Sentence First, Verdict Afterward

Or, Crime Doesn’t Pay

(at least not like it used to)

Having a lawyer on your blog means occasionally being subjected to Long Lawyer Stories, or Long Lawyer Rants on the state of the system. Today, you get a rant on the state of the criminal law system.

First of all, real life is not Perry Mason. Back when I was an academic for a couple of years, I did a paper on Perry Mason. The research was fascinating. For one thing, the sun never sets on Perry Mason. Somewhere in the world, in some language, at any given moment, Perry Mason is being broadcast or cablecast. Among the results are some profound changes in other people’s legal systems, most notably that of the Italians.

The Italians, like most of continental Europe and Latin America and Japan, have what is known as a civil law system, rather than the common law system that rules in the English-speaking countries. In a civil law system, criminal cases are prosecutor-driven, but the judge does his own investigating, and the defense attorney is a minor player. In a common law system, cases are supposed to be judge-driven, but the prosecutor and the defense do their own investigating and use the results to try to persuade the judge of their respective accuracy. What Perry Mason did for the Italians was push the defense attorney into a position of greater prominence and activity.

But what reality, over the same period, has done to the American legal system is turn it into a marketplace, in which the leading role is taken by the prosecutor. You guys may already have known this, but most Americans don’t—90+% of all criminal cases are resolved by plea bargain. No trials, no Perry Mason. When a criminal case does go to trial, that’s usually a sign that the plea bargain market has broken down, often due to inadequate information on one or both sides.

The market metaphor is not meant to imply that anybody is taking money under the table. So far as I know, that’s rare, and certainly not a necessary component of the system. But plea bargaining is just that—a bargaining process. One side (usually the prosecutor) makes an offer, the other side makes a counter-offer. Each side may introduce bits and pieces of information to weight the bargain to one side or the other. Eventually, the parties meet somewhere in the middle.

Another parallel to the economic marketplace is the defendant’s position on all this. If the defendant is in jail pending trial (because of inability to post bail, either because the bail is too high, or because he simply has no money at all), he is not only enduring the discomforts and dangers of the jail system, he is also making metaphorical deposits into a virtual account. That is, from any sentence he ends up being given, the time he has already served in pretrial confinement will be subtracted. (The old hands know this from the start; the newbies find it out quickly from the old hands.)

Which brings us to the major insanity of the system, which is taken for granted by both defendants and attorneys on both sides: if you plead guilty, you go free (immediately or pretty soon.) If you maintain your innocence, you can stay locked up for a very long time. Got that? If you’re guilty, you get out. If you’re innocent, you stay in.

Apparently the movie “American Violet” (“now playing in selected theaters,” according to its website) talks about this issue in some detail, and is also supposed to be a good movie.

This insanity in turn is based on an assumption which is pretty much universal in the law enforcement system, among cops and lawyers alike: if a suspect didn’t do whatever he has been arrested for doing, he has probably gotten away with something as bad or worse. This is a statistical approach to law enforcement, which is still in its developing phases. Eventually, I suspect, it will turn into a calculation that, since 75% (or whatever) of all criminal suspects are in fact guilty of the offense in question or something just as bad, a Bayesian system of justice will convict all suspects and cut all maximum sentences by 25%. As I think I’ve said in previous comments, what matters to cops and prosecutors is not necessarily that the right person be punished, but that the right kind of person be locked up.

Anyway, the impact of this system on habitual offenders is probably not what those who set it up had in mind. The average defendant is overjoyed to plead guilty to something slightly less heinous than the original charge, and “get off” with “time served” plus a few months. He considers this a “good deal.” His lawyer has told him it was a good deal. So has the prosecutor.

The judge’s role in this scenario is minimal, but in some ways the most heinous element of the whole thing. Because the judge is the one who asks the defendant to assert on the record that “no one has promised you anything in exchange for this plea.”

Mr. Wired once went through a legal proceeding in another state in which he was advised by his attorney to assert something in the trial, on the record, under oath, which everybody involved knew to be untrue. He was barely 20 at the time, and under a lot of pressure, so he did it. He still feels like a perjurer for having done so. Okay, maybe his conscience is more acute than most people’s, but isn’t that what the legal system is supposed to want?

In fact, most people (certainly including most of my clients) at one time or another get advised by various functionaries of The System to lie about something significant, in order not to gum up the works. The criminal courts are not even the most egregious instance. What these coerced falsehoods accomplish, aside from smoothing out the administrative process, is leave The System in a position to renege on any deal based on such lies, just by blowing the whistle. “Uh, gee, we didn’t know that Recruiter Sergeant Slick was going to tell the recruit to lie about his flat feet. We’ll court-martial both of them for recruiter fraud.” In short, infinite possibilities for blackmail.

A couple of peripheral notes about Perry Mason: good trial lawyers don’t do Perry Mason, they do Colombo (“help me out here, I’m confused. How is it that….?”) A trial lawyer who did Perry Mason would probably get successfully sued for malpractice.


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