Tuesday, November 4, 2014

Honorable Jed Rakoff, SDNY, Discusses Disparity In Sentencing Power, And The Transfer Of Sentencing Power From Judges To Prosecutors, Proposing Magistrate’s Involvement In Plea Discussions

Hon. Jed Rakoff has published a very profound piece in The New York Review Of Books, titled “Why Innocent People Plead Guilty”.  The full article is here:  http://www.nybooks.com/articles/archives/2014/nov/20/why-innocent-people-plead-guilty/?utm_medium=email&utm_campaign=NYR+Plea+bargains+Chinese+schools+Wonder+Woman&utm_content=NYR+Plea+bargains+Chinese+schools+Wonder+Woman+CID_89f09f245ed73e28dd6bbef74e4


He addresses the disparity in resources and power between a defendant and counsel, on one side, and a prosecutor, on the other.  He acknowledges that as many as 2% – 8% of innocent people may be presently incarcerated (20,000 or more) for crimes that they did not commit, but who were victims of a present-day prosecutorial system that differs drastically from that which our forefathers intended.  He states:


The reason for this is that the guidelines, like the mandatory minimums, provide prosecutors with weapons to bludgeon defendants into effectively coerced plea bargains. In the majority of criminal cases, a defense lawyer only meets her client when or shortly after the client is arrested, so that, at the outset, she is at a considerable informational disadvantage to the prosecutor. If, as is very often the case (despite the constitutional prohibition of “excessive bail”), bail is set so high that the client is detained, the defense lawyer has only modest opportunities, within the limited visiting hours and other arduous restrictions imposed by most jails, to interview her client and find out his version of the facts.
The prosecutor, by contrast, will typically have a full police report, complete with witness interviews and other evidence, shortly followed by grand jury testimony, forensic test reports, and follow-up investigations. While much of this may be one-sided and inaccurate—the National Academy of Science’s recently released report on the unreliability of eyewitness identification well illustrates the danger—it not only gives the prosecutor a huge advantage over the defense counsel but also makes the prosecutor confident, maybe overconfident, of the strength of his case.
Against this background, the information-deprived defense lawyer, typically within a few days after the arrest, meets with the overconfident prosecutor, who makes clear that, unless the case can be promptly resolved by a plea bargain, he intends to charge the defendant with the most severe offenses he can prove. Indeed, until late last year, federal prosecutors were under orders from a series of attorney generals to charge the defendant with the most serious charges that could be proved—unless, of course, the defendant was willing to enter into a plea bargain. If, however, the defendant wants to plead guilty, the prosecutor will offer him a considerably reduced charge—but only if the plea is agreed to promptly (thus saving the prosecutor valuable resources). Otherwise, he will charge the maximum, and, while he will not close the door to any later plea bargain, it will be to a higher-level offense than the one offered at the outset of the case.


The solution he proposes is to involve a magistrate early on in the plea-negotiation process. He states:


I am driven, in the end, to advocate what a few jurisdictions, notably Connecticut and Florida, have begun experimenting with: involving judges in the plea-bargaining process. At present, this is forbidden in the federal courts, and with good reason: for a judge to involve herself runs the risk of compromising her objectivity if no bargain is reached. For similar reasons, many federal judges (including this one) refuse to involve themselves in settlement negotiations in civil cases, even though, unlike the criminal plea bargain situation, there is no legal impediment to doing so. But the problem is solved in civil cases by referring the settlement negotiations to magistrates or special masters who do not report the results to the judges who handle the subsequent proceedings. If the federal rule were changed, the same could be done in the criminal plea bargain situation.
As I envision it, shortly after an indictment is returned (or perhaps even earlier if an arrest has occurred and the defendant is jailed), a magistrate would meet separately with the prosecutor and the defense counsel, in proceedings that would be recorded but placed under seal, and all present would be provided with the particulars regarding the evidence and issues in the case. In certain circumstances, the magistrate might interview witnesses or examine other evidence, again under seal so as not to compromise any party’s strategy. He might even interview the defendant, under an arrangement where it would not constitute a waiver of the defendant’s Fifth Amendment privilege against self-incrimination.

The prosecutor would, in the meantime, be precluded from making any plea bargain offer (or threat) while the magistrate was studying the case. Once the magistrate was ready, he would then meet separately with both sides and, if appropriate, make a recommendation, such as to dismiss the case (if he thought the proof was weak), to proceed to trial (if he thought there was no reasonable plea bargain available), or to enter into a plea bargain along lines the magistrate might suggest. No party would be required to follow the magistrate’s suggestions. Their force, if any, would come from the fact that they were being suggested by a neutral third party, who, moreover, was a judicial officer that the prosecutors and the defense lawyers would have to appear before in many other cases.

Monday, October 27, 2014

Milwaukee Family Seeks Charges In Police Shooting (Associated Press Covers Killing Of Dontre Hamilton In Red Arrow Park)

Mr. Hamilton was shot with 14 bullets by an officer who instigated an altercation with an illegal pat-down.  The officer has since been relieved (the first such sanction in the history of Milwaukee).  The family has peaceably engaged in protests while awaiting a determination of whether criminal charges will be brought against Christopher Manney, the officer who unlawfully instigated a pat-down and then killed Mr. Hamilton.  The AP story and related video are available here: http://news.yahoo.com/milwaukee-family-seeks-charges-police-shooting-051145114.html;_ylt=AwrBEiHfSU5UblAAFF3QtDMD
We are counsel to the family of Dontre Hamilton in this matter.   Thursday, October 30, 2014, will mark since months since the killing, and the District Attorney of Milwaukee still has yet to make a decision as to whether to criminally charge the officer, citing the need for outside sources to do an independent use of force evaluation.
The story also appears on these stations and papers:

Monday, October 13, 2014

Wallach On Law – “Final Words”, A Collection Of Last Statements Of Executed Inmates, And Exonoree Ray Krone, Who Came Too Close To Being One – Featuring Marc Asnin and Ray Krone.

Celebrated Photojournalist Marc Asnin discusses his new work, “Final Words”, which documents the final statements of executed death row inmates.  And Ray Krone, a celebrated veteran with no criminal history who spent 10 years incarcerated based on bunk “bite-mark” science, discusses his road to innocence.  Wallach On Law can be heard on iTunes, YouTube, and Stitcher, and this episode can be head on BlogTalkRadio.com here: http://www.blogtalkradio.com/wallachlaw/2014/10/10/final-words-last-statements-of-executed-inmates-with-marc-asnin-ray-krone

Tuesday, October 7, 2014

Californians Endorse Bipartisan Measure To Decrease Incarceration

According to a NY Times article captioned “California Voters to Decide on Sending Fewer Criminals to Prison”– Californians will soon have the opportunity to send less people to prisons. 

The author states:  Proposition 47, as it is called, would redefine thefts, forgery and other property crimes involving less than $950, and possession for personal use of drugs including heroin and cocaine, as misdemeanors — punishable by at most one year in a county jail, and often by probation and counseling. The changes would apply retroactively, lightening the penalties for thousands already in prison or jails.
Not only would many offenders avoid the crippling mark of a felony record, but the expected savings to the state government of up to a few hundred million dollars per year would be earmarked for mental health and substance abuse treatment, for counseling of potential school dropouts and for victim services, in hopes of breaking the cycle of crime. (Counties would also save several hundred million dollars annually, according the state legislative analyst.)

(note:  Rumor has it that the state legislative analyst will be an upcoming guest on Wallach on Law).

Thursday, October 2, 2014

Wallach On Law – The Kelly Report and The Need For Gun Legislation – Featuring Congress Person Robin Kelly

Wallach On LawThe Kelly Report and The Need For Gun Legislation – Featuring Congress Person Robin Kelly.  Congress Person Robin Kelly of the Second Congressional District of Illinois compiled “The Kelly Report” – a comprehensive analysis of gun violence in America with proposed recommendations.  She joins the show to discuss The Kelly Report, her efforts to obtain meaningful minimal arms restrictions, and what is keeping gun legislation from being brought before congress for consideration.  Wallach On Law can be heard on iTunes, YouTube, and Sticher, and this episode can be head on BlogTalkRadio.com here: http://www.blogtalkradio.com/wallachlaw/2014/10/02/the-kelly-report-gun-violence-in-america-with-congress-person-robin-kelly