Law Enforcement, Race and the Gun Culture – V

This post is the sixth in this series, if you count the Discussion post. I recommend that you read or re-read the earlier posts.

Part I is here, Part II is here, Part III is here, the Discussion is here and Part IV is here.

In my post entitled "Law Enforcement, Race and the Gun Culture – Discussion" I posted comments from two of my readers and my responses, but in looking back I see that I failed to quote one comment that I should not have overlooked, because it was very complimentary.

That comment came from Albert Nekimken of Vienna, Virginia and it read:

These are very hard-hitting, well-written blog posts. The malfunctioning of the grand jury system disturbs me the most.

Nekimken made this comment after my second post. He could not know that there are even worse things in our criminal justice system, than the failure of the “grand jury system.”

In my last post I discussed how prosecutors, instead of seeking justice as they are supposed to do, seek convictions regardless of guilt, and treat each conviction as though it were “another notch in their gunbelt." I pointed out that many innocent people are convicted, even though the prosecuting attorney has evidence in his possession highly probative of innocence, if not absolute proof thereof.

The stories of innocent people facing the nightmare of conviction and incarceration should chill the blood. The average reader will say ‘that couldn’t happen to me’. But it could! The numbers are astounding. But since numbers never seem to reach the conscience adequately, (they are cold statistics) I urge the reader to acquire and view the CNN documentary: “An Unreal Dream – The Michael Morton Story”. For information on that documentary, see here. This was a dramatic story, but it is not so different from so many others. I quote from CBS News: 

Morton's nightmare began in 1986, when his wife Christine was bludgeoned to death in their home in Austin, Texas. Despite no direct evidence linking him to the crime, he quickly became the prime suspect. At his trial, Williamson County District attorney Ken Anderson painted a picture of him as a violent, sexually depraved murderer who showed no remorse for his crime…

They literally pulled my son out of my arms, 'cause he was screaming for me. And, you know, the little hand is out. And ... he's being pulled away. And that was one of the worst parts…

For a short video on the case click here.

Unfortunately, the Supreme Court in the usual 5-4 decisions, actually reversed a decision granting another innocent man, who had served 14 years in prison an award of $14 million, $1 million for each year served. The Supreme Court held that he is entitled to - NOTHING.

But the injustices of our criminal justice system don’t stop there. In theory, one is innocent until proven guilty. But in practice that is hardly true. Pleading not guilty can be dangerous. There is an enormous penalty for insisting on a fair trial.

It is known as plea-bargaining and it is the method that prosecuting attorneys use to extort guilty pleas.

In a research paper on the subject entitled: “Plea and Charge Bargaining” the author finds:

In plea bargaining, a defendant is faced with a charge at arraignment. Typically this is the maximum charge or punishment that the defendant will be held to if he or she goes to trial. The prosecutors will present the defendant with an opportunity to plead guilty to a lesser charge or to the original charge with less than the maximum sentence.

What this means in practice is that defendants who plead guilty to the lesser charge, will get a lighter sentence, but if they chose to go to trial and are convicted, they will face the full penalty of “the maximum charge or punishment”.

This is a difficult choice to make. Going to trial is always a throw of the dice. It is impossible to predict with any kind of certainty, or even probability, what the outcome of a trial will be. It is “a throw of the dice”.

This is particularly true for the indigent or poor defendant who does not have access to highly competent counsel. It is even truer for those who cannot raise bail, and are incarcerated pending trial or other disposition. They might end up spending a year in jail pending trial, while if the charged offense is not that serious, a guilty plea might get them free in less time. The pressure to get out of jail, and/or to avoid the risk of long jail time is too great to make going to trial a plausible alternative.

Not surprisingly, the research paper cited above estimates that “about 90 to 95 percent of both federal and state court cases are resolved through this process” and that is confirmed by the website of a DA’s office in Texas where it is stated: "At least 90-plus percent of all criminal cases are disposed of by plea bargain agreements."

Not surprisingly the paper finds: “The majority of research on race and sentencing outcomes shows that blacks are less likely than whites to receive reduced pleas.”

The paper makes no attempt to explain this discrepancy, but I would suggest while in some cases racial prejudice may be a factor. More likely it is a question of economic status. It is logical to assume that those who have no difficulty raising bail and of hiring the best defense counsel are in a better bargaining position than the poor defendant, who the DA knows cannot put up a good defense at trial, and therefore there is less need to offer inducements for a guilty plea. As is well documented, Blacks are generally in a lower economic status than whites.

But where the injustice becomes even clearer is where accomplices get disparate sentences where one of them “cops a deal”, sometimes “called accomplice testimony. It's when a person involved in a crime agrees to testify against the other participants in exchange for a reduced plea.” See here. 

In effect this means that if one of the people charged agrees to give testimony in accordance with the prosecutors wishes, he gets a lighter sentence, which is quite an inducement to give such testimony, whether true or not. The DA gets his conviction, and one who may be guilty gets off with a light sentence, or even with probation.

It should be obvious that such testimony is highly dubious, and accordingly “New York law says that testimony of an accomplice, standing alone, is insufficient proof against the defendant.  There must be some form of corroboration that connects the defendant to the crime on top of the co-defendant testimony.” See here. But this is not true in other jurisdictions. Under “federal law… accomplice testimony is enough," (Ibid) and it varies from state to state.

According to the Cornell Law Review, Vol72:800 @p.802 (The link for this doesn’t work – For those who might want to go to the source, Google Cornell Law Review, Vol. 72:800 and then chose: "Accomplice Testimony Under Contingent Plea Agreements")

Accomplice plea agreements tend to produce unreliable testimony because they create an incentive for the accomplice to shift blame to the defendant or other co-conspirators. Further, an accomplice may wish to please the prosecutor to ensure lenient prosecution in his own case. Nevertheless, courts held that the testimony of accomplices who receive lenient treatment is not per se unreliable. Federal courts have allowed convictions based on uncorroborated testimony of accomplices to stand where the testimony is not “incredible or unsubstantiated on its face.” Convictions have been sustained even when the accomplice is an admitted perjurer.

How much this stacks the deck against the accused can bee seen from the fact that if counsel for the defense where to offer an inducement to a witness to testify on the defendants behalf, not nearly as beneficial as a lower sentence, or even probation, the attorney could be disbarred and prosecuted for subornation of perjury.

The deck is stacked against the accused in every way, and if the accused is indigent or poor, the likelihood of his being able to put up a proper defense, (with all the required investigations and the expenses involved therein) are dim indeed.

Comments, questions, or corrections are welcome, and will be responded to and distributed with attribution, unless the writer requests that he/she not be identified. However, please give your full name and the town and state in which you reside or have an office.