Drawing Conclusions from a Plea

[L.J.Steele]

I'm concerned about the comment in today's detail (1/11/10) that examiners should draw a conclusion about the validity of the discipline or the Rose evidence based on a plea (if there is one). A plea can mean that the defendant is guilty and admits it -- that's what happens, after all. But Pat W's talk about fabrications that led to pleas, and the DNA exonerations of defendants who pled are demonstrations that sometimes innocent defendants plea because the risk of losing at trial, and the resulting higher, of-times much higher, sentence is much higher. I had a client who had a plea agreement in a combination of cases for 35 years, re-opened the plea later (a rare thing for a court to allow this), went to trial, lost, and got a combined sentence of 110 years. Numbers like that can make it a rational decision to plea even if one is completely innocent.

To put it another way, one could infer that the gov't had enough concerns about losing at trial that it offered a plea rather than put its evidence before a jury and let them come to a public verdict, which a cynic might say confirms the weakness of the evidence and field.

Guilt and innocence as well are complex ideas in criminal justice -- a defendant may be guilty of some involvement in a crime, but not the exact charges brought, or might be factually guilty, but the evidence may still be unreliable, or a number of other variations. The gov't is required to prove its case beyond a reasonable doubt -- the defendant is entitled to assert his innocence and put the state to its proof. The question becomes then, is the state's evidence strong enough.

Certainly there are circumstances when a plea or verdict is what it seems -- an affirmation of the examiner's results. But a better course might be to consider the evidence itself, with a court decision or plea as, at best, an indication, at best, not confirmation or verification

[Pat A. Wertheim]

Hi Lisa

I understand the compromise with one's integrity in taking a plea offer from the prosecution when you know you are innocent, but having never been in the position of having to make such a decision I cannot fully appreciate the emotional trauma. In effect, you have to perjure yourself to take the plea. But faced with a high probability of conviction and a long sentence, how many people have compromised their integrity and taken the plea offer?

Doesn't a plea agreement preclude the later filing of an appeal? Under what circumstances can an appeal be filed when one has pled guilty and accepted the sentence?

[David Fairhurst]

In effect, you have to perjure yourself to take the plea.

Curious. This is not a part of a trial that I have ever witnessed and so I'm not sure of the procedural details.
Are pleas taken under oath? If so what part does "the fifth" play here?
Also doesn't this also mean that anyone pleading not guilty and subsequently convicted has also committed perjury?

[Gerald Clough]

Whether a plea can be appealed is somewhat a matter of which state you're in. I think most provide for no appeal when things are done properly. Not all pleas are the result of sentencing offers. Some defendants plead "open," leaving it entirely up to the judge's discretion. The judge, of course, always has discretion but normally goes along with an offer and recommendation from the prosecutor. Here, judges admonish those pleading to a deal that, if the judge agrees to the deal, they can only appeal with the permission of the trial court and that, if the judge does not approve the deal, they may withdraw their plea. Of course, the most common motivation for pleading is the attorney's advice that there is a good chance that, if convicted, the sentence will be considerably higher than the offer. Offers are not always very attractive. often they are for quite a long sentence, but one that is still less than what might be had. Pleas are also done on the promise that the state will allow an open plea to a lesser charge or that they will not invoke some enhancement or that they will not pursue additional charges. And other sanctions may be part of an offer, things other than years in prison.

But the appeal question is not so simple. Attorney advice that falls below the minimum standard for effective assistance may move a higher court to allow the appeal on those grounds. Ineffective assistance can take many forms. An attorney is supposed to be familiar with what is usual and customary in that jurisdiction and is supposed to effectively investigate the defenses and mitigations. We have also had offenders claim on appeal such things as feeling compelled to plead guilty to get on to prison where their medical needs would be met as they claim they were not being met in jail.

Even though the judge asks the defendant directly is they are guilty ("Are you pleading guilty because you are guilty?"), the decision is often a pragmatic one of balancing the prospects of various outcomes at trial. Some defendants will go down fighting if they believe they are not guilty (or go down fighting when they know they are guilty). Others can plead guilty, even though they believe they are not guilty. "Guilt" is not always so clear cut. When an individual is involved in a crime, the question is more often not one of identity but of type and manner of involvement, a question of criminal culpability. One would have to listen seriously when their attorney informed them that, while there are reasonable arguments that they are not culpable according the elements of the offense, they are likely to be convicted. So, it is not always a matter of perjuring yourself to take a deal. It can be better characterized as accepting the state's interpretation of the facts.

Likewise, an offer does not necessarily reflect doubts as to guilt on the part of the prosecutor. They, too, have to make decisions of this kind according to their judgment of how likely is a conviction and what sentence is likely from a jury. The court system would come to a virtual standstill if all cases had to be tried. One of the prosecutor's tasks is to manage their resources. A prosecutor who never makes an offer or who always goes for the maximum sentence will be unable to handle the caseload, and the court will back up. D.A.'s can be judged in much the same way that hospital surgical committees judge surgeons. A surgeon whose every appendectomy finds a hot appendix is taking too many chances in passing on possible cases. A surgeon who is taking out too many healthy ones is too free with his knife. A D.A. who has a 100% win record at trial is giving away too many cases with weak offers. A D.A. who loses too many is not good at his job.

And remember that defendants make offers, too, including offers, sometimes accepted, to act as a state's witness. A plea or guilty verdict has nothing to say about the accuracy of a fingerprint identification being correct, any more than a not guilty verdict has to say about an identification being wrong. I believed everyone I ever sent for prosecution was guilty. I swore to that belief. I don't recall a not guilty verdict that changed my belief. (It could have happened. I just never had one that did.) Even known factual guilt often cannot confirm the accuracy of an identification. Nor can it address the situation where a fatally flawed examination happened to name the actual source. Those looking for factual confirmation of proper latent fingerprint identification will nearly always be frustrated, since the only measure we have is the negative evidence that an identification done to the accepted standard hasn't been shown to wrong, either by our community agreement that the standard was not met or by somehow discovering that it was factually impossible for the named source to have made the mark. We should not confuse the issues of guilt and correct identification. While they come together in court, our concern is strictly the identification of the source of a mark, and only factual information about who did or did not make the mark is useful. This is a difference in point of view that often confuses discussions. We are dealing in fact issues of identification made to the best of our expert ability to convince ourselves that there's sufficient reason to give the conclusion great weight. But law itself deals with answering questions that must be answered without an "inconclusive" option. We can say, "We can't say." When a jury says, "We can't say," we try again with another jury or abandon the question. The can't test the accuracy of one according to the outcome of the other.

(You cannot be prosecuted for perjury on account of pleading not guilty and then being convicted. You cannot commit an offense by exercising a statutory right. It's simply the way you invoke your right to trial, to demand the state prove their case. It would be a bit silly to plead that you might be guilty but would like a trial. If you refuse to enter a plea, the judge will enter a not guilty plea for you. For that matter, prosecutions for perjury for a defendant's false testimony are extremely rare. There's no statutory exception for being the defendant, but it would usually be an overly burdensome use of resources and would often be hard to prove. To prove perjury, you have to prove the material falsehood in fact, and you can't just use the jury verdict to prove it. For one thing, that would probably be held to have a fatally chilling effect on the ability to defend yourself. And you really don't know if they believed it or not or if they believed the counter-factual testimony or not. It kind of comes under the heading of bags of snakes that aren't worth opening.)

[L.J.Steele]

Gerald C has explained it pretty well.

I don't do a great deal of trial work, so I've rarely been in the position of advising a client on a plea. I can say one of the longest few minutes of my life was after my first bench trial, when the client turned down a pretty good offer, and we were watching the judge finishing his notes and waiting for the judge to make a ruling of guilty/not guilty. (NG on all but the count the client admitted to and wasn't fighting.)

The attorney will generally try to negotiate a plea offer, then bring it to the client with a recommendation. How it gets presented depends on how the attorney feels about the chances at trial -- strong language is not uncommon if its a good offer and the client has a weak case, even if the client is firmly asserting that he or she isn't guilty. Ultimately, the decision is up to the client and is one of only a few that he or she must make (what to plea, whether to be tried by a jury or judge, and whether to testify are some of the others). Many others are made by counsel with consultation with the client (tactical decisions about what witnesses to call, or how to question them, or what leads to follow up in investigations).

Some pleas expressly reserve the right to appeal one or more issues and that is a factor in the offer made. Sometimes clients later argue that the plea was not properly done -- often that the attorney did not tell them about some collateral consequence (like deportation), or didn't do a proper investigation, or missed some important legal issue. This is an uphill fight, but it happens.

If there are multiple co-defendants, there may be a plea offered to all, or offered to some on condition that they testify against the others. I had a case where the person who instigated a nasty beating of four young men, and the four young women who knowingly inticed the victims to the beating, all got off with very light sentences in a plea, or no charges at all, because the prosecutor really wanted their testimony against two peripheral figures in the assault -- my client and a co-defendant.

[Kasey Wertheim]

Accused mall murderer to plead guilty after fingerprint evidence admitted
Posted: 11:45 am Mon, January 11, 2010
By Brendan Kearney
Daily Record Legal Affairs Writer

Brian Keith Rose, the man accused of killing Warren T. Fleming in an attempted carjacking at the Security Square Mall in 2006, and whose case made national news when partial fingerprint evidence in the case was thrown out by a Baltimore County judge, will plead guilty this afternoon in U.S. District Court.

Rose, 24, will be re-arraigned at 3 p.m. before U.S. District Judge Catherine C. Blake, and he will be sentenced by Blake next Tuesday, according to a court notice.

Rose was initially charged in Baltimore County. In 2007, Circuit Judge Susan Sounder ruled the fingerprints inadmissible on grounds that the technique used to analyze them was not scientifically reliable. Following that ruling, charges against Rose were dropped and re-filed federally. U.S. District Judge Catherine C. Blake disagreed that the fingerprint analysis was unreliable and admitted the evidence in September 2009.

Fleming, who owned a Cingular store at Security Square, was shot in the head as Rose and his accomplices allegedly tried to steal his Mercedes. Prosecutors say police found Rose’s fingerprints on the Mercedes and on a stolen Dodge Intrepid used in the carjacking.

Though Baltimore County was seeking the death penalty for Rose, the U.S. Attorney is not.

The U.S. Attorney’s office and one of Rose’s defense lawyers declined to comment ahead of the plea.

[Gerald Clough]

The plea probably says more about the relative abilities of prosecutors and examiners to represent the discipline than about fingerprints. The insightful commentary in The Crime Lab Report from shortly after Judge Souder's ruling still stands as one of the best:
http://www.latent-prints.com/images/11-2007s.htm

Courts do not conduct their own studies or even apply the judge's own knowledge. They work with what is brought before them in the case at issue. Whether or not one decides if they would or would not have made the same ruling if they had been the judge (and having been a criminal judge, albeit a very small one, I can tell you that's an extraordinarily hard thing to decide), the defense set a trap, not a very sophisticated one, and the state stepped into it by making what statement that appears unsupportable unless you understand the issues, without managing to explain the issues. You can view it as "judge's unusual exclusion of fingerprint," but you can also view it as "state manages rare loss in fingerprint challenge." When the judge plays that role as they should, you can lose, if you're not a good advocate for the discipline, even when the judge knows you're right.

[rbostrum]

Certainly there are circumstances when a plea or verdict is what it seems -- an affirmation of the examiner's results. But a better course might be to consider the evidence itself, with a court decision or plea as, at best, an indication, at best, not confirmation or verification

I agree that a plea in itself cannot be used as 'proof' some or all of the evidence is accurate/reliable. People will plea bargain for many reasons. The same can be said for any conviction or acquittal, in general, since the outcome of a trial is based on the totality of the evidence; not any one part of it.

Having said that, I have seen one approach used to address this issue a little more directly. In the bargaining process both counsel have prepared a joint, agreed-upon 'statement of facts' that was presented to the court as part of the plea. With counsel agreement on both sides such statements have included direct acknowledgement of the accuracy of the evidence including, specifically, the forensic work.

In those situations I think it can be argued there is some tangible level of "confirmation or verification" if only because the work was directly acknowledged as being accurate and correct (leaving aside the real possibility that the person might still be lying to facilitate the plea process). As such, it might have some limited value from the point-of-view of an individual examiner and that person's abilities.

At the same time, I don't see how anyone could argue that the work of one examiner on one case does very much to address the more general issue of the "validity of the discipline" overall. That has to be done in other ways.