August 19, 2020 • 47 mins
What happens when sentencing is taken out of judges' hands? And why would an innocent person plead guilty?
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Episode Transcript
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Speaker 1 (00:03):
If you will place your left hand on the Bible
and raise your right hand, and please repeat after me,
and I do solemnly swear, then titled action find the
defendant guilty of the time. It makes no sense, it
doesn't fit. If it doesn't fit, you must aquit. We
all took the same of the office. We're all bound
(00:23):
by that common commitment to support and defend the Constitution,
to bear true faith in allegiance, to say that you
faithfully discharge the duties of our office. Do you solemnly
swear or affirm that the testimony you're about to give
will be the truth, the whole truth, and nothing but
the truth. From Tenderfoot TV and I Heart Radio, this
is sworn. I'm your host, Philip Holloway. Usually when I've
(00:51):
represented somebody that I believe was fully innocent, they were
normally found not guilty. But the very last trial I
had were three defendants who were charged with drug trafficking,
and one of them I knew was innocent. It wasn't
(01:13):
my client. My client without telling me he was guilty
or not guilty. He told me that the other guys
was innocent and that he felt terrible about it. He
had just asked him to go to lunch, and they
stopped by the drug house on the way to lunch.
So then the third guy's lawyer, he said, you know,
(01:33):
you know that defendant number two is innocent, don't you?
His client had told him. My client had told me.
Two family members who were closer to defend us one
and three told me that two was innocent. And plus,
having heard everything that happened, is not a doubt. My man,
the guy was innocent. But as bad luck would have it,
(01:55):
all three were convicted, and due to mandatory animum sentencing,
they all got twenty five years. And so at the
sentencing that J S YEA all ready for sentencing, I said, yeah,
but my client wants to be sentenced first. The only
thing my client said was that so and so was innocent.
(02:16):
He didn't ask for a lenient senate. My client didn't
ask for anything for himself. He just spoke on behalf
of the defendant number two. But you know, the jury
had just found him guilty, so they all three he
got twenty five years. That was Ray Geary, a retired
(02:43):
judge and defense attorney. Ray helped inspire me to enter
private practice nearly two decades ago. And taught me a
great many things that I now know about running a
law practice. That story about Ray's last case features heavily
the use of mand tory minimum sentencing, the topic of
this episode. A mandatory minimum sentence is an amount of
(03:06):
prison time that someone is required by law to serve
for a particular crime. These laws are enacted by legislatures,
and they make the legislatures rather than judges, responsible for
sentencing in a given case. There is a lot of
debate about mandatory minimum prison sentencing in the United States
right now, and there is also a push for legislative
(03:29):
reform that we see taking place around the US involving
mandatory minimum sentencing. The first person we spoke to about
this was Kevin Ring. My name is Kevin Ring, and
I currently serve as president of FAN formerly Families Against
Mandatory Minimums. Fam is a national criminal justice reform organization
(03:52):
that's been around since Dedicated to the idea not controversial.
We think that the punishment should fit the crime, that
people should be sentences individuals for whatever crimes they commit,
and that judges should have the authority to passion sentences
that fit each crime. Usually Congress or a state legislature
(04:14):
will say for a certain crime, anybody who violates it
can get up to five years or up to ten
years in prison. A mandatory minimum will say this person
gets up to ten years, but no less than five years,
so they set a floor under which a judge can't
go even if they think the facts and circumstances of
(04:35):
the case warranted. In the federal system, this is usually
done with drugs. If you traffic five grams of math
and fetamine, you get a five year mandatory minimum. That
means it doesn't matter if you were the kingpin, the
logo and the total pole. The five gram trigger requires
a five year mandatory minimum prison sentence. So it's different
(04:57):
in other sentences that don't carry these man tory penalties
in that a judge loses discretion and once you're convictive
of crime, the punishment is automatic. I was a Capitol
Hill staffer in the early nineties. I was just like
everybody else, twentysomething year old who knew nothing but thought
(05:18):
I knew everything. I was a Republican conservative in my
ideology matched that of the leaders at the time. Crime
is out of control in the way to solve it
is to throw the book at people. There weren't a
lot of studies about mandatory minimums at the time because
they had just come back into vogue in the mid eighties.
(05:42):
So we knew the prison population was rising, but crime
was falling, and so that did not dissuade us from
thinking that this was a good answer. It was my
turn to write a bill dealing with methamphetamine, which was
now becoming a very aggressive drug across the country. I said, well,
here's the answer. Then we'll just make the penalties for
methymphetamine the same as they were for crack. We didn't
(06:06):
have any hearings, We didn't bring anybody in and say, well,
what's going to be the real world impact of this.
What's it going to do to our incarceration rate? If
we spend more on prisons for even low level of enders,
are we gonna have fewer police and prosecutors? Is this
the best use of our anti crime resources. There was
no study involved at all. We just knew it would
(06:27):
be politically popular to say meth is dangerous and scary,
so let's just ratchet up the penalties. I was part
of that process. I helped draft that bill. It passed
through Congress and I think it did a lot of damage.
It tied judges hands now in a new area with methamphetamine,
just as it was in all these other drugs. In
(06:48):
some ways, I've switched sides, but I can't even say
that my position before was well informed. I was just
somebody who believed the tough on crime line that if
there's a problem, the way to get rid of it
is to punished the heck out of it. Mandatory sentences
have been around since the beginning of the country. It
(07:09):
tends to track whatever the crime to juror was. The
first ones were like piracy. When Robert F. Kennedy is
murdered after the California primary, the next day they passed
one about guns, a couple of things happened. There were
real responses to crime. Sometimes it was a moral panic.
Sometimes it was a legitimate fear that crime was out
(07:30):
of control, and they felt obligated to do something to
look like they were being responsive. There was a period
in the seventies where lawmakers lost faith and judges. They
saw too many judges giving people what they thought were
slaps on the wrist for serious offenses, and they thought
they couldn't be trusted anymore. Legislators started taking that power away,
(07:50):
and then they thought it was politically popular to do.
So what they want to be able to do is
run for office and say, not only do I care
about public safety and I want to crack down on
drug dealers or child pornographers or d u I s
whatever it is. I can show my commitment by saying
I think everybody who commits that crime should get this
(08:11):
stiff punishment. The problem is they always write the penalty
for sort of the worst case scenario and don't contemplate
the fact that there's going to be some facts and
circumstances that might meet the technical definition of that crime,
but don't warrant that stiff punishment. I think it arose,
(08:31):
like all things, out of good faith, not malice. I
think people were well intentioned and believing that we needed
to get serious about crime. It's just turned out to
be a very destructive and ineffective tool. As Kevin is
someone involved in the legislative side of the legal system,
I asked him who he sees as the biggest advocates
for mandatory minimum prison sentences. Usually the most aggressive advocates
(08:58):
for mandatory minimums are prosecutors and their prosecutors associations and
unions that tend to lobby legislatures and are very powerful.
It gives them enormous leverage. It makes their job easier
when they can go into a plea negotiation and say,
if you don't plead guilty and give me everything I want,
I'm going to make sure you get fifteen or twenty
(09:20):
years in prison. If a prosecutor went to a defendant
and said, I want you to not only plead guilty,
but testify in exactly the way I want, or I'll
break your arm, no one would have a problem seeing
the ethical dilemma raised by that. But when a prosecutor
says do what I want or I'm gonna put you
in prison for twenty years, which is much more severe
(09:41):
than breaking someone's arm, we treat that as a normal
part of the process. So this negotiating technique by prosecutors,
that one where they tell people that if they don't
plead out that they will increase the charge to something
with a mandatory minimum. Well, that is what we call
the trial tax. This is one of the hidden costs
(10:03):
associated with going to trial. We'll cover this more in
detail later in this episode. Prosecutors say that these are
helpful because it allows them to coerce people into giving
up higher ups. The problem is they're usually used against
the higher ups in a way to go down. The
higher up will come in because they have all the
(10:24):
information and they can say, get me out from under
this mandatory minimum. I'll give up everybody below me. And
it's the poor sucker on the bottom who has no
information to give up who gets stuck with the mandatory minimum.
A defendant has to think, do I really want to
risk a trial? Because if I do and I'm found
guilty and there's a mandatory minimum attached, no matter what
(10:45):
the judge thinks, he or she will have no discretion
to fashion a sentence that fits me. They'll have to
go with that mandatory sentence. But we want judges to
have control over punishment again, so that it can be
tailored to you know, what really happened, and just some
arbitrary standard that was set by politicians who know nothing
(11:05):
about this defendant or this crime, but who wrote the
mandatory minimum maybe ten twenty years ago and couldn't have
foreseen this particular instance. As Kevin mentioned, the most vocal
advocates in favor of mandatory minimum sentences are prosecutors. As
a former prosecutor myself, I have seen that these laws
can do more harm than good. But I wanted to
(11:28):
see if there were benefits to these laws that I
might be overlooking. So I talked with my friend and colleague,
Assistant district Attorney Jesse Evans, to see what he thought
about them as a prosecutor and how he uses them
when he is charging defendants. So the debate about mandatory
minimums is not a new one. It's been going on
for a long long time within the criminal justice system.
(11:51):
On the positive side of things, particularly when you have
a very serious offense and we want to make sure
that that's dealt with appropriately. We don't want to get
to the situation sation where say a person doesn't accept
responsibility for what they did, they insist on having a trial,
and suddenly they're able to get a slap on the
wrist for their armed robbery or serious violent felony, or
even drug trafficking or something like that. That's kind of
(12:13):
the thought behind why mandatory minimums are good. It not
only gives some certainty to us within the criminal justice
system of what we know the outcome is going to be,
It also quite frankly, gives us some leverage, for lack
of a better term, to be able to talk to
a criminal defendant through his attorney from the prosecutor's perspective
and say, look, we need to talk about whether we
can negotiate this case, because if not, we know what
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the consequences are going to be. This is what you're
gonna be facing based on the mandatory sendency. That's the
one side of the coin. The other side of the coin,
I think is a correct side that mandatory minimums are
not always good. We within the criminal justice system might
be surprised to hear this, especially coming from seasoned prosecutor
are not always in favor of them. There are oftentimes
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where a mandatory minimum sentence actually frustrates our ability to
get k is resolved rather than fosters our ability to
get cases resolved. Those consequences that are mandated by this
mandatory minimum are sort of inflicted on the case, for
lack of a better term, and because of that, we're
not able to get to a point where we can
resolve it. The push the modern day move within the
(13:18):
criminal justice system, which I feel is actually a very
good one, is the idea that we're going to give
more discretion to the stakeholders, to the court, to the prosecutors,
to the defense attorneys, and ultimately to victims of crimes
as well, because now everybody gets to say in it.
I've heard that said before that the prosecutors control what
the charges are. I'll step back from that a little
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bit and say this, the facts really to dictate what
the charges are going to be. And ultimately, if what
I bring a case to court where the facts don't
bear out, for example, on arm robbery versus a robbery,
the state's gonna get dinged on that because we have
missed an element of proof that factually is required before
we can bring those charges. That said, I understand why
(14:00):
is that judges might express some frustration about their hands
being tied when they have mandatory minimums, and I think
that's why there's been a real push that's certainly been
the case in Georgia to allow for a downward departure
or downward deviation under some circumstances. Say you have the
arm robber who's on a spree goes in guns a
blazing into a bank. That's a very serious offense. Tenure
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mandatory minimum may not be enough for that guy. Now,
say you have that scenario where you have a person
that walks in and using their coat and their finger
to act like they have a gun and they take
a bag of chips because the guy is homeless, that's
an arm robbery to both of them are facing the
same mandatory minimum. But I think we would all agree
that those are two different factual scenarios. The change in
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the law would basically allow us now to say, when
this prosecutor the defense, with the approval of the judge,
says we're gonna let them plead an arm robbery, but
we want to go less than that ten years, there's
a mechanism to be able to do so, and that's
not a bad thing. Otherwise, what we had his the
wordical we've been forced to do is to come up
with sort of a legal fiction. Well, we know it's
an armed robbery, Mr. Guy who comes and using your
(15:06):
finger as a gun. But at the same time, because
we wanted apart from the mandatory minium, we're going to
call it something that it's not like an aggravator assault
or in a robbery or something like that. The problem
with that is when you get a conviction of a
different offense, it could very well impact recitivious punishment down
the road if the person commits another crime, because now
they don't fall under that statute neatly where we can
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insist on the higher punishment. There's another important factor that
maybe we haven't yet talked about, which is a component
of and that's the victim and victim's rights. I understand
why from a legislative perspective, when that victim tells the
police officer, hey, this guy put a gun in my
face and took something from me, that armed robbery needs
(15:48):
to be dealt with extremely seriously. It's certainly understandable from
my perspective as to why a legislature might want to
say there needs to be be a mandatory minimum when that happens.
Because if it's your loved one, your wife, you're a
kid that suffered and been victimized from that crime. Starting
with the proposition that we're gonna treat that more seriously
than where somebody just merely punched a battery makes sense
(16:09):
to me. After hearing from Jesse and Kevin, I also
(16:30):
wanted to get a judge's perspective on mandatory minimum sentences
and how these laws may affect the judge's work when
it comes to sentencing, as well as the overseeing of
criminal trials. We heard from Federal District Judge Jed Rakoff
back in episode one regarding eyewitness testimony, but Judge Rakoff
is perhaps best known for his work studying and speaking
(16:53):
out about mandatory minimum sentencing. I am a deep believer
that just sense requires a judge to get deeply into
the facts, the facts of the crime, the facts of
the criminal, the facts of the victims, and to do
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the very difficult and often agonizing, but careful job of
figuring out what sends makes sense. Mandatory minimums, of course,
prevent you from doing that whatsoever. But even the sentencing guidelines,
which in the federal system are no longer mandatory, they
emphasize certain factors hugely an excess of other factors. I
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would go back to the system that it persisted in
this nation for nearly two hundred years, which was we
leave it to the good sense of the judge, and
we encourage our judges to do a lot of work
before they impose sense. People will say to me, but
why do you trust judges? And I say, I don't
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trust anyone. I'd rather have a good system, though, and
I think the best system is one of checks and balances.
The legislature gives wide discretion for what charges you can
bring and what the punishments can be. The prosecutor brings
the charges after looking at the facts of a case.
The judge then issues a sentence that makes sense, and
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then that sentence can be appealed if it's too severe
or too lenient, and an appeals court can get a
whack at it. But it's like an editing process. The
more eyes that look at it, the more likely you
are to get things right. This is Kevin Ring. I've
been to prison myself. I was a federal lobbyist in
our firm, came under scrutiny. I cooperated for two years.
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The government ultimately wanted me to say things that I
thought were untruthful and to incriminate others in a way
that I thought was untruthful. So we just had a
disagreement about it. And when they try to get me
to plead guilty and cooperate, they sat me down for
what's called a reverse proffer. Usually proffers when a defendant
comes in and says, here's everything I know is that
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useful to you reverse proffers. When the government says, here's
everything we have against you, think about that carefully before
you make your plea decision. Well, with me, they brought
me in and they said, after two years of cooperating
and other evidence gathering, here's what we have against you.
If you plead and cooperate, will charge you with these things.
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And if you don't and you go to trial, will
charge you with all of these different crimes. I just
couldn't say what they wanted me to say. I would
have been lying on the stand against people that I
cared about. But what made it somewhat easier was the
idea that, unlike maybe some poor kid who's on the
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street corner and being threatened with a twenty year mandatory
minimum sentence, I knew that if I had my day
in court, that if a judge hurt all the facts
and circumstances, he or she would conclude is my judge
did at the end of two trials that I was
not who the prosecutor said I was. I didn't know
how it was going to end. I was very nervous,
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very worried because I had two young daughters. If I
had been facing a mandatory minimum. It would have made
the decision a hundred times tougher. I'd like to think
that I would have kept my integrity and pled according
to the truth, but it would have been much harder.
Prison is it's a necessary evil, but people forget how
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evil it is. And so even though I was in
you know, a low security facility, it was awful. The
punishment is being removed from society. I mean, I was
away from two young daughters for a year and a half.
I had never slept away from them for more than
two nights. Our sentences have gotten so long that when
we hear somebody say, oh, we got five years, that's
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not bad five years, think about how much happens in
five years. People graduate, people get married. We've lost track
of how long that is. That should be a last resort.
We have to have prison for some people who are
harming people and who are an ongoing harm. But as
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a group that values families and children and communities, we
just have to get back to the idea that it
should be a last resort, not a first option. The
Polk evidence suggests that the thing that is most likely
to ter somebody from committing another crime were committing a
crime at all is the risk of getting caught. They're
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not dissuaded by the severity of the punishment, so these
long sentences don't deter people. They don't need the extra
ten years. That's not doing society any benefit. Some people
will say, well, okay, but it's not hurting if they're
just locked up there at least not committing any crimes.
The problem with that is all of our budgets are finite,
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So if we're locking somebody up for ten years when
five would be an up, that cost of the extra
five years, which maybe thirty thousand a year for five years,
is probably the cost of another policeman on the street
who could be preventing crimes. Personally. With respect to how
I have seen these laws used, I think mandatory minimum
sentencing should be done away with quite frankly. Even in
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the cases where judges would prefer not to send someone
to prison or to give them perhaps a shorter prison sentences,
the judges hands are tied and they have no choice.
I think the far better system is the one where
judges are allowed to do what they are elected or
pointed to do, and that is to be judges. Judges
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can throw the book at someone if they really need it,
and judges can also be lenient where it is appropriate.
In other words, cookie cutter justice just doesn't work when
it comes to something is complicated in high stakes, as
criminal justice. I just can't think of a good argument
against specificity. Mandate. Hoary minimum prison sentences factor heavily in
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why people will flead guilty to things that they did
not do. They simply can't afford the risk of losing
a trial where they would be faced with a mandatory
minimum prison sentence, and oftentimes they will opt to plead
guilty to a lesser charge, even if they maintain their innocence,
just to avoid mandatory minimum sentencing. We've talked a lot
(23:25):
this season about how every single person in the justice
system has an absolute constitutional right to a fair trial.
But being entitled to something is one thing, Actually getting
it is another. To put it another way, having a
right to a fair trial does not mean that everyone
actually gets a fair trial. There is an enormous amount
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of risk associated with taking a criminal case to trial.
Some of those risks are obvious, like the risk of
extensive incarceration, and some of those risks, though, are hidden,
such as the lifetime stigma associated with merely being charged
with a crime. When I gamble, I never place a
bet that I cannot afford to lose. The decision to
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go to trial or to take a plea deal is
a lot like gambling, and because it is so risky,
innocent people will sometimes plead guilty and take a deal
rather than risking their lives by going to trial. One
of the less obvious risks of trial is what we
in the legal business called the trial tax. The trial
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tax refers to the extra jail time that sometimes gets
added to a sentence merely because a person has exercised
their constitutional right to a trial. There are many ways
that this trial tax and other costs can sneak into
a case once a person invokes their right to a trial.
As a retired judge and defense attorney, my friend Ray
(24:54):
Gary Jr. Has an absolute treasure trove of all kinds
of stories. Many of these are very entertaining stories, but
some are downright frightening. Many of raised stories highlight the
consequences of going to trial and the reasons that innocent
people might plead guilty. The main reason an innocent person
(25:17):
would plead guilty is because if they go to trial
and lose, they're gonna get an extremely long sentence. There's
some comfort into knowing what you're going to get before
you get there. If you have a plea bargain, you
know ahead of time what's going to happen when you
(25:38):
go to court. If you go to trial, if you win,
you made a great decision. If you go to trial
and you lose, you made a terrible decision, because you're
gonna get a lot more punishment. You know. Some people say, well,
I got wife and kids. I can't take a chance
I'm going to prison. I will lose our house. Sometimes
(25:59):
people plead guilty just to avoid the risk. So if
they offer you the right thing, like I had a
lady charge with molesting her own grandson that was innocent.
But when you alleged chow molestation against anybody, the police
department and the prosecutors and the judges, they don't want
(26:23):
to back off them something like that. So the best
offer I had before trial was ten years in prison
in ten years on probation. After the first witness testified,
which was the child victim. From cross examination, he admitted
that he made the whole thing up because his mother
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didn't like her mother in law, and so the prosecutor
asked for a recess to talk to me, and they
brow beat me into pleading to a misdemeanor with no
jail tim And to this day I regret it. I
should have I shouldn't have let him brow beat me
(27:07):
into plead and guilty to anything. But but you know,
when you go from your best offer is ten years
in prison followed by ten years on probation be a
registered sex offender, down to misdemeanor probation, that's a pretty
far drop. Even though at that point it was so
obvious that the client was innocent, the prosecutors still wanted
(27:30):
to squeeze out a little bit. Now that I've had
more time to think about it, that makes me hold
that prosecutor in lower esteem. If he thought the person
was guilty, he shouldn't have backed off. If he thought
they were innocent, he should have backed off all the way.
Because I've worked both sides of a courtroom, I know
firsthand how motivated prosecutors and the judges can be to
(27:53):
keep their active case loads as low as possible. For
this reason, the system itself is bill in a way
that discourages trials and encourages guilty please. The system would
come to a grinding halt but for the fact that
the overwhelming majority of cases are resolved by some sort
of negotiated plea deal. For example, prosecutors have the power
(28:18):
to charge much more serious crimes when someone decides not
to plead guilty, and that's a big piece of the
risk defendants have to consider before deciding to take a
case to trial. But the thing about the trial tax,
it's not a local or even a state level phenomenon.
It's happening everywhere throughout the United States. This is defense
(28:43):
attorney Michelle Tiegel, And what I think happens every day
in this country is that people are overcharged and that
they plead and sort of I hate to say, split
the baby, but they have to make a decision about
whether there willing to risk more or take the plea bargain,
because the trial is always a risk for a person
(29:05):
in their freedom, and the more serious the charge, the
more of a risk it is. Do I think innocent
people plead guilty all the time. I think it happens,
but I think what happens even more they maybe have
some responsibility for something, but they are being overcharged, and
I saw that at all levels in the criminal system.
(29:29):
I don't know if you use this term in Georgia,
but in Texas they sometimes call it a shotgun charge. Basically,
a prosecutor dumps everything but the kitchen sink hoping that
something will stick. That's an unfair way to do it,
but it's a way that prosecutors do it who are
more focused, I think, on winning than on doing justice,
(29:49):
because they walk away with a win in their you know,
quiver or whatever instead of just getting the right result
and serving the community. And that's a real that's a
real unfortunate thing. I think it's a real problem in
non violent offenses. I think, I mean, just from an
(30:09):
opinion perspective, we're overcharging people, but sometimes I think we're
also using the ability that prosecutors have in a lot
of states of enhancements, different ways that they can make
a crime more serious based on a person's priors, or
the amount of drugs or other factors, or in the
federal system, what we call relevant conduct, which is what
(30:32):
I would say in LA terms, is all this other
stuff that can make it a lot worse. Those factors,
I think can really result in a person going away
for something that in essence they are innocent of because
that's really not what they're guilty of, or it's not
it's not right for their case. Maybe they're not innocent
(30:52):
of everything, are any of us. Michelle brings up a
good point that we've addressed before, but I want to
(31:14):
emphasize again the stories we've heard about wrongful conviction have
shown fully innocent men get picked up by the police
and tossed around by the justice system, and still none
of them pled guilty. While I've seen and worked on
cases where fully innocent people plead guilty because the risks
are just too great, what happens more often, in my
(31:37):
experience is people who are guilty in some way get
punished for additional crimes that they are not guilty of.
Any given criminal incident can have a variety of different
pieces that carry different charges. For example, the use of
a weapon or someone's mental state during an incident can
affect charges and punishment. In order to help you're a conviction,
(32:01):
some prosecutors will charge a defendant with anything that might
possibly fit. In that way, people may be guilty of
some of the charges but innocent on others. Here's the
story of a case where a judge hit one of
Ray Gary's clients extremely hard with a trial tax. This
case happened many years ago, and I think you might
(32:23):
recognize the prosecutor. I took on a client who was
charged with armed robbery. My client and three other young
men robbed a pet smart So they went out and
they bought b B guns. But the BB guns looked
real You couldn't tell that they were not real guns.
(32:46):
Two of the boys go in and had inside a doghouse.
So after the door was locked and the store was closed,
the two armed robbers come out of the doghouse and
round ever body up and they go open the door
and let the other two robbers in. The victims are
scared to death. Some of the people in there recognized,
(33:10):
you know, one of the perpetrators, so they called the
police and said so and so and three other guys
just robbed us. So one guy pleads guilty right away,
gets twenty to do ten, which was Phil Holloway's best offer.
And really that was a good offer because the minimum
(33:32):
sentence for armor robbery was twenty to do ten. I
think so Phil had a pretty strong case. But my client,
strangely would not plead guilty. He was like one of
these ostriches that stick their head in the sand. And
I tried to explain, I agree that it's too much.
(33:53):
I agree that it's not fair, but you've got to
choose between bad or worse, and if you go to trial,
it's gonna be a lot worse. But his mother had
a vision from God that he was going to be acquitted,
and so we started the trial. My clients convicted on
(34:17):
four counts of arms robbery. My client ends up getting
forty years in prison without parole. In a matter of fact,
that was about fifteen or sixteen years ago. And so
all the other three who took the deal there, they've
been out for four or five years. My guy is
still in here from him every now and then, but
(34:39):
really there's nobody that can let him out unless the
judge was to change your mind. That case happened back
when I was working at the District Attorney's office as
an assistant district attorney. While I was not involved with
the sentencing in the case, it was up to me
to determine what charges to bring, and as Ray said,
(34:59):
I offered this client the legal mandatory minimum ten years
in prison. I wanted to bring back Jesse Evans to
once more get a current prosecutor's perspective. Jesse has told
us in the past that the charges that he brings
are always determined by the facts of the case as
he believes them to be. That is exactly the way
(35:20):
that it is supposed to work, But sometimes some prosecutors
have different motivations, particularly the motivation to get cases pled
out and moved quickly. The trial tax can be a
very powerful tool that some prosecutors use to make that happen.
The reason that we have plea negotiations in large part
(35:41):
is because of the idea that we want to have
some certainty from all perspectives, from the victims perspective, from
the prosecutor's perspective, from the defendant's perspective. There's no guarantee
when you insist on a trial of what those and
injur results are going to be, except for maybe this.
The net outcome is no longer in your hands once
that jury is selected, and once that trial starts a
(36:03):
lot of the consequences for what happens is no longer
going to be in the criminal defendants perspective. It's not
going to be in the prosecution's perspective. Necessarily, it's going
to be in the perspective of twelve jurors and ultimately
the judge it's going to be responsible for sentencing thereafter.
Fear of the unknown is an important factor for how
we resolved cases within the criminal justice system. The fact
(36:25):
of the matter is, just to take cop counting by example,
we've got ten superior court judges. Let's assume that each
judge has got one trial week per month. Start doing
the math there, They've got two hundred cases on their
trial calendar at any given point, hundred fifty two cases.
We cannot try all of those cases within a given year.
If we don't have the ability to resolve those, the
(36:45):
criminal justice system is going to fall apart. And we
all recognize that from prosecutor's perspective, from defense attorney's perspective,
and from judges perspective. But understand this too. Look, the
vast majority of cases resolving please because the person's caught
and they did it, and they know it. And really
what we're talking about is what's the best results. So
to say, for example, you know those hundreds, if not
(37:08):
thousands of cases where the police have arrested somebody and
have got heroin in their pocket. We're not going to
be trying cases of the person caught with heroin in
their pocket, where the defense is going to be these
are not my pants, right. That doesn't make sense the
cases that tend to go to trial with more serious ones.
When you're charged with murder, the consequences are so great
that the chances of being able to resolve that case
(37:28):
are diminished because of the nature of the charges. I
don't disagree that there are probably instances where people are
willing to enter a pola not because they believe they
are in fact guilty of it, but because they believe
the consequences are too great. I would say that those,
in my opinion, are probably in the minority and not
the majority. I've never been charged with the crimes that
I can say, but I know I'm not going to
(37:50):
be able to come to court and say that I'm
guilty of something that I didn't do. I'm gonna insist
on it on my trial. A judge, there's really nothing
but a government bureaucrat. We have this perception of what
a judge is, and you know they're perched up on
(38:10):
a high platform in the courtroom and they're wearing that robe.
But if you really think about it, they're actually a
government bureaucrat, just like the clerk of the court that
sits in front of them. A government workers always going
to take the short way, so you know, the clerk
of the court deals out the cases like a card
(38:31):
dealer dealing out cards. Every judge in the same circuit
gets the same amount of cases that's saying to them,
and so you've got to finish those cases. And it
don't look good if you have a big backlog and
there's not enough time to try all the cases. One
judge told me the most criminal jury trails he could
(38:52):
have in a year is thirteen because they planned their
whole year out and if something falls through, that takes
you down to twelve to ten. I talked to that
same judge a few years later, and he only had
four criminal jury trials a few years later. So there's
not enough time. So I say, I got a client
(39:14):
that's charged with burglary. If we have a trial, I'm
gonna take about four full days of the court's time.
If I played guilty to a plea bargain, I'm gonna
take about fifteen minutes of the court time. Who wouldn't
(39:35):
want to go the fifteen minute route as opposed to
the four day You know, everybody's motivated to try to
do a plea bargain, and that's why in most cases
our plea bargains in very few cases are trials. Now,
the way they get you to do that, the word
gets out that there's a lot more punishment. That reminds
(40:02):
me of of a story about a judge wanting to
make it short. And I had a client who he
wasn't innocent necessarily, he was more in the gray area.
We wanted to trowl. So we got the phone call
be here Tuesday afternoon at one thirty to start to trial.
(40:25):
So the judge was in his chambers, which was right
next to where I was sitting in so I can
hear the judge and what I hear as him saying,
played golf today. Yeah, yeah, I can make it. I'm
n percent here, I can make it. Yeah, plan on
me being there. So I'm thinking, hey, if I go
(40:48):
to trial, he's not gonna make that tea time. He's motivated.
This is good. So the judge buzzes out to the
administrative assistant send both lawyer us back here, and so
we sit down and he says, can't you boys work
this out? I said, well, I think so jah, And
(41:09):
the prosecutor said, well, I don't know. I don't know.
I'm under pressure from higher ups. The judge said, what
are you looking for a raid? I said, I'm looking
for one year to serve in you know, about five
years on probation. As the prosecutor, what you offer him?
He said, well, I offered him three years to serve
(41:32):
and two years on probation. Judge said, can't you come
down to one year? He said, I really just don't
think I can. The judge looked at me and he said,
why don't you get your client to plead guilty without
having a plea bargain, which ordinarily would be playing Russian roulette.
(41:52):
If your client doesn't like what the sentence is, I'll
let you withdraw it and proceed with a trial. Which
was the same thing as him telling me I'm going
to give you exactly what you said you wanted. So
I said, yeah, yeah, we'll we'll plead guilty with no
deal on the table. So we played guilty, and that's
exactly what happened and the judge went to play golf.
(42:14):
It's just a bunch of unique circumstances that resulted in
a me not having to try the case, be my
client not risking going to prison longer. And it actually
took the pressure off the d A too, because it
wasn't his fault. You know, he could go back and say, hey,
I can't stop him from pleading guilty. Judge didn't do
(42:35):
what I wanted him to, so the d A was
off the hook. The DA didn't have to try the case.
I was happy, my client was happy, the judge was happy.
This wasn't something the judge told me. This was just
something I overheard. Before we finish up this episode, I
wanted to play for you. One more point that defense
(42:56):
attorney and friend of the show, Ashley Merchant, brought up.
There's another consequence to mandatory minimum sentences that she sees
in her work that might not be immediately apparent. I
do a lot of work with prison inmates them and
I think a lot of people don't think about this.
When you have a mandatory minimum where there's no parole,
(43:17):
and you take away hope from a prison in made
of getting out, you create a very, very scary prison system.
The behavioral incentive for inmates is parole. If you sentence
people to twenty five years to life without parole, they
are going to go into prison and commit more crimes
because they're never going to get out and they have
(43:39):
no hope of every getting out and they know they're
never gonna get out. What are you gonna do to them?
Give them more time. So I've had clients who told
me about They're like, if I'm never gonna get out,
I'm going to sell drugs in prison and send the
money to my family because that's the only way i
can make money for my family, and I'm never getting out.
I think you're seeing inmates that are willing to take
chances on crimes because it can't get me where For them,
(44:01):
you know, it becomes the Department of punishment, not the
Department of correct since you're not trying to correct behavior
if you're locking someone up and never letting them out
because of a mandatory minimum. There's so much more to
cover on the risks associated with going to trial and
the hidden costs also associated with going to trial. So
we'll continue this topic next week. Plus there's a legal
(44:21):
tool we haven't yet discussed that allows people to take
advantage of a plea deal without ever saying that they
are guilty. One of the things we found out while
making this show is that tool, which I use for
a lot of my cases, is more controversial than I thought.
(44:42):
Next time on Sworn, the blame in part is on
all of us, because this would not be occurring or
not occurring in the extreme way that we're describing if
there were more judges, more resources for criminal defense lawyers,
(45:04):
especially for indigence or in depth enquiries, lower penalties. If
you took the person in the street and showed them
what you just described, I think most people would say,
oh my gosh, I never thought of worked like that.
I mean, that's like what they used to do in
Soviet Russia. That stuff that's not justice, but they have
(45:26):
no idea. Sworn is a production of Tenderfoot TV and
I Heart Radio. Our lead producer is Christina Dana. Executive
producers are Payne Lindsay and Donald Albright for Tenderfoot TV,
Matt Frederick and Alex Williams for I Heart Radio, and
(45:48):
myself Philip Holloway. Additional production by Trevor Young Mason Lindsay,
Mike Rooney, Jamie Albright and Halle Beadal. Original music and
sound designed by Making Up and Vanity Set. Our theme
song is Blood in the Water by Layup. Show art
and design is by Trevor Eisler, editing by Christina Dana,
(46:10):
Mixing and mastering by Mike Rooney and Cooper Skinner. Special
thanks to the team at I Heart Radio from u
T a or In Rosenbaund and Grace Royer, Ryan Nord
and Matthew Papa from the Nord Group, back Media and
Marketing and Station sixteen. I'd also like to extend a
(46:30):
very personal and special thanks to all of our contributors
and guests who have helped to make all of these
episodes possible. You can find Sworn on Facebook, Twitter, and
Instagram at Sworn podcast and follow me your host, Philip
Holloway on Twitter at phil Holloway e s Q. Our
website is sworn podcast dot com, and you can check
(46:54):
out other Tenderfoot TV podcasts at www dot tenderfoot dot tv.
If you have questions or comments, you can email us
at Sworn at Tenderfoot dot tv or leave us a
voicemail at four zero four four one zero zero four
f one. As always, thanks for listening. Do you know
(47:19):
what a podcast is? Rae Well, my impression of it,
although I've never heard one, is that it's uh like
a radio show, but instead of getting it on the radio,
you get it off the computer, right, I mean, I'm
from the old school, so I've never actually heard a podcast,
but now that I'm involved in one, I'm intend to,
(47:39):
you know, listen to one, especially your show, if I
can find it.
If you will place your left hand on the Bible
and raise your right hand, and please repeat after me,
and I do solemnly swear, then titled action find the
defendant guilty of the time. It makes no sense, it
doesn't fit. If it doesn't fit, you must aquit. We
all took the same of the office. We're all bound
(00:23):
by that common commitment to support and defend the Constitution,
to bear true faith in allegiance, to say that you
faithfully discharge the duties of our office. Do you solemnly
swear or affirm that the testimony you're about to give
will be the truth, the whole truth, and nothing but
the truth. From Tenderfoot TV and I Heart Radio, this
is sworn. I'm your host, Philip Holloway. Usually when I've
(00:51):
represented somebody that I believe was fully innocent, they were
normally found not guilty. But the very last trial I
had were three defendants who were charged with drug trafficking,
and one of them I knew was innocent. It wasn't
(01:13):
my client. My client without telling me he was guilty
or not guilty. He told me that the other guys
was innocent and that he felt terrible about it. He
had just asked him to go to lunch, and they
stopped by the drug house on the way to lunch.
So then the third guy's lawyer, he said, you know,
(01:33):
you know that defendant number two is innocent, don't you?
His client had told him. My client had told me.
Two family members who were closer to defend us one
and three told me that two was innocent. And plus,
having heard everything that happened, is not a doubt. My man,
the guy was innocent. But as bad luck would have it,
(01:55):
all three were convicted, and due to mandatory animum sentencing,
they all got twenty five years. And so at the
sentencing that J S YEA all ready for sentencing, I said, yeah,
but my client wants to be sentenced first. The only
thing my client said was that so and so was innocent.
(02:16):
He didn't ask for a lenient senate. My client didn't
ask for anything for himself. He just spoke on behalf
of the defendant number two. But you know, the jury
had just found him guilty, so they all three he
got twenty five years. That was Ray Geary, a retired
(02:43):
judge and defense attorney. Ray helped inspire me to enter
private practice nearly two decades ago. And taught me a
great many things that I now know about running a
law practice. That story about Ray's last case features heavily
the use of mand tory minimum sentencing, the topic of
this episode. A mandatory minimum sentence is an amount of
(03:06):
prison time that someone is required by law to serve
for a particular crime. These laws are enacted by legislatures,
and they make the legislatures rather than judges, responsible for
sentencing in a given case. There is a lot of
debate about mandatory minimum prison sentencing in the United States
right now, and there is also a push for legislative
(03:29):
reform that we see taking place around the US involving
mandatory minimum sentencing. The first person we spoke to about
this was Kevin Ring. My name is Kevin Ring, and
I currently serve as president of FAN formerly Families Against
Mandatory Minimums. Fam is a national criminal justice reform organization
(03:52):
that's been around since Dedicated to the idea not controversial.
We think that the punishment should fit the crime, that
people should be sentences individuals for whatever crimes they commit,
and that judges should have the authority to passion sentences
that fit each crime. Usually Congress or a state legislature
(04:14):
will say for a certain crime, anybody who violates it
can get up to five years or up to ten
years in prison. A mandatory minimum will say this person
gets up to ten years, but no less than five years,
so they set a floor under which a judge can't
go even if they think the facts and circumstances of
(04:35):
the case warranted. In the federal system, this is usually
done with drugs. If you traffic five grams of math
and fetamine, you get a five year mandatory minimum. That
means it doesn't matter if you were the kingpin, the
logo and the total pole. The five gram trigger requires
a five year mandatory minimum prison sentence. So it's different
(04:57):
in other sentences that don't carry these man tory penalties
in that a judge loses discretion and once you're convictive
of crime, the punishment is automatic. I was a Capitol
Hill staffer in the early nineties. I was just like
everybody else, twentysomething year old who knew nothing but thought
(05:18):
I knew everything. I was a Republican conservative in my
ideology matched that of the leaders at the time. Crime
is out of control in the way to solve it
is to throw the book at people. There weren't a
lot of studies about mandatory minimums at the time because
they had just come back into vogue in the mid eighties.
(05:42):
So we knew the prison population was rising, but crime
was falling, and so that did not dissuade us from
thinking that this was a good answer. It was my
turn to write a bill dealing with methamphetamine, which was
now becoming a very aggressive drug across the country. I said, well,
here's the answer. Then we'll just make the penalties for
methymphetamine the same as they were for crack. We didn't
(06:06):
have any hearings, We didn't bring anybody in and say, well,
what's going to be the real world impact of this.
What's it going to do to our incarceration rate? If
we spend more on prisons for even low level of enders,
are we gonna have fewer police and prosecutors? Is this
the best use of our anti crime resources. There was
no study involved at all. We just knew it would
(06:27):
be politically popular to say meth is dangerous and scary,
so let's just ratchet up the penalties. I was part
of that process. I helped draft that bill. It passed
through Congress and I think it did a lot of damage.
It tied judges hands now in a new area with methamphetamine,
just as it was in all these other drugs. In
(06:48):
some ways, I've switched sides, but I can't even say
that my position before was well informed. I was just
somebody who believed the tough on crime line that if
there's a problem, the way to get rid of it
is to punished the heck out of it. Mandatory sentences
have been around since the beginning of the country. It
(07:09):
tends to track whatever the crime to juror was. The
first ones were like piracy. When Robert F. Kennedy is
murdered after the California primary, the next day they passed
one about guns, a couple of things happened. There were
real responses to crime. Sometimes it was a moral panic.
Sometimes it was a legitimate fear that crime was out
(07:30):
of control, and they felt obligated to do something to
look like they were being responsive. There was a period
in the seventies where lawmakers lost faith and judges. They
saw too many judges giving people what they thought were
slaps on the wrist for serious offenses, and they thought
they couldn't be trusted anymore. Legislators started taking that power away,
(07:50):
and then they thought it was politically popular to do.
So what they want to be able to do is
run for office and say, not only do I care
about public safety and I want to crack down on
drug dealers or child pornographers or d u I s
whatever it is. I can show my commitment by saying
I think everybody who commits that crime should get this
(08:11):
stiff punishment. The problem is they always write the penalty
for sort of the worst case scenario and don't contemplate
the fact that there's going to be some facts and
circumstances that might meet the technical definition of that crime,
but don't warrant that stiff punishment. I think it arose,
(08:31):
like all things, out of good faith, not malice. I
think people were well intentioned and believing that we needed
to get serious about crime. It's just turned out to
be a very destructive and ineffective tool. As Kevin is
someone involved in the legislative side of the legal system,
I asked him who he sees as the biggest advocates
for mandatory minimum prison sentences. Usually the most aggressive advocates
(08:58):
for mandatory minimums are prosecutors and their prosecutors associations and
unions that tend to lobby legislatures and are very powerful.
It gives them enormous leverage. It makes their job easier
when they can go into a plea negotiation and say,
if you don't plead guilty and give me everything I want,
I'm going to make sure you get fifteen or twenty
(09:20):
years in prison. If a prosecutor went to a defendant
and said, I want you to not only plead guilty,
but testify in exactly the way I want, or I'll
break your arm, no one would have a problem seeing
the ethical dilemma raised by that. But when a prosecutor
says do what I want or I'm gonna put you
in prison for twenty years, which is much more severe
(09:41):
than breaking someone's arm, we treat that as a normal
part of the process. So this negotiating technique by prosecutors,
that one where they tell people that if they don't
plead out that they will increase the charge to something
with a mandatory minimum. Well, that is what we call
the trial tax. This is one of the hidden costs
(10:03):
associated with going to trial. We'll cover this more in
detail later in this episode. Prosecutors say that these are
helpful because it allows them to coerce people into giving
up higher ups. The problem is they're usually used against
the higher ups in a way to go down. The
higher up will come in because they have all the
(10:24):
information and they can say, get me out from under
this mandatory minimum. I'll give up everybody below me. And
it's the poor sucker on the bottom who has no
information to give up who gets stuck with the mandatory minimum.
A defendant has to think, do I really want to
risk a trial? Because if I do and I'm found
guilty and there's a mandatory minimum attached, no matter what
(10:45):
the judge thinks, he or she will have no discretion
to fashion a sentence that fits me. They'll have to
go with that mandatory sentence. But we want judges to
have control over punishment again, so that it can be
tailored to you know, what really happened, and just some
arbitrary standard that was set by politicians who know nothing
(11:05):
about this defendant or this crime, but who wrote the
mandatory minimum maybe ten twenty years ago and couldn't have
foreseen this particular instance. As Kevin mentioned, the most vocal
advocates in favor of mandatory minimum sentences are prosecutors. As
a former prosecutor myself, I have seen that these laws
can do more harm than good. But I wanted to
(11:28):
see if there were benefits to these laws that I
might be overlooking. So I talked with my friend and colleague,
Assistant district Attorney Jesse Evans, to see what he thought
about them as a prosecutor and how he uses them
when he is charging defendants. So the debate about mandatory
minimums is not a new one. It's been going on
for a long long time within the criminal justice system.
(11:51):
On the positive side of things, particularly when you have
a very serious offense and we want to make sure
that that's dealt with appropriately. We don't want to get
to the situation sation where say a person doesn't accept
responsibility for what they did, they insist on having a trial,
and suddenly they're able to get a slap on the
wrist for their armed robbery or serious violent felony, or
even drug trafficking or something like that. That's kind of
(12:13):
the thought behind why mandatory minimums are good. It not
only gives some certainty to us within the criminal justice
system of what we know the outcome is going to be,
It also quite frankly, gives us some leverage, for lack
of a better term, to be able to talk to
a criminal defendant through his attorney from the prosecutor's perspective
and say, look, we need to talk about whether we
can negotiate this case, because if not, we know what
(12:35):
the consequences are going to be. This is what you're
gonna be facing based on the mandatory sendency. That's the
one side of the coin. The other side of the coin,
I think is a correct side that mandatory minimums are
not always good. We within the criminal justice system might
be surprised to hear this, especially coming from seasoned prosecutor
are not always in favor of them. There are oftentimes
(12:56):
where a mandatory minimum sentence actually frustrates our ability to
get k is resolved rather than fosters our ability to
get cases resolved. Those consequences that are mandated by this
mandatory minimum are sort of inflicted on the case, for
lack of a better term, and because of that, we're
not able to get to a point where we can
resolve it. The push the modern day move within the
(13:18):
criminal justice system, which I feel is actually a very
good one, is the idea that we're going to give
more discretion to the stakeholders, to the court, to the prosecutors,
to the defense attorneys, and ultimately to victims of crimes
as well, because now everybody gets to say in it.
I've heard that said before that the prosecutors control what
the charges are. I'll step back from that a little
(13:40):
bit and say this, the facts really to dictate what
the charges are going to be. And ultimately, if what
I bring a case to court where the facts don't
bear out, for example, on arm robbery versus a robbery,
the state's gonna get dinged on that because we have
missed an element of proof that factually is required before
we can bring those charges. That said, I understand why
(14:00):
is that judges might express some frustration about their hands
being tied when they have mandatory minimums, and I think
that's why there's been a real push that's certainly been
the case in Georgia to allow for a downward departure
or downward deviation under some circumstances. Say you have the
arm robber who's on a spree goes in guns a
blazing into a bank. That's a very serious offense. Tenure
(14:22):
mandatory minimum may not be enough for that guy. Now,
say you have that scenario where you have a person
that walks in and using their coat and their finger
to act like they have a gun and they take
a bag of chips because the guy is homeless, that's
an arm robbery to both of them are facing the
same mandatory minimum. But I think we would all agree
that those are two different factual scenarios. The change in
(14:44):
the law would basically allow us now to say, when
this prosecutor the defense, with the approval of the judge,
says we're gonna let them plead an arm robbery, but
we want to go less than that ten years, there's
a mechanism to be able to do so, and that's
not a bad thing. Otherwise, what we had his the
wordical we've been forced to do is to come up
with sort of a legal fiction. Well, we know it's
an armed robbery, Mr. Guy who comes and using your
(15:06):
finger as a gun. But at the same time, because
we wanted apart from the mandatory minium, we're going to
call it something that it's not like an aggravator assault
or in a robbery or something like that. The problem
with that is when you get a conviction of a
different offense, it could very well impact recitivious punishment down
the road if the person commits another crime, because now
they don't fall under that statute neatly where we can
(15:27):
insist on the higher punishment. There's another important factor that
maybe we haven't yet talked about, which is a component
of and that's the victim and victim's rights. I understand
why from a legislative perspective, when that victim tells the
police officer, hey, this guy put a gun in my
face and took something from me, that armed robbery needs
(15:48):
to be dealt with extremely seriously. It's certainly understandable from
my perspective as to why a legislature might want to
say there needs to be be a mandatory minimum when that happens.
Because if it's your loved one, your wife, you're a
kid that suffered and been victimized from that crime. Starting
with the proposition that we're gonna treat that more seriously
than where somebody just merely punched a battery makes sense
(16:09):
to me. After hearing from Jesse and Kevin, I also
(16:30):
wanted to get a judge's perspective on mandatory minimum sentences
and how these laws may affect the judge's work when
it comes to sentencing, as well as the overseeing of
criminal trials. We heard from Federal District Judge Jed Rakoff
back in episode one regarding eyewitness testimony, but Judge Rakoff
is perhaps best known for his work studying and speaking
(16:53):
out about mandatory minimum sentencing. I am a deep believer
that just sense requires a judge to get deeply into
the facts, the facts of the crime, the facts of
the criminal, the facts of the victims, and to do
(17:13):
the very difficult and often agonizing, but careful job of
figuring out what sends makes sense. Mandatory minimums, of course,
prevent you from doing that whatsoever. But even the sentencing guidelines,
which in the federal system are no longer mandatory, they
emphasize certain factors hugely an excess of other factors. I
(17:40):
would go back to the system that it persisted in
this nation for nearly two hundred years, which was we
leave it to the good sense of the judge, and
we encourage our judges to do a lot of work
before they impose sense. People will say to me, but
why do you trust judges? And I say, I don't
(18:00):
trust anyone. I'd rather have a good system, though, and
I think the best system is one of checks and balances.
The legislature gives wide discretion for what charges you can
bring and what the punishments can be. The prosecutor brings
the charges after looking at the facts of a case.
The judge then issues a sentence that makes sense, and
(18:21):
then that sentence can be appealed if it's too severe
or too lenient, and an appeals court can get a
whack at it. But it's like an editing process. The
more eyes that look at it, the more likely you
are to get things right. This is Kevin Ring. I've
been to prison myself. I was a federal lobbyist in
our firm, came under scrutiny. I cooperated for two years.
(18:45):
The government ultimately wanted me to say things that I
thought were untruthful and to incriminate others in a way
that I thought was untruthful. So we just had a
disagreement about it. And when they try to get me
to plead guilty and cooperate, they sat me down for
what's called a reverse proffer. Usually proffers when a defendant
comes in and says, here's everything I know is that
(19:06):
useful to you reverse proffers. When the government says, here's
everything we have against you, think about that carefully before
you make your plea decision. Well, with me, they brought
me in and they said, after two years of cooperating
and other evidence gathering, here's what we have against you.
If you plead and cooperate, will charge you with these things.
(19:27):
And if you don't and you go to trial, will
charge you with all of these different crimes. I just
couldn't say what they wanted me to say. I would
have been lying on the stand against people that I
cared about. But what made it somewhat easier was the
idea that, unlike maybe some poor kid who's on the
(19:48):
street corner and being threatened with a twenty year mandatory
minimum sentence, I knew that if I had my day
in court, that if a judge hurt all the facts
and circumstances, he or she would conclude is my judge
did at the end of two trials that I was
not who the prosecutor said I was. I didn't know
how it was going to end. I was very nervous,
(20:09):
very worried because I had two young daughters. If I
had been facing a mandatory minimum. It would have made
the decision a hundred times tougher. I'd like to think
that I would have kept my integrity and pled according
to the truth, but it would have been much harder.
Prison is it's a necessary evil, but people forget how
(20:31):
evil it is. And so even though I was in
you know, a low security facility, it was awful. The
punishment is being removed from society. I mean, I was
away from two young daughters for a year and a half.
I had never slept away from them for more than
two nights. Our sentences have gotten so long that when
we hear somebody say, oh, we got five years, that's
(20:52):
not bad five years, think about how much happens in
five years. People graduate, people get married. We've lost track
of how long that is. That should be a last resort.
We have to have prison for some people who are
harming people and who are an ongoing harm. But as
(21:13):
a group that values families and children and communities, we
just have to get back to the idea that it
should be a last resort, not a first option. The
Polk evidence suggests that the thing that is most likely
to ter somebody from committing another crime were committing a
crime at all is the risk of getting caught. They're
(21:36):
not dissuaded by the severity of the punishment, so these
long sentences don't deter people. They don't need the extra
ten years. That's not doing society any benefit. Some people
will say, well, okay, but it's not hurting if they're
just locked up there at least not committing any crimes.
The problem with that is all of our budgets are finite,
(21:56):
So if we're locking somebody up for ten years when
five would be an up, that cost of the extra
five years, which maybe thirty thousand a year for five years,
is probably the cost of another policeman on the street
who could be preventing crimes. Personally. With respect to how
I have seen these laws used, I think mandatory minimum
sentencing should be done away with quite frankly. Even in
(22:20):
the cases where judges would prefer not to send someone
to prison or to give them perhaps a shorter prison sentences,
the judges hands are tied and they have no choice.
I think the far better system is the one where
judges are allowed to do what they are elected or
pointed to do, and that is to be judges. Judges
(22:40):
can throw the book at someone if they really need it,
and judges can also be lenient where it is appropriate.
In other words, cookie cutter justice just doesn't work when
it comes to something is complicated in high stakes, as
criminal justice. I just can't think of a good argument
against specificity. Mandate. Hoary minimum prison sentences factor heavily in
(23:03):
why people will flead guilty to things that they did
not do. They simply can't afford the risk of losing
a trial where they would be faced with a mandatory
minimum prison sentence, and oftentimes they will opt to plead
guilty to a lesser charge, even if they maintain their innocence,
just to avoid mandatory minimum sentencing. We've talked a lot
(23:25):
this season about how every single person in the justice
system has an absolute constitutional right to a fair trial.
But being entitled to something is one thing, Actually getting
it is another. To put it another way, having a
right to a fair trial does not mean that everyone
actually gets a fair trial. There is an enormous amount
(23:47):
of risk associated with taking a criminal case to trial.
Some of those risks are obvious, like the risk of
extensive incarceration, and some of those risks, though, are hidden,
such as the lifetime stigma associated with merely being charged
with a crime. When I gamble, I never place a
bet that I cannot afford to lose. The decision to
(24:11):
go to trial or to take a plea deal is
a lot like gambling, and because it is so risky,
innocent people will sometimes plead guilty and take a deal
rather than risking their lives by going to trial. One
of the less obvious risks of trial is what we
in the legal business called the trial tax. The trial
(24:31):
tax refers to the extra jail time that sometimes gets
added to a sentence merely because a person has exercised
their constitutional right to a trial. There are many ways
that this trial tax and other costs can sneak into
a case once a person invokes their right to a trial.
As a retired judge and defense attorney, my friend Ray
(24:54):
Gary Jr. Has an absolute treasure trove of all kinds
of stories. Many of these are very entertaining stories, but
some are downright frightening. Many of raised stories highlight the
consequences of going to trial and the reasons that innocent
people might plead guilty. The main reason an innocent person
(25:17):
would plead guilty is because if they go to trial
and lose, they're gonna get an extremely long sentence. There's
some comfort into knowing what you're going to get before
you get there. If you have a plea bargain, you
know ahead of time what's going to happen when you
(25:38):
go to court. If you go to trial, if you win,
you made a great decision. If you go to trial
and you lose, you made a terrible decision, because you're
gonna get a lot more punishment. You know. Some people say, well,
I got wife and kids. I can't take a chance
I'm going to prison. I will lose our house. Sometimes
(25:59):
people plead guilty just to avoid the risk. So if
they offer you the right thing, like I had a
lady charge with molesting her own grandson that was innocent.
But when you alleged chow molestation against anybody, the police
department and the prosecutors and the judges, they don't want
(26:23):
to back off them something like that. So the best
offer I had before trial was ten years in prison
in ten years on probation. After the first witness testified,
which was the child victim. From cross examination, he admitted
that he made the whole thing up because his mother
(26:46):
didn't like her mother in law, and so the prosecutor
asked for a recess to talk to me, and they
brow beat me into pleading to a misdemeanor with no
jail tim And to this day I regret it. I
should have I shouldn't have let him brow beat me
(27:07):
into plead and guilty to anything. But but you know,
when you go from your best offer is ten years
in prison followed by ten years on probation be a
registered sex offender, down to misdemeanor probation, that's a pretty
far drop. Even though at that point it was so
obvious that the client was innocent, the prosecutors still wanted
(27:30):
to squeeze out a little bit. Now that I've had
more time to think about it, that makes me hold
that prosecutor in lower esteem. If he thought the person
was guilty, he shouldn't have backed off. If he thought
they were innocent, he should have backed off all the way.
Because I've worked both sides of a courtroom, I know
firsthand how motivated prosecutors and the judges can be to
(27:53):
keep their active case loads as low as possible. For
this reason, the system itself is bill in a way
that discourages trials and encourages guilty please. The system would
come to a grinding halt but for the fact that
the overwhelming majority of cases are resolved by some sort
of negotiated plea deal. For example, prosecutors have the power
(28:18):
to charge much more serious crimes when someone decides not
to plead guilty, and that's a big piece of the
risk defendants have to consider before deciding to take a
case to trial. But the thing about the trial tax,
it's not a local or even a state level phenomenon.
It's happening everywhere throughout the United States. This is defense
(28:43):
attorney Michelle Tiegel, And what I think happens every day
in this country is that people are overcharged and that
they plead and sort of I hate to say, split
the baby, but they have to make a decision about
whether there willing to risk more or take the plea bargain,
because the trial is always a risk for a person
(29:05):
in their freedom, and the more serious the charge, the
more of a risk it is. Do I think innocent
people plead guilty all the time. I think it happens,
but I think what happens even more they maybe have
some responsibility for something, but they are being overcharged, and
I saw that at all levels in the criminal system.
(29:29):
I don't know if you use this term in Georgia,
but in Texas they sometimes call it a shotgun charge. Basically,
a prosecutor dumps everything but the kitchen sink hoping that
something will stick. That's an unfair way to do it,
but it's a way that prosecutors do it who are
more focused, I think, on winning than on doing justice,
(29:49):
because they walk away with a win in their you know,
quiver or whatever instead of just getting the right result
and serving the community. And that's a real that's a
real unfortunate thing. I think it's a real problem in
non violent offenses. I think, I mean, just from an
(30:09):
opinion perspective, we're overcharging people, but sometimes I think we're
also using the ability that prosecutors have in a lot
of states of enhancements, different ways that they can make
a crime more serious based on a person's priors, or
the amount of drugs or other factors, or in the
federal system, what we call relevant conduct, which is what
(30:32):
I would say in LA terms, is all this other
stuff that can make it a lot worse. Those factors,
I think can really result in a person going away
for something that in essence they are innocent of because
that's really not what they're guilty of, or it's not
it's not right for their case. Maybe they're not innocent
(30:52):
of everything, are any of us. Michelle brings up a
good point that we've addressed before, but I want to
(31:14):
emphasize again the stories we've heard about wrongful conviction have
shown fully innocent men get picked up by the police
and tossed around by the justice system, and still none
of them pled guilty. While I've seen and worked on
cases where fully innocent people plead guilty because the risks
are just too great, what happens more often, in my
(31:37):
experience is people who are guilty in some way get
punished for additional crimes that they are not guilty of.
Any given criminal incident can have a variety of different
pieces that carry different charges. For example, the use of
a weapon or someone's mental state during an incident can
affect charges and punishment. In order to help you're a conviction,
(32:01):
some prosecutors will charge a defendant with anything that might
possibly fit. In that way, people may be guilty of
some of the charges but innocent on others. Here's the
story of a case where a judge hit one of
Ray Gary's clients extremely hard with a trial tax. This
case happened many years ago, and I think you might
(32:23):
recognize the prosecutor. I took on a client who was
charged with armed robbery. My client and three other young
men robbed a pet smart So they went out and
they bought b B guns. But the BB guns looked
real You couldn't tell that they were not real guns.
(32:46):
Two of the boys go in and had inside a doghouse.
So after the door was locked and the store was closed,
the two armed robbers come out of the doghouse and
round ever body up and they go open the door
and let the other two robbers in. The victims are
scared to death. Some of the people in there recognized,
(33:10):
you know, one of the perpetrators, so they called the
police and said so and so and three other guys
just robbed us. So one guy pleads guilty right away,
gets twenty to do ten, which was Phil Holloway's best offer.
And really that was a good offer because the minimum
(33:32):
sentence for armor robbery was twenty to do ten. I
think so Phil had a pretty strong case. But my client,
strangely would not plead guilty. He was like one of
these ostriches that stick their head in the sand. And
I tried to explain, I agree that it's too much.
(33:53):
I agree that it's not fair, but you've got to
choose between bad or worse, and if you go to trial,
it's gonna be a lot worse. But his mother had
a vision from God that he was going to be acquitted,
and so we started the trial. My clients convicted on
(34:17):
four counts of arms robbery. My client ends up getting
forty years in prison without parole. In a matter of fact,
that was about fifteen or sixteen years ago. And so
all the other three who took the deal there, they've
been out for four or five years. My guy is
still in here from him every now and then, but
(34:39):
really there's nobody that can let him out unless the
judge was to change your mind. That case happened back
when I was working at the District Attorney's office as
an assistant district attorney. While I was not involved with
the sentencing in the case, it was up to me
to determine what charges to bring, and as Ray said,
(34:59):
I offered this client the legal mandatory minimum ten years
in prison. I wanted to bring back Jesse Evans to
once more get a current prosecutor's perspective. Jesse has told
us in the past that the charges that he brings
are always determined by the facts of the case as
he believes them to be. That is exactly the way
(35:20):
that it is supposed to work, But sometimes some prosecutors
have different motivations, particularly the motivation to get cases pled
out and moved quickly. The trial tax can be a
very powerful tool that some prosecutors use to make that happen.
The reason that we have plea negotiations in large part
(35:41):
is because of the idea that we want to have
some certainty from all perspectives, from the victims perspective, from
the prosecutor's perspective, from the defendant's perspective. There's no guarantee
when you insist on a trial of what those and
injur results are going to be, except for maybe this.
The net outcome is no longer in your hands once
that jury is selected, and once that trial starts a
(36:03):
lot of the consequences for what happens is no longer
going to be in the criminal defendants perspective. It's not
going to be in the prosecution's perspective. Necessarily, it's going
to be in the perspective of twelve jurors and ultimately
the judge it's going to be responsible for sentencing thereafter.
Fear of the unknown is an important factor for how
we resolved cases within the criminal justice system. The fact
(36:25):
of the matter is, just to take cop counting by example,
we've got ten superior court judges. Let's assume that each
judge has got one trial week per month. Start doing
the math there, They've got two hundred cases on their
trial calendar at any given point, hundred fifty two cases.
We cannot try all of those cases within a given year.
If we don't have the ability to resolve those, the
(36:45):
criminal justice system is going to fall apart. And we
all recognize that from prosecutor's perspective, from defense attorney's perspective,
and from judges perspective. But understand this too. Look, the
vast majority of cases resolving please because the person's caught
and they did it, and they know it. And really
what we're talking about is what's the best results. So
to say, for example, you know those hundreds, if not
(37:08):
thousands of cases where the police have arrested somebody and
have got heroin in their pocket. We're not going to
be trying cases of the person caught with heroin in
their pocket, where the defense is going to be these
are not my pants, right. That doesn't make sense the
cases that tend to go to trial with more serious ones.
When you're charged with murder, the consequences are so great
that the chances of being able to resolve that case
(37:28):
are diminished because of the nature of the charges. I
don't disagree that there are probably instances where people are
willing to enter a pola not because they believe they
are in fact guilty of it, but because they believe
the consequences are too great. I would say that those,
in my opinion, are probably in the minority and not
the majority. I've never been charged with the crimes that
I can say, but I know I'm not going to
(37:50):
be able to come to court and say that I'm
guilty of something that I didn't do. I'm gonna insist
on it on my trial. A judge, there's really nothing
but a government bureaucrat. We have this perception of what
a judge is, and you know they're perched up on
(38:10):
a high platform in the courtroom and they're wearing that robe.
But if you really think about it, they're actually a
government bureaucrat, just like the clerk of the court that
sits in front of them. A government workers always going
to take the short way, so you know, the clerk
of the court deals out the cases like a card
(38:31):
dealer dealing out cards. Every judge in the same circuit
gets the same amount of cases that's saying to them,
and so you've got to finish those cases. And it
don't look good if you have a big backlog and
there's not enough time to try all the cases. One
judge told me the most criminal jury trails he could
(38:52):
have in a year is thirteen because they planned their
whole year out and if something falls through, that takes
you down to twelve to ten. I talked to that
same judge a few years later, and he only had
four criminal jury trials a few years later. So there's
not enough time. So I say, I got a client
(39:14):
that's charged with burglary. If we have a trial, I'm
gonna take about four full days of the court's time.
If I played guilty to a plea bargain, I'm gonna
take about fifteen minutes of the court time. Who wouldn't
(39:35):
want to go the fifteen minute route as opposed to
the four day You know, everybody's motivated to try to
do a plea bargain, and that's why in most cases
our plea bargains in very few cases are trials. Now,
the way they get you to do that, the word
gets out that there's a lot more punishment. That reminds
(40:02):
me of of a story about a judge wanting to
make it short. And I had a client who he
wasn't innocent necessarily, he was more in the gray area.
We wanted to trowl. So we got the phone call
be here Tuesday afternoon at one thirty to start to trial.
(40:25):
So the judge was in his chambers, which was right
next to where I was sitting in so I can
hear the judge and what I hear as him saying,
played golf today. Yeah, yeah, I can make it. I'm
n percent here, I can make it. Yeah, plan on
me being there. So I'm thinking, hey, if I go
(40:48):
to trial, he's not gonna make that tea time. He's motivated.
This is good. So the judge buzzes out to the
administrative assistant send both lawyer us back here, and so
we sit down and he says, can't you boys work
this out? I said, well, I think so jah, And
(41:09):
the prosecutor said, well, I don't know. I don't know.
I'm under pressure from higher ups. The judge said, what
are you looking for a raid? I said, I'm looking
for one year to serve in you know, about five
years on probation. As the prosecutor, what you offer him?
He said, well, I offered him three years to serve
(41:32):
and two years on probation. Judge said, can't you come
down to one year? He said, I really just don't
think I can. The judge looked at me and he said,
why don't you get your client to plead guilty without
having a plea bargain, which ordinarily would be playing Russian roulette.
(41:52):
If your client doesn't like what the sentence is, I'll
let you withdraw it and proceed with a trial. Which
was the same thing as him telling me I'm going
to give you exactly what you said you wanted. So
I said, yeah, yeah, we'll we'll plead guilty with no
deal on the table. So we played guilty, and that's
exactly what happened and the judge went to play golf.
(42:14):
It's just a bunch of unique circumstances that resulted in
a me not having to try the case, be my
client not risking going to prison longer. And it actually
took the pressure off the d A too, because it
wasn't his fault. You know, he could go back and say, hey,
I can't stop him from pleading guilty. Judge didn't do
(42:35):
what I wanted him to, so the d A was
off the hook. The DA didn't have to try the case.
I was happy, my client was happy, the judge was happy.
This wasn't something the judge told me. This was just
something I overheard. Before we finish up this episode, I
wanted to play for you. One more point that defense
(42:56):
attorney and friend of the show, Ashley Merchant, brought up.
There's another consequence to mandatory minimum sentences that she sees
in her work that might not be immediately apparent. I
do a lot of work with prison inmates them and
I think a lot of people don't think about this.
When you have a mandatory minimum where there's no parole,
(43:17):
and you take away hope from a prison in made
of getting out, you create a very, very scary prison system.
The behavioral incentive for inmates is parole. If you sentence
people to twenty five years to life without parole, they
are going to go into prison and commit more crimes
because they're never going to get out and they have
(43:39):
no hope of every getting out and they know they're
never gonna get out. What are you gonna do to them?
Give them more time. So I've had clients who told
me about They're like, if I'm never gonna get out,
I'm going to sell drugs in prison and send the
money to my family because that's the only way i
can make money for my family, and I'm never getting out.
I think you're seeing inmates that are willing to take
chances on crimes because it can't get me where For them,
(44:01):
you know, it becomes the Department of punishment, not the
Department of correct since you're not trying to correct behavior
if you're locking someone up and never letting them out
because of a mandatory minimum. There's so much more to
cover on the risks associated with going to trial and
the hidden costs also associated with going to trial. So
we'll continue this topic next week. Plus there's a legal
(44:21):
tool we haven't yet discussed that allows people to take
advantage of a plea deal without ever saying that they
are guilty. One of the things we found out while
making this show is that tool, which I use for
a lot of my cases, is more controversial than I thought.
(44:42):
Next time on Sworn, the blame in part is on
all of us, because this would not be occurring or
not occurring in the extreme way that we're describing if
there were more judges, more resources for criminal defense lawyers,
(45:04):
especially for indigence or in depth enquiries, lower penalties. If
you took the person in the street and showed them
what you just described, I think most people would say,
oh my gosh, I never thought of worked like that.
I mean, that's like what they used to do in
Soviet Russia. That stuff that's not justice, but they have
(45:26):
no idea. Sworn is a production of Tenderfoot TV and
I Heart Radio. Our lead producer is Christina Dana. Executive
producers are Payne Lindsay and Donald Albright for Tenderfoot TV,
Matt Frederick and Alex Williams for I Heart Radio, and
(45:48):
myself Philip Holloway. Additional production by Trevor Young Mason Lindsay,
Mike Rooney, Jamie Albright and Halle Beadal. Original music and
sound designed by Making Up and Vanity Set. Our theme
song is Blood in the Water by Layup. Show art
and design is by Trevor Eisler, editing by Christina Dana,
(46:10):
Mixing and mastering by Mike Rooney and Cooper Skinner. Special
thanks to the team at I Heart Radio from u
T a or In Rosenbaund and Grace Royer, Ryan Nord
and Matthew Papa from the Nord Group, back Media and
Marketing and Station sixteen. I'd also like to extend a
(46:30):
very personal and special thanks to all of our contributors
and guests who have helped to make all of these
episodes possible. You can find Sworn on Facebook, Twitter, and
Instagram at Sworn podcast and follow me your host, Philip
Holloway on Twitter at phil Holloway e s Q. Our
website is sworn podcast dot com, and you can check
(46:54):
out other Tenderfoot TV podcasts at www dot tenderfoot dot tv.
If you have questions or comments, you can email us
at Sworn at Tenderfoot dot tv or leave us a
voicemail at four zero four four one zero zero four
f one. As always, thanks for listening. Do you know
(47:19):
what a podcast is? Rae Well, my impression of it,
although I've never heard one, is that it's uh like
a radio show, but instead of getting it on the radio,
you get it off the computer, right, I mean, I'm
from the old school, so I've never actually heard a podcast,
but now that I'm involved in one, I'm intend to,
(47:39):
you know, listen to one, especially your show, if I
can find it.
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