Category Archives: Editorials/Opinion

I am not an attorney, but in my layman’s, non-legal opinion this is potentially (and I say only potentially) huge.

The US Ninth Circuit has advocated criminal perjury prosecution for a prosecutor who lied to the court.  See our previous post about lying federal prosecutors here – in this case, the offending prosecutor got off with just a stern rebuke by the judge, which is sadly typical.

The Ninth Circuit has “recommended” perjury prosecution for a prosecutor who lied about benefits offered to a jailhouse snitch for his testimony.  Incentivizing testimony from snitches is nothing new.  It happens routinely.  But think about this.  If a defense attorney offered benefits to a witness for their testimony, it would be bribery, and the attorney could be prosecuted.  If a prosecutor offers benefits to a witness (snitch), it’s called “cooperation.”  What’s wrong with this picture?!

Now, here’s the “catch” about the recent Ninth Circuit lying prosecutor incident. The case involves a prosecutor who lied while testifying under oath.  So, the big question in regard to this is – what happens if a prosecutor lies in court at times when he’s not actually testifying under oath?  As I said, I’m not an attorney, but one would think that, logically, lying in any capacity in any court proceeding would be considered perjury, but ….. sadly, “the law is not always logical, but the law is always the law.”

See the full Observer story on the Ninth Circuit action here.

We’ve previously reported on the Marissa Alexander case here.

This is one of the stupidest prosecutions I’ve seen in my years of doing this.  Angela Corey, the Florida State’s Attorney in the case, should be ashamed for setting such a shining example of prosecutors run amok.

Marissa fired a warning shot at her enraged and abusive husband, who had threatened to kill her, in fear for her life.  She was charged, tried and, despite the fact that Florida has it’s infamous “stand your ground” law, was convicted and originally sentenced to 20 years. She successfully appealed, and was facing a new trial — with a potential 60 year sentence.

Please see the Daily Kos story here.

                                                                                                        (Graphic:  The Veritas Initiative)

“97 percent of federal convictions and 94 percent of state convictions are the result of guilty pleas.” (USSC, Missouri vs. Frye, 2012)

Think about that for a minute — 19 out of 20 criminal cases never-go-to-trial.

These cases are disposed of through a guilty plea that resulted from a plea agreement.  The defendant never gets a trial, and goes directly to jail.

It’s called “plea bargaining,” but there is little-to-no actual bargaining that takes place.  A plea offer can be made even before the case goes to a grand jury, and the defendant has no idea how strong, or weak, the prosecutor’s case might be. The prosecutor has a very, very long list of often-overlapping charges to pick from that can be “stacked” to build a breathtakingly long anticipated sentence, which he can use to “bargain” (read threaten) with the defendant.  And the ability to “stack” is further augmented for charges that carry mandatory minimum sentences.  It’s pretty much a “take it or leave it” deal.  The ONLY bargaining power the defendant has is to refuse the plea offer, forcing the prosecutor to take the case to trial.  This is the genesis of the so-called “trial penalty,” which has been well covered on this blog here and here.  The defendant can take whatever the prosecutor offers, or expose himself to an exceedingly long sentence at trial.

In accepting a plea agreement, the defendant obviously gives up his constitutional right to a jury trial, but he may also have to give up his right to appeal, or to file civil suit, or to even talk about the case.  And then once convicted of a felony, there is a whole list of other collateral consequences as well.

Amelia Whaley is a JD candidate at the Duke University School of Law.  While working as an intern for the Center for Prosecutor Integrity, she wrote a paper summarizing the practice of plea bargaining as it exists today in the US.  I think it is just excellent, and is the best overall synopsis of plea bargaining I have seen. If you want to understand what plea bargaining is all about, and how it really works, please read Ms. Whaley’s paper here:  (paper temporarily taken down for edit by author)

If you’re interested in a little further reading, this article by Timothy Lynch at the Cato Institute, Cato – Plea Bargains, covers the 1978 US Supreme Court case (Bordenkircher v. Hayes) that established the precedent for plea bargaining – a case in which a man wound up in prison for life – for passing a bad $88 check.