THE BLOG
01/31/2014 05:17 pm ET Updated Apr 02, 2014

Guiltless Guilty Pleas

The dirty little secret in the administration of criminal justice is that sometimes -- indeed, way too often -- innocent people plead guilty. And this is not about individuals with a mental deficiency who allow the police to falsely or mischievously talk them into a belief in their own guilt. That too is an enormous problem, but it is not the subject of this discussion.

Here, it's about defendants who plead guilty after making a risk/benefit analysis. Consider a poor defendant who can't afford bail when arraigned on an insignificant misdemeanor charge of which he is innocent. Lacking funds, he is remanded, at least until the next court appearance twenty days later.

Put yourself in his shoes. You face the possibility, if convicted after trial, of a maximum of one year in jail. However, after you have been incarcerated for 20 days, and you next appear in court, the judge formally and frankly tells you that, given the court's backlog, she can't set the case down for trial for another two months. She then gives you a "choice" - if you plead guilty today, while you are then standing before her, she will sentence you to 20 days in jail, i.e., "time served." In other words, you will be released TODAY, having served the full sentence to be imposed. All you need to do is say aloud: "Guilty as charged."

Risk/Benefit? After spending twenty, horrifying, one-eye-open, days (and nights) in jail, how many of us would resist desperately choosing to see the light of day immediately -- when you would otherwise spend at least another 60 days in jail before you gain even the possibility of a "day in court" to prove your innocence? And you get to make this risk/benefit analysis as you stand before the judge -- perhaps you can have a discussion with your appointed counsel, but there is no time to consult with family or friends. And make no mistake -- in this scenario, you are a true innocent, although the judge, the prosecutor and even your own lawyer have all "heard that story before." (By the way, cynics -- maybe many others also -- believe that some prosecutors and judges are quite aware that people will plead just to get out of jail and use "time served" tactics to affirmatively gain guilty pleas in marginal cases.)

So you take the path of least resistance and admit in open court to something you simply didn't do. Okay, so it's a misdemeanor, and it won't amount to much of a mark against your reputation; it won't really affect your life badly. But let's up the ante. Suppose you are (wrongfully) charged instead with a felony of which you are innocent, and you are without funds to make bail. After almost a year in jail due to court backlogs and your own lawyer's caseload, the case is finally coming to trial. If convicted, you might be sentenced to six years. But the prosecution offers you a deal -- if you plead guilty now, you will only need to serve another six months in jail, after which you will be finally released. All you have to do is say aloud: "Guilty as charged." So you weigh it -- six months or six years. That's right, six years.

You have to admit a felony, and that will be a serious mark against your future. But again, risk/benefit? Remember, innocent people get convicted all the time. It could be you. And if you go to trial, and you are acquitted, you will never get that year back. Make no mistake, the likelihood that you will be financially compensated by the state for your ordeal is virtually nil, unless you were actually "framed" by law enforcement having deliberately not provided you with exculpatory evidence -- and that's going to be an enormously hard burden to sustain.

Yes. The guiltless guilty plea is a dirty little secret but Judge Gerald Lynch, who sits on the lofty Second Circuit Court of Appeals, in a more complicated situation than described here, addressed the problem head on in a concurring opinion, exposing it for what it is: a horrible reality of our criminal justice system.

In 1998, Marcus Poventud was convicted in Bronx, New York of attempted murder and related crimes. The conviction was upheld on appeal, except that in 2004, in a post-conviction proceeding, Poventud successfully challenged his conviction when he claimed that the state prosecutors had deprived him of a fair trial by failing to disclose to the defense -- in a one eye witness case -- that the eye witness had previously identified Poventud's brother, not Poventud, in a photo array. But after the challenge, Poventud was offered a deal and made his own risk/benefit analysis. While the District Attorney was deciding whether to appeal the reversal of the conviction, Poventud pleaded guilty to attempted robbery with an agreed sentence of one year. He was immediately released from prison - time served.

But Poventud did something more. In Poventud v. City of New York, he sued the City under Title 42, U. S. Code, Section 1983 - still known as the Ku Klux Klan Act of 1872 -- claiming that he was deprived of his constitutional rights. The City defended, stating that no §1983 claim could lie because Poventud pleaded guilty; in other words, how could Poventud possibly claim a constitutional deprivation when he admitted to committing a (the) crime? The facts and legal arguments were complicated, leading to a split decision with seemingly all judges filing their own concurring or dissenting opinions. Ultimately, Poventud prevailed, in the hands of his able lawyers Joel Rudin and Julia Kuan. His lawsuit was allowed to proceed in a Court of Appeals ruling dated January 14, 2014.

But Judge Lynch did something in his concurring opinion the others did not; he went right to the heart of the issue -- that Poventud's guilty plea tells us very little, except that he is legally guilty of the crime for which he took the plea. In his unique phraseology, Judge Lynch said this:

But do we not now know that Poventud is guilty, as a matter of fact, because of his plea? I submit that we know no such thing. Poventud is legally guilty of the crimes he was convicted of by a putatively fair process. That guilt is as much a matter of legal convention as is his legal innocence of the more serious charges of which he has never been fairly convicted.

*****

...[W]hatever the general merits and demerits of such a system [of justice that allows such a plea], it too was corrupted by the initial wrong that undermined Poventud's first trial. Just as the prosecutor's case was weakened by the passage of time, so was Poventud's ability to make a fair choice between alternatives. The choice of freedom in exchange for an admission would be easy for a guilty man, but even an innocent one would be hard pressed to decline the prosecution's offer. A hero might resist the bargain and insist that he would not accept the ignominy of falsely admitting guilt. One is reminded of John Proctor, falsely accused of witchcraft in Arthur Miller's play The Crucible, who goes to the gallows rather than accept an offer that would let him go free in exchange for a false confession. It is difficult to expect such heroism of mere mortals. Proctor, though based on a historical figure, is after all a fictional character, and even he first signed the false confession before having a change of heart. Poventud did what I suspect most ordinary human beings would do in his situation, even if they were innocent.

*****

A confession in open court is ordinarily powerful evidence of guilt, but we know that false confessions have been obtained by pressures much less imposing than those to which Poventud was subjected.

For anyone familiar with the inner workings of the criminal justice system, it is unsurprising that innocent men and women plead guilty all the time. It is surprising, though, when a distinguished federal judge, in the context of a complicated factual situation, seizes an opportunity and goes so far as to say that "most" innocent people would plead guilty -- even to a serious felony -- to avoid a significant rip in jail.

Just imagine being Marcus Poventud when that exquisite "moment of truth" is at hand for you! Most of us can't fathom that happening to us. Nor probably did he, except during the nine years he spent in jail for a crime for which he has always claimed innocence. And then -- given the opportunity to get out of jail now, today -- the moment he decided to plead guilty to a crime that, as Judge Lynch notes, we will never know if he actually committed.

As those of us who work within the criminal justice system have long known, we -- meaning judges, prosecutors and defense counsel -- must all redouble our efforts to ensure that everything possible is done to avoid the kind of miscarriage that wrongly sent Marcus Poventud to jail for nine years.