’s office was setting it up so that he would go to jail whether he was guilty or innocent:

The guy ended up being charged with 21 counts, many of them duplicative, and all of them carrying very high minimum sentences.  He will almost certainly plea bargain.

If he’s guilty, a plea may be a good deal for him.

If he did what he is alleged to have done, but there are extenuating circumstances, that’s irrelevant in terms of deciding the risk of going to trial.  The moment a jury concludes that he committed the acts, he’s done for.  So again, a plea bargain is the way to go.

And then there’s the question of whether he’s innocent.  By charging him with 21 acts, the prosecutor, by bringing 21 counts against him, has already sent a signal to the jury that this is a “bad” man.  The legal presumption may be innocent until proven guilty, but a jury will almost certainly think “Boy, that’s a lot of smoke.  How about if we just convict him on one of the charges?”  The jurors won’t know, of course, that just one of those charges can mean decades in jail.  So again, the best bet for the guy is to plead out.

So think about that for a moment — we have created a judicial system where a person, whether guilty, innocent, or with a good excuse, begs to go to jail rather than to face the stacked deck in court.

But there’s more to it than that: This system encourages lousy police work, because the police know that they probably won’t be called upon to answer for it before a judge and jury.  Police are rational and they are overworked.  Even the best and most decent of them will eventually fall down the slippery slope of dangerously careless policing.

I wrote about a single case.  Glenn Reynolds has indicted the entire criminal justice system:

Here’s how things all-too-often work today: Law enforcement decides that a person is suspicious (or, possibly, just a political enemy). Upon investigation into every aspect of his/her life, they find possible violations of the law, often involving obscure, technical statutes that no one really knows. They then file a “kitchen-sink” indictment involving dozens, or even hundreds of charges, which the grand jury rubber stamps. The accused then must choose between a plea bargain, or the risk of a trial in which a jury might convict on one or two felony counts simply on a “where there’s smoke there must be fire” theory even if the evidence seems less than compelling.

This is why, in our current system, the vast majority of cases never go to trial, but end in plea bargains. And if being charged with a crime ultimately leads to a plea bargain, then it follows that the real action in the criminal justice system doesn’t happen at trial, as it does in most legal TV shows, but way before, at the time when prosecutors decide to bring charges. Because usually, once charges are brought, the defendant will wind up doing time for something.

The problem is that, although there’s lots of due process at trial — right to cross-examine, right to counsel, rules of evidence, and, of course, the jury itself, which the Framers of our Constitution thought the most important protection in criminal cases — there’s basically no due process at the stage when prosecutors decide to bring charges. Prosecutors who are out to “get” people have a free hand; prosecutors who want to give favored groups or individuals a pass have a free hand, too.

Please read Reynold’s entire article.  It’s an important one, especially because we live in a time when it’s become impossible to know what the law is.  Ours is not a society of “few rules but unbreakable.”  Instead, it’s a society of “many rules, mostly unknowable.”  If we get in the government’s cross hairs, the government can retrofit our seemingly innocent conduct to comport with some obscure rule or regulation . . . and then it nails us to the wall.

This is why the NSA spying is so terribly disturbing.  Between an accessible database of every bit of information about us, and an unknowable arsenal of laws that almost certainly touch upon things that all of us do or have done, we have a police state without brakes.

When I posted Reynold’s article on Facebook, a friend of mine who served in the Navy JAG back in the early 1980s noted that, when he was a military prosecutor, he and his team were barred from talking about “my” case or, after a successful prosecution, from saying “I won” or some variant of that.  The theory was that a prosecutor who became too personally invested in prosecution could essentially go rogue.  That was a good rule.  It doesn’t seem to apply anywhere any more, whether to military, federal, or state prosecutions.

Be Sociable, Share!
  • Bill C

    Reynold’s solution was to allow the jury to know if there were any offers of a plea bargain.  I think we need to educate the public about these tactics and about jury nullification.  No reason why a group of citizens shouldn’t have the ability to decide if the law was stupid or misapplied.

  • lee

    An aquaintence of my husband, from his long ago past, was arrested last fall on method charges. He’s so screwed. He was set up. He was stupid, and I’m sure he’s done his share of drugs, and other stupid crap. Some guy, habitual offender, was busted, and offered them up this guy. And what he did was bring met lab materials to the guys house and asked him to hold of for him. Then, the cops swarmed in and busted him. He’s getting the kitchen sink tossed at him. Can’t afford a lawyer. The only option he’s got is to plead. 
    I recently read about a woman who was finally released after servingsome 20 years for murder. The actual murderer made a plea deal and implicated her. He said she was the mastermind. His sentence was significan less than hers. She was completely innocent. She worked for the man who was murdered, some guy who owned a coin shop.
    Prosecutors are so into convictions. They judge their success on conviction rate. But true success is about justice. Justice is more important than convictions.
    has no one in the judicial system read Portia’s speech? lawyers passing the bar should recite it like doctors the Hippocratic oath.

  • shirleyelizabeth

    Two years ago in May I served as juror on a month long trial. It was a drive-by shooting, and the guy was guilty. It was so sure that the defense never denied it, but spent their arguments fighting the ten or so other charges. We only found him not fguilty of one.  The charges, though were very redundant. One for shooting the gun, one for possessing the gun, one for aggravated assault, one aggravated assault on an officer, etc. It was set up if, logically, he was guilty of one, he was guilty of them all. And what we were reminded of each time before arguments was that it was not our job to critique the laws – only to judge based on what the law said, and the definitions of the law that they gave us.

    • Ymarsakar

      Since lawyers write the laws as politicians and judges are merely lawyers that interpret the law as they see fit, obeying the Law means obeying the lawyer’s unions.
      The corruption in this part of the system comes directly from the Left’s Lawyer Unions. At least 50% of the union dues are spent on producing corrupt lawyers. The more corrupt lawyers, the more money can be produced and corrupted. The more money, the more evil can be funded. Like any operation, it becomes self sustaining with enough power and wealth.
      All of this was true before Hussein and it will be true after Hussein as well. The Left did not merely start this century.

  • Ymarsakar

    “and an unknowable arsenal of laws that almost certainly touch upon things that all of us do or have done, we have a police state without brakes.”
    Your point sounds like the one she made here.

    For a publicly educated amateur, she has connected the dots. As strange as that may be.

  • Pingback: The view from the trenches puts the lie to the media’s gloating about 7 million Obamacare new enrollments()