The Anatomy of a Plea Deal: A Gift or Affordable Relief?

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I have always understood the process of plea-bargaining to be something that only a guilty person would ever consider. It’s an obvious conclusion drawn simply by the term “bargain or deal”. Let’s face it; if you are guilty and you know it, and there is evidence against you, any deal is better than what you may face at a jury trial. Not only is going to trial bogging down the courts schedule, inconveniencing potential witnesses, and is an huge cost to the tax payers, but there is always an element of risk to the prosecutor that they just may not win their case. The strategy of stacking on the charges in an indictment gives them a better chance that something will stick and with a win, put the defendant away for a much longer period of time. But the “charge stacking” also provides the “bargaining materials” for the basis of the plea bargain. Peeling away at those stacked charges makes the plea attractive, reduces time served and becomes very convincing that the guilty should avoid the risk of trial at all costs!

So why would an innocent person ever accept such a deal; let alone even consider it? We know that this does and still happens in courts throughout this country. The plea deal is a tool of the trade. This may hold to be more evident in cases where no evidence exists or are more circumstantial in basis in which the risks of a prosecutorial win is less than favorable. Again, stacking the charges increases the charge level, increases potential sentencing terms and increases the defenses risks at trial for their client. Again, in spite of all the odds, why would any innocent person ever agree to concede and forego their right to a trial by a jury of their peers? It doesn’t make sense does it? It didn’t make sense to me and it doesn’t make sense to jurors either.

Here in lies the problem with a circumstantial case, or a case that has no physical evidence, no eyewitnesses; nothing. The issue becomes the prosecutor’s use of theories and assumptions as to why the defendant is guilty. The defendant’s only ace in the hole, presumably, is their presumption of innocence. But from a juror’s perspective, who in the courtroom holds more presumed credibility; the prosecution or the defendant? The most powerful presumption in that courtroom is that the truth will be seen and heard and the jurors will get it right. But which version of the truth becomes more compelling and believable is the real dilemma at hand. So a good defense is going to weigh out and explain all these complicated dynamics to their client so they can make a rational decision about an irrational process. Not an easy proposition by any stretch of the human imagination. After all, the first question in any juror’s mind will be; “why would an innocent person be in this courtroom in the first place if they weren’t guilty of something wrong?” Good question, but it also becomes the first assumption of guilt before the process starts.

So take a moment and ponder this scenario for a moment. As a reader or an outside party, you have nothing to gain or lose by examining this process. You have been falsely accused of a crime; there is no evidence against you because you are truly innocent. Circumstances may give the appearance of guilt, but again you are innocent, so of course the truth will set you free. The prosecution’s only strength is their theory and circumstances posed in the form of an indictment. Perhaps in a case that doesn’t involve murder, there are witnesses willing to testify against you; not as eyewitnesses but simply their word against yours that you are capable of guilt for the crime. This scenario is real and happens many times in sex related crimes and in some cases, even murder. The prosecution comes to the table with a plea deal. What do you do? What is your first response to the notion they want to make a deal? Do you consider it or outright reject it? What are the risks of either action? Taking it admits guilt. Turning it down and going to trial is risky because in all reality it comes down to whom gives the best accounting of their version of truth. What if you lose? What do you risk at sentencing? Can you appeal? Not such a simple task remaining innocent while others are being convinced you are not. It’s your life, what do you choose to do?

For just a moment, let’s consider that plea deal. Yes, we understand your innocence, but it’s counsel’s responsibility to explain all sides of this not-so-simple process. First, taking the plea is an admission of guilt; period. Guilt is forever in the eyes of the court and in the minds of society. After all, who in their right mind admits to something that they didn’t do? Research the Innocence Project and ask yourself that question again. Next, by accepting that plea, in most jurisdictions, you as part of the plea, waive your right to an appeal. That’s right, you cannot use the judicial process to right your false plea of guilt. So relief is no longer an appeal away. Now there is that punishment portion of the plea, the reduction in sentencing or time to be served. The plea may entail a reduction of a potential of 20 years based on all the charges in the indictment, but the plea may reduce it to 5-8 years; a big difference. But here’s the problem; you’re innocent, right? How can this be right? This isn’t justice. So what do you do? Accept and admit guilt or take your chances at trial? I understand, there is just no way that 12 people will not see your innocence and that the truth will reveal itself and this nightmare will be over...think again. Oh something else to think about here, once they ship you off to prison, no matter how innocent you may be, the prison system only sees one thing…an inmate. You are issued an inmate number; a cell and your life will be forever changed from that day forward.

Okay lets go to trial and win, right? Sure there are always the chances that your attorney can raise all the valid arguments to your actual innocence.  They will dispute any timeline allegations and uphold your alibi, if you can produce one. They will argue every constitutional violation known to man and will tell the jurors that the law requires a presumption of innocence and that any reasonable doubt in their minds protects the defendant from wrongful prosecution. But how do you fight against the bias and prejudice presented by the prosecution? After all, they have nothing but that to work in their favor right? You sit there as an innocent defendant hearing these lies being told and your attorney objecting; but what is being set in those juror’s minds? Nobody knows until the verdict is read.  If they acquit, you’re  free right? After all, depending on the charge, your name has already been smeared, your reputation dragged through the mud. Some will even believe that you are still guilty, but got off on a technicality or simply got away with it. Will you get an apology from the prosecutor who got it wrong or the investigators who swear against your innocence? Will life as an innocent person really ever be the same? But lets say you lose and you get convicted. Your lawyer will object to the verdict and file for an appeal. Of course if you are broke to begin with, an appellate attorney will be appointed for you. And perhaps you spent all the money you could afford on your defense attorney and you’re broke now, they will still appoint one for you. Meanwhile, you are sentenced and sent off to prison. You go to prison as punishment, but quickly find out that it is for more punishment. A year passes while you wait for your appeal. Your appellate attorney will ask to be heard, and if granted, gets a whole ten minutes to plead your case. As soon as it starts, it seems its over. Then its that waiting time again. Chances are good that it will be denied, but the hope of something positive still looms in your mind because after all, although convicted by a jury, you’re still innocent you see. So if it’s denied, you appeal the appeal at the next level of court. Your state appointed appellate attorney is still at your side, so to speak, because they never really ever meet you. Another brief and another request to argue; and then you wait again, perhaps another year goes by. Meanwhile you’ve been down 3 years or so, your family continues to fight and pray. They hopefully send you money for commissary and prepay the phone so you can call home to stay in touch with some form of reality. They try to visit and sit and talk. They try everything in their power to give you hope that justice does exist, while the reality of life in prison removes that hope of a life that is ever normal again. So chances again are that this court will uphold the last and you are denied again. So what’s next? Oh yeah, the clock begins to tick again. Your state appointed attorney is done and gone. You have two choices now, hire another attorney or go pro se; in other words, on your own. Your options to proceed are to file a corum nobis which is ineffective appellate counsel; a 440 motion which goes back to your trial court and bring in new evidence, if any; fight prosecutorial misconduct, ineffective assistance of counsel and any other trial errors that there may be case law to support. Then your last resort, after all others are exhausted, is the federal habeas. Generally you have a year to file something, but how and by whom? You only got a couple good chances left to fight for your innocence and freedom. Going pro se is risky, but is done by inmates all the time because that is all that they can afford to do. But what’s the cost for an attorney to assist you? A Corum Nobis can cost up to $10k, if you have enough to argue on. A 440 can be up to $50k plus for an aggressive lawyer that will fight the trial court. And if you can get to the Federal Habeas, what do you or your loved ones have left to pay out for yet another attempt at justice? My point is, although you have a right to an appeal, can most ever afford to have one, let alone a good one? Sure there can be success, but truly its not very often. The system is not so ready to undo what it has done, especially when it comes to admitting to the errors of its actions. Keeping you tucked away in a for-profit prison system better serves society than your quest to prove your innocence. Nonetheless, you will fight, you will file what you can and with all likelihood you will lose because the system is designed to work that way.

So as we analyze the process and the results we have come to understand; we must truly ask ourselves what the difference between a plea and exercising your right to a trial? The right to a trial is simply a gamble, not a guarantee. The fair play rules are not so fair. The interest in truth is secondary to winning their case. There is just too much politics and power on the line here. Exercise that right and lose, well you can expect the maximum, after all, you turned down the deal. But where do you stand in the end? Is there really any difference at the end when all the dust and drama goes away? If you plea, and serve a short term, you’re out as a guilty person and faced with a society that sees you as a criminal and a felon. Serve your maximum sentence of 20 years, because in order to get paroled early, you must admit your guilt and feel remorse. How can that be possible for someone that is innocent? So you go the max and get out as a criminal and a felon. Your innocence has long disappeared and maybe your family, your parents and grandparents are gone too. So what do you have and what did you gain? In my mind, innocence is moot at this point because nobody really cares. You’re guilty forever in either case, other than you were not stuck in a cell away from your family if you had taken the plea. The real difference lies within the heart, sole and dignity of an innocent person. Although the outcome appears to be the same; living with a false admission of guilt may be more than you are willing to pay.