1 00:00:03,200 --> 00:00:05,480 Speaker 1: If you will place your left hand on the Bible 2 00:00:05,559 --> 00:00:08,960 Speaker 1: and raise your right hand, and please repeat after me, 3 00:00:09,200 --> 00:00:13,440 Speaker 1: and I do solemnly swear, then titled action find the 4 00:00:13,480 --> 00:00:16,840 Speaker 1: defendant guilty of the time. It makes no sense, it 5 00:00:16,880 --> 00:00:20,639 Speaker 1: doesn't fit. If it doesn't fit, you must aquit. We 6 00:00:20,720 --> 00:00:23,160 Speaker 1: all took the same of the office. We're all bound 7 00:00:23,320 --> 00:00:26,480 Speaker 1: by that common commitment to support and defend the Constitution, 8 00:00:26,760 --> 00:00:29,560 Speaker 1: to bear true faith in allegiance, to say that you 9 00:00:29,640 --> 00:00:32,680 Speaker 1: faithfully discharge the duties of our office. Do you solemnly 10 00:00:32,760 --> 00:00:35,760 Speaker 1: swear or affirm that the testimony you're about to give 11 00:00:35,800 --> 00:00:38,120 Speaker 1: will be the truth, the whole truth, and nothing but 12 00:00:38,200 --> 00:00:42,440 Speaker 1: the truth. From Tenderfoot TV and I Heart Radio, this 13 00:00:42,680 --> 00:00:51,839 Speaker 1: is sworn. I'm your host, Philip Holloway. Usually when I've 14 00:00:51,880 --> 00:00:54,720 Speaker 1: represented somebody that I believe was fully innocent, they were 15 00:00:54,760 --> 00:01:00,640 Speaker 1: normally found not guilty. But the very last trial I 16 00:01:00,760 --> 00:01:06,880 Speaker 1: had were three defendants who were charged with drug trafficking, 17 00:01:08,400 --> 00:01:13,280 Speaker 1: and one of them I knew was innocent. It wasn't 18 00:01:13,280 --> 00:01:16,600 Speaker 1: my client. My client without telling me he was guilty 19 00:01:16,680 --> 00:01:19,600 Speaker 1: or not guilty. He told me that the other guys 20 00:01:19,720 --> 00:01:22,959 Speaker 1: was innocent and that he felt terrible about it. He 21 00:01:23,080 --> 00:01:26,200 Speaker 1: had just asked him to go to lunch, and they 22 00:01:26,240 --> 00:01:29,480 Speaker 1: stopped by the drug house on the way to lunch. 23 00:01:30,959 --> 00:01:33,520 Speaker 1: So then the third guy's lawyer, he said, you know, 24 00:01:33,680 --> 00:01:36,280 Speaker 1: you know that defendant number two is innocent, don't you? 25 00:01:37,680 --> 00:01:40,880 Speaker 1: His client had told him. My client had told me. 26 00:01:41,520 --> 00:01:44,679 Speaker 1: Two family members who were closer to defend us one 27 00:01:44,720 --> 00:01:48,120 Speaker 1: and three told me that two was innocent. And plus, 28 00:01:48,160 --> 00:01:51,520 Speaker 1: having heard everything that happened, is not a doubt. My man, 29 00:01:51,760 --> 00:01:55,760 Speaker 1: the guy was innocent. But as bad luck would have it, 30 00:01:55,880 --> 00:02:01,160 Speaker 1: all three were convicted, and due to mandatory animum sentencing, 31 00:02:01,720 --> 00:02:05,280 Speaker 1: they all got twenty five years. And so at the 32 00:02:05,320 --> 00:02:08,720 Speaker 1: sentencing that J S YEA all ready for sentencing, I said, yeah, 33 00:02:08,760 --> 00:02:12,400 Speaker 1: but my client wants to be sentenced first. The only 34 00:02:12,440 --> 00:02:15,800 Speaker 1: thing my client said was that so and so was innocent. 35 00:02:16,600 --> 00:02:19,000 Speaker 1: He didn't ask for a lenient senate. My client didn't 36 00:02:19,040 --> 00:02:22,720 Speaker 1: ask for anything for himself. He just spoke on behalf 37 00:02:22,760 --> 00:02:25,680 Speaker 1: of the defendant number two. But you know, the jury 38 00:02:25,680 --> 00:02:28,799 Speaker 1: had just found him guilty, so they all three he 39 00:02:28,880 --> 00:02:43,480 Speaker 1: got twenty five years. That was Ray Geary, a retired 40 00:02:43,639 --> 00:02:47,320 Speaker 1: judge and defense attorney. Ray helped inspire me to enter 41 00:02:47,360 --> 00:02:50,960 Speaker 1: private practice nearly two decades ago. And taught me a 42 00:02:51,080 --> 00:02:53,920 Speaker 1: great many things that I now know about running a 43 00:02:54,000 --> 00:02:58,680 Speaker 1: law practice. That story about Ray's last case features heavily 44 00:02:58,840 --> 00:03:02,680 Speaker 1: the use of mand tory minimum sentencing, the topic of 45 00:03:02,720 --> 00:03:06,760 Speaker 1: this episode. A mandatory minimum sentence is an amount of 46 00:03:06,880 --> 00:03:10,359 Speaker 1: prison time that someone is required by law to serve 47 00:03:10,480 --> 00:03:15,000 Speaker 1: for a particular crime. These laws are enacted by legislatures, 48 00:03:15,040 --> 00:03:18,720 Speaker 1: and they make the legislatures rather than judges, responsible for 49 00:03:18,880 --> 00:03:22,280 Speaker 1: sentencing in a given case. There is a lot of 50 00:03:22,320 --> 00:03:26,080 Speaker 1: debate about mandatory minimum prison sentencing in the United States 51 00:03:26,240 --> 00:03:29,760 Speaker 1: right now, and there is also a push for legislative 52 00:03:29,800 --> 00:03:33,080 Speaker 1: reform that we see taking place around the US involving 53 00:03:33,200 --> 00:03:37,440 Speaker 1: mandatory minimum sentencing. The first person we spoke to about 54 00:03:37,480 --> 00:03:42,520 Speaker 1: this was Kevin Ring. My name is Kevin Ring, and 55 00:03:42,560 --> 00:03:46,240 Speaker 1: I currently serve as president of FAN formerly Families Against 56 00:03:46,240 --> 00:03:52,520 Speaker 1: Mandatory Minimums. Fam is a national criminal justice reform organization 57 00:03:52,600 --> 00:03:58,200 Speaker 1: that's been around since Dedicated to the idea not controversial. 58 00:03:58,200 --> 00:04:00,960 Speaker 1: We think that the punishment should fit the crime, that 59 00:04:01,040 --> 00:04:04,280 Speaker 1: people should be sentences individuals for whatever crimes they commit, 60 00:04:04,760 --> 00:04:08,640 Speaker 1: and that judges should have the authority to passion sentences 61 00:04:08,680 --> 00:04:13,880 Speaker 1: that fit each crime. Usually Congress or a state legislature 62 00:04:14,440 --> 00:04:17,440 Speaker 1: will say for a certain crime, anybody who violates it 63 00:04:17,480 --> 00:04:19,440 Speaker 1: can get up to five years or up to ten 64 00:04:19,520 --> 00:04:24,400 Speaker 1: years in prison. A mandatory minimum will say this person 65 00:04:24,440 --> 00:04:28,960 Speaker 1: gets up to ten years, but no less than five years, 66 00:04:28,960 --> 00:04:32,520 Speaker 1: so they set a floor under which a judge can't 67 00:04:32,560 --> 00:04:35,400 Speaker 1: go even if they think the facts and circumstances of 68 00:04:35,480 --> 00:04:39,359 Speaker 1: the case warranted. In the federal system, this is usually 69 00:04:39,360 --> 00:04:43,479 Speaker 1: done with drugs. If you traffic five grams of math 70 00:04:43,560 --> 00:04:47,800 Speaker 1: and fetamine, you get a five year mandatory minimum. That 71 00:04:47,880 --> 00:04:50,120 Speaker 1: means it doesn't matter if you were the kingpin, the 72 00:04:50,160 --> 00:04:54,680 Speaker 1: logo and the total pole. The five gram trigger requires 73 00:04:54,720 --> 00:04:57,720 Speaker 1: a five year mandatory minimum prison sentence. So it's different 74 00:04:57,760 --> 00:05:00,760 Speaker 1: in other sentences that don't carry these man tory penalties 75 00:05:01,120 --> 00:05:04,440 Speaker 1: in that a judge loses discretion and once you're convictive 76 00:05:04,480 --> 00:05:08,919 Speaker 1: of crime, the punishment is automatic. I was a Capitol 77 00:05:08,960 --> 00:05:13,800 Speaker 1: Hill staffer in the early nineties. I was just like 78 00:05:13,920 --> 00:05:18,599 Speaker 1: everybody else, twentysomething year old who knew nothing but thought 79 00:05:18,600 --> 00:05:24,520 Speaker 1: I knew everything. I was a Republican conservative in my 80 00:05:24,680 --> 00:05:29,279 Speaker 1: ideology matched that of the leaders at the time. Crime 81 00:05:29,360 --> 00:05:32,000 Speaker 1: is out of control in the way to solve it 82 00:05:32,040 --> 00:05:35,440 Speaker 1: is to throw the book at people. There weren't a 83 00:05:35,440 --> 00:05:38,040 Speaker 1: lot of studies about mandatory minimums at the time because 84 00:05:38,040 --> 00:05:41,920 Speaker 1: they had just come back into vogue in the mid eighties. 85 00:05:42,839 --> 00:05:45,440 Speaker 1: So we knew the prison population was rising, but crime 86 00:05:45,560 --> 00:05:48,360 Speaker 1: was falling, and so that did not dissuade us from 87 00:05:48,400 --> 00:05:51,560 Speaker 1: thinking that this was a good answer. It was my 88 00:05:51,760 --> 00:05:55,159 Speaker 1: turn to write a bill dealing with methamphetamine, which was 89 00:05:55,200 --> 00:06:00,400 Speaker 1: now becoming a very aggressive drug across the country. I said, well, 90 00:06:00,440 --> 00:06:02,280 Speaker 1: here's the answer. Then we'll just make the penalties for 91 00:06:02,360 --> 00:06:06,000 Speaker 1: methymphetamine the same as they were for crack. We didn't 92 00:06:06,000 --> 00:06:08,840 Speaker 1: have any hearings, We didn't bring anybody in and say, well, 93 00:06:08,839 --> 00:06:11,040 Speaker 1: what's going to be the real world impact of this. 94 00:06:11,800 --> 00:06:14,719 Speaker 1: What's it going to do to our incarceration rate? If 95 00:06:14,760 --> 00:06:17,720 Speaker 1: we spend more on prisons for even low level of enders, 96 00:06:18,040 --> 00:06:21,080 Speaker 1: are we gonna have fewer police and prosecutors? Is this 97 00:06:21,200 --> 00:06:24,760 Speaker 1: the best use of our anti crime resources. There was 98 00:06:24,800 --> 00:06:27,279 Speaker 1: no study involved at all. We just knew it would 99 00:06:27,279 --> 00:06:31,160 Speaker 1: be politically popular to say meth is dangerous and scary, 100 00:06:31,480 --> 00:06:34,760 Speaker 1: so let's just ratchet up the penalties. I was part 101 00:06:34,760 --> 00:06:37,520 Speaker 1: of that process. I helped draft that bill. It passed 102 00:06:37,520 --> 00:06:41,160 Speaker 1: through Congress and I think it did a lot of damage. 103 00:06:41,640 --> 00:06:44,920 Speaker 1: It tied judges hands now in a new area with methamphetamine, 104 00:06:45,000 --> 00:06:48,520 Speaker 1: just as it was in all these other drugs. In 105 00:06:48,560 --> 00:06:51,720 Speaker 1: some ways, I've switched sides, but I can't even say 106 00:06:51,720 --> 00:06:55,000 Speaker 1: that my position before was well informed. I was just 107 00:06:55,040 --> 00:06:57,800 Speaker 1: somebody who believed the tough on crime line that if 108 00:06:57,800 --> 00:06:59,719 Speaker 1: there's a problem, the way to get rid of it 109 00:06:59,760 --> 00:07:06,359 Speaker 1: is to punished the heck out of it. Mandatory sentences 110 00:07:06,360 --> 00:07:09,480 Speaker 1: have been around since the beginning of the country. It 111 00:07:09,600 --> 00:07:13,640 Speaker 1: tends to track whatever the crime to juror was. The 112 00:07:13,680 --> 00:07:17,480 Speaker 1: first ones were like piracy. When Robert F. Kennedy is 113 00:07:17,960 --> 00:07:21,120 Speaker 1: murdered after the California primary, the next day they passed 114 00:07:21,120 --> 00:07:24,800 Speaker 1: one about guns, a couple of things happened. There were 115 00:07:24,840 --> 00:07:27,440 Speaker 1: real responses to crime. Sometimes it was a moral panic. 116 00:07:27,520 --> 00:07:30,120 Speaker 1: Sometimes it was a legitimate fear that crime was out 117 00:07:30,120 --> 00:07:32,800 Speaker 1: of control, and they felt obligated to do something to 118 00:07:32,880 --> 00:07:35,880 Speaker 1: look like they were being responsive. There was a period 119 00:07:35,920 --> 00:07:40,120 Speaker 1: in the seventies where lawmakers lost faith and judges. They 120 00:07:40,160 --> 00:07:43,080 Speaker 1: saw too many judges giving people what they thought were 121 00:07:43,120 --> 00:07:45,960 Speaker 1: slaps on the wrist for serious offenses, and they thought 122 00:07:46,040 --> 00:07:50,400 Speaker 1: they couldn't be trusted anymore. Legislators started taking that power away, 123 00:07:50,400 --> 00:07:53,360 Speaker 1: and then they thought it was politically popular to do. 124 00:07:53,440 --> 00:07:56,040 Speaker 1: So what they want to be able to do is 125 00:07:56,160 --> 00:07:58,680 Speaker 1: run for office and say, not only do I care 126 00:07:58,720 --> 00:08:01,480 Speaker 1: about public safety and I want to crack down on 127 00:08:01,760 --> 00:08:05,640 Speaker 1: drug dealers or child pornographers or d u I s 128 00:08:05,720 --> 00:08:08,559 Speaker 1: whatever it is. I can show my commitment by saying 129 00:08:08,600 --> 00:08:11,200 Speaker 1: I think everybody who commits that crime should get this 130 00:08:11,280 --> 00:08:16,640 Speaker 1: stiff punishment. The problem is they always write the penalty 131 00:08:16,720 --> 00:08:20,680 Speaker 1: for sort of the worst case scenario and don't contemplate 132 00:08:20,720 --> 00:08:22,360 Speaker 1: the fact that there's going to be some facts and 133 00:08:22,400 --> 00:08:26,000 Speaker 1: circumstances that might meet the technical definition of that crime, 134 00:08:26,320 --> 00:08:31,280 Speaker 1: but don't warrant that stiff punishment. I think it arose, 135 00:08:31,760 --> 00:08:34,320 Speaker 1: like all things, out of good faith, not malice. I 136 00:08:34,360 --> 00:08:37,640 Speaker 1: think people were well intentioned and believing that we needed 137 00:08:37,640 --> 00:08:39,920 Speaker 1: to get serious about crime. It's just turned out to 138 00:08:40,000 --> 00:08:43,800 Speaker 1: be a very destructive and ineffective tool. As Kevin is 139 00:08:43,880 --> 00:08:47,480 Speaker 1: someone involved in the legislative side of the legal system, 140 00:08:47,800 --> 00:08:51,320 Speaker 1: I asked him who he sees as the biggest advocates 141 00:08:51,360 --> 00:08:58,160 Speaker 1: for mandatory minimum prison sentences. Usually the most aggressive advocates 142 00:08:58,160 --> 00:09:03,880 Speaker 1: for mandatory minimums are prosecutors and their prosecutors associations and 143 00:09:04,040 --> 00:09:08,360 Speaker 1: unions that tend to lobby legislatures and are very powerful. 144 00:09:09,400 --> 00:09:12,679 Speaker 1: It gives them enormous leverage. It makes their job easier 145 00:09:12,679 --> 00:09:15,319 Speaker 1: when they can go into a plea negotiation and say, 146 00:09:15,559 --> 00:09:17,880 Speaker 1: if you don't plead guilty and give me everything I want, 147 00:09:18,160 --> 00:09:19,920 Speaker 1: I'm going to make sure you get fifteen or twenty 148 00:09:20,000 --> 00:09:23,959 Speaker 1: years in prison. If a prosecutor went to a defendant 149 00:09:24,000 --> 00:09:26,720 Speaker 1: and said, I want you to not only plead guilty, 150 00:09:26,800 --> 00:09:30,079 Speaker 1: but testify in exactly the way I want, or I'll 151 00:09:30,080 --> 00:09:33,040 Speaker 1: break your arm, no one would have a problem seeing 152 00:09:33,040 --> 00:09:36,760 Speaker 1: the ethical dilemma raised by that. But when a prosecutor 153 00:09:36,800 --> 00:09:38,760 Speaker 1: says do what I want or I'm gonna put you 154 00:09:38,800 --> 00:09:41,480 Speaker 1: in prison for twenty years, which is much more severe 155 00:09:41,520 --> 00:09:44,559 Speaker 1: than breaking someone's arm, we treat that as a normal 156 00:09:44,600 --> 00:09:49,679 Speaker 1: part of the process. So this negotiating technique by prosecutors, 157 00:09:50,000 --> 00:09:52,360 Speaker 1: that one where they tell people that if they don't 158 00:09:52,559 --> 00:09:56,080 Speaker 1: plead out that they will increase the charge to something 159 00:09:56,320 --> 00:09:59,600 Speaker 1: with a mandatory minimum. Well, that is what we call 160 00:10:00,040 --> 00:10:03,400 Speaker 1: the trial tax. This is one of the hidden costs 161 00:10:03,480 --> 00:10:07,160 Speaker 1: associated with going to trial. We'll cover this more in 162 00:10:07,280 --> 00:10:11,400 Speaker 1: detail later in this episode. Prosecutors say that these are 163 00:10:11,400 --> 00:10:15,480 Speaker 1: helpful because it allows them to coerce people into giving 164 00:10:15,559 --> 00:10:19,040 Speaker 1: up higher ups. The problem is they're usually used against 165 00:10:19,320 --> 00:10:22,520 Speaker 1: the higher ups in a way to go down. The 166 00:10:22,600 --> 00:10:24,360 Speaker 1: higher up will come in because they have all the 167 00:10:24,400 --> 00:10:26,920 Speaker 1: information and they can say, get me out from under 168 00:10:26,960 --> 00:10:30,000 Speaker 1: this mandatory minimum. I'll give up everybody below me. And 169 00:10:30,040 --> 00:10:32,200 Speaker 1: it's the poor sucker on the bottom who has no 170 00:10:32,280 --> 00:10:37,120 Speaker 1: information to give up who gets stuck with the mandatory minimum. 171 00:10:37,120 --> 00:10:38,960 Speaker 1: A defendant has to think, do I really want to 172 00:10:39,040 --> 00:10:41,920 Speaker 1: risk a trial? Because if I do and I'm found 173 00:10:41,920 --> 00:10:45,480 Speaker 1: guilty and there's a mandatory minimum attached, no matter what 174 00:10:45,520 --> 00:10:48,439 Speaker 1: the judge thinks, he or she will have no discretion 175 00:10:48,480 --> 00:10:50,720 Speaker 1: to fashion a sentence that fits me. They'll have to 176 00:10:50,720 --> 00:10:54,200 Speaker 1: go with that mandatory sentence. But we want judges to 177 00:10:54,200 --> 00:10:56,760 Speaker 1: have control over punishment again, so that it can be 178 00:10:56,800 --> 00:11:00,640 Speaker 1: tailored to you know, what really happened, and just some 179 00:11:01,559 --> 00:11:05,520 Speaker 1: arbitrary standard that was set by politicians who know nothing 180 00:11:05,559 --> 00:11:08,360 Speaker 1: about this defendant or this crime, but who wrote the 181 00:11:08,360 --> 00:11:11,880 Speaker 1: mandatory minimum maybe ten twenty years ago and couldn't have 182 00:11:11,960 --> 00:11:16,920 Speaker 1: foreseen this particular instance. As Kevin mentioned, the most vocal 183 00:11:17,000 --> 00:11:21,920 Speaker 1: advocates in favor of mandatory minimum sentences are prosecutors. As 184 00:11:21,960 --> 00:11:25,240 Speaker 1: a former prosecutor myself, I have seen that these laws 185 00:11:25,400 --> 00:11:28,720 Speaker 1: can do more harm than good. But I wanted to 186 00:11:28,760 --> 00:11:31,280 Speaker 1: see if there were benefits to these laws that I 187 00:11:31,360 --> 00:11:34,559 Speaker 1: might be overlooking. So I talked with my friend and colleague, 188 00:11:34,600 --> 00:11:38,079 Speaker 1: Assistant district Attorney Jesse Evans, to see what he thought 189 00:11:38,080 --> 00:11:40,960 Speaker 1: about them as a prosecutor and how he uses them 190 00:11:41,080 --> 00:11:45,960 Speaker 1: when he is charging defendants. So the debate about mandatory 191 00:11:45,960 --> 00:11:47,760 Speaker 1: minimums is not a new one. It's been going on 192 00:11:47,880 --> 00:11:50,959 Speaker 1: for a long long time within the criminal justice system. 193 00:11:51,000 --> 00:11:53,360 Speaker 1: On the positive side of things, particularly when you have 194 00:11:53,360 --> 00:11:55,920 Speaker 1: a very serious offense and we want to make sure 195 00:11:56,000 --> 00:11:59,400 Speaker 1: that that's dealt with appropriately. We don't want to get 196 00:11:59,440 --> 00:12:01,439 Speaker 1: to the situation sation where say a person doesn't accept 197 00:12:01,480 --> 00:12:04,600 Speaker 1: responsibility for what they did, they insist on having a trial, 198 00:12:04,800 --> 00:12:06,480 Speaker 1: and suddenly they're able to get a slap on the 199 00:12:06,520 --> 00:12:09,280 Speaker 1: wrist for their armed robbery or serious violent felony, or 200 00:12:09,280 --> 00:12:13,440 Speaker 1: even drug trafficking or something like that. That's kind of 201 00:12:13,480 --> 00:12:17,559 Speaker 1: the thought behind why mandatory minimums are good. It not 202 00:12:17,600 --> 00:12:20,720 Speaker 1: only gives some certainty to us within the criminal justice 203 00:12:20,720 --> 00:12:22,600 Speaker 1: system of what we know the outcome is going to be, 204 00:12:23,640 --> 00:12:25,880 Speaker 1: It also quite frankly, gives us some leverage, for lack 205 00:12:25,920 --> 00:12:27,720 Speaker 1: of a better term, to be able to talk to 206 00:12:27,840 --> 00:12:31,000 Speaker 1: a criminal defendant through his attorney from the prosecutor's perspective 207 00:12:31,000 --> 00:12:32,800 Speaker 1: and say, look, we need to talk about whether we 208 00:12:32,800 --> 00:12:35,480 Speaker 1: can negotiate this case, because if not, we know what 209 00:12:35,520 --> 00:12:37,320 Speaker 1: the consequences are going to be. This is what you're 210 00:12:37,360 --> 00:12:41,320 Speaker 1: gonna be facing based on the mandatory sendency. That's the 211 00:12:41,360 --> 00:12:43,240 Speaker 1: one side of the coin. The other side of the coin, 212 00:12:43,320 --> 00:12:45,440 Speaker 1: I think is a correct side that mandatory minimums are 213 00:12:45,440 --> 00:12:48,800 Speaker 1: not always good. We within the criminal justice system might 214 00:12:48,840 --> 00:12:51,920 Speaker 1: be surprised to hear this, especially coming from seasoned prosecutor 215 00:12:52,600 --> 00:12:56,040 Speaker 1: are not always in favor of them. There are oftentimes 216 00:12:56,080 --> 00:12:59,520 Speaker 1: where a mandatory minimum sentence actually frustrates our ability to 217 00:12:59,559 --> 00:13:02,680 Speaker 1: get k is resolved rather than fosters our ability to 218 00:13:02,720 --> 00:13:07,280 Speaker 1: get cases resolved. Those consequences that are mandated by this 219 00:13:07,320 --> 00:13:10,600 Speaker 1: mandatory minimum are sort of inflicted on the case, for 220 00:13:10,679 --> 00:13:12,560 Speaker 1: lack of a better term, and because of that, we're 221 00:13:12,559 --> 00:13:14,600 Speaker 1: not able to get to a point where we can 222 00:13:14,760 --> 00:13:18,720 Speaker 1: resolve it. The push the modern day move within the 223 00:13:18,720 --> 00:13:21,040 Speaker 1: criminal justice system, which I feel is actually a very 224 00:13:21,040 --> 00:13:23,240 Speaker 1: good one, is the idea that we're going to give 225 00:13:23,240 --> 00:13:27,080 Speaker 1: more discretion to the stakeholders, to the court, to the prosecutors, 226 00:13:27,120 --> 00:13:30,000 Speaker 1: to the defense attorneys, and ultimately to victims of crimes 227 00:13:30,000 --> 00:13:33,040 Speaker 1: as well, because now everybody gets to say in it. 228 00:13:34,280 --> 00:13:37,160 Speaker 1: I've heard that said before that the prosecutors control what 229 00:13:37,200 --> 00:13:40,000 Speaker 1: the charges are. I'll step back from that a little 230 00:13:40,000 --> 00:13:42,080 Speaker 1: bit and say this, the facts really to dictate what 231 00:13:42,160 --> 00:13:44,959 Speaker 1: the charges are going to be. And ultimately, if what 232 00:13:45,040 --> 00:13:47,000 Speaker 1: I bring a case to court where the facts don't 233 00:13:47,120 --> 00:13:50,079 Speaker 1: bear out, for example, on arm robbery versus a robbery, 234 00:13:50,440 --> 00:13:52,360 Speaker 1: the state's gonna get dinged on that because we have 235 00:13:52,520 --> 00:13:55,560 Speaker 1: missed an element of proof that factually is required before 236 00:13:55,600 --> 00:13:59,600 Speaker 1: we can bring those charges. That said, I understand why 237 00:14:00,080 --> 00:14:03,199 Speaker 1: is that judges might express some frustration about their hands 238 00:14:03,200 --> 00:14:05,480 Speaker 1: being tied when they have mandatory minimums, and I think 239 00:14:05,480 --> 00:14:07,400 Speaker 1: that's why there's been a real push that's certainly been 240 00:14:07,400 --> 00:14:11,120 Speaker 1: the case in Georgia to allow for a downward departure 241 00:14:11,280 --> 00:14:15,959 Speaker 1: or downward deviation under some circumstances. Say you have the 242 00:14:16,080 --> 00:14:18,719 Speaker 1: arm robber who's on a spree goes in guns a 243 00:14:18,800 --> 00:14:22,560 Speaker 1: blazing into a bank. That's a very serious offense. Tenure 244 00:14:22,600 --> 00:14:25,120 Speaker 1: mandatory minimum may not be enough for that guy. Now, 245 00:14:25,280 --> 00:14:27,240 Speaker 1: say you have that scenario where you have a person 246 00:14:27,280 --> 00:14:29,920 Speaker 1: that walks in and using their coat and their finger 247 00:14:30,040 --> 00:14:32,600 Speaker 1: to act like they have a gun and they take 248 00:14:32,640 --> 00:14:35,480 Speaker 1: a bag of chips because the guy is homeless, that's 249 00:14:35,480 --> 00:14:37,880 Speaker 1: an arm robbery to both of them are facing the 250 00:14:37,960 --> 00:14:40,520 Speaker 1: same mandatory minimum. But I think we would all agree 251 00:14:40,560 --> 00:14:44,480 Speaker 1: that those are two different factual scenarios. The change in 252 00:14:44,520 --> 00:14:47,480 Speaker 1: the law would basically allow us now to say, when 253 00:14:47,480 --> 00:14:50,480 Speaker 1: this prosecutor the defense, with the approval of the judge, 254 00:14:50,520 --> 00:14:52,640 Speaker 1: says we're gonna let them plead an arm robbery, but 255 00:14:52,680 --> 00:14:54,760 Speaker 1: we want to go less than that ten years, there's 256 00:14:54,760 --> 00:14:56,480 Speaker 1: a mechanism to be able to do so, and that's 257 00:14:56,520 --> 00:15:00,040 Speaker 1: not a bad thing. Otherwise, what we had his the 258 00:15:00,040 --> 00:15:01,800 Speaker 1: wordical we've been forced to do is to come up 259 00:15:01,800 --> 00:15:03,680 Speaker 1: with sort of a legal fiction. Well, we know it's 260 00:15:03,720 --> 00:15:06,360 Speaker 1: an armed robbery, Mr. Guy who comes and using your 261 00:15:06,360 --> 00:15:08,920 Speaker 1: finger as a gun. But at the same time, because 262 00:15:08,960 --> 00:15:10,920 Speaker 1: we wanted apart from the mandatory minium, we're going to 263 00:15:11,000 --> 00:15:13,720 Speaker 1: call it something that it's not like an aggravator assault 264 00:15:13,840 --> 00:15:16,960 Speaker 1: or in a robbery or something like that. The problem 265 00:15:17,000 --> 00:15:18,840 Speaker 1: with that is when you get a conviction of a 266 00:15:18,880 --> 00:15:22,240 Speaker 1: different offense, it could very well impact recitivious punishment down 267 00:15:22,240 --> 00:15:24,640 Speaker 1: the road if the person commits another crime, because now 268 00:15:24,760 --> 00:15:27,360 Speaker 1: they don't fall under that statute neatly where we can 269 00:15:27,400 --> 00:15:31,640 Speaker 1: insist on the higher punishment. There's another important factor that 270 00:15:31,720 --> 00:15:34,000 Speaker 1: maybe we haven't yet talked about, which is a component 271 00:15:34,040 --> 00:15:37,880 Speaker 1: of and that's the victim and victim's rights. I understand 272 00:15:37,920 --> 00:15:41,920 Speaker 1: why from a legislative perspective, when that victim tells the 273 00:15:42,000 --> 00:15:45,160 Speaker 1: police officer, hey, this guy put a gun in my 274 00:15:45,240 --> 00:15:48,480 Speaker 1: face and took something from me, that armed robbery needs 275 00:15:48,480 --> 00:15:52,760 Speaker 1: to be dealt with extremely seriously. It's certainly understandable from 276 00:15:52,760 --> 00:15:55,320 Speaker 1: my perspective as to why a legislature might want to 277 00:15:55,320 --> 00:15:57,880 Speaker 1: say there needs to be be a mandatory minimum when that happens. 278 00:15:57,920 --> 00:15:59,960 Speaker 1: Because if it's your loved one, your wife, you're a 279 00:16:00,080 --> 00:16:03,920 Speaker 1: kid that suffered and been victimized from that crime. Starting 280 00:16:03,920 --> 00:16:06,320 Speaker 1: with the proposition that we're gonna treat that more seriously 281 00:16:06,360 --> 00:16:09,200 Speaker 1: than where somebody just merely punched a battery makes sense 282 00:16:09,200 --> 00:16:30,760 Speaker 1: to me. After hearing from Jesse and Kevin, I also 283 00:16:30,800 --> 00:16:34,560 Speaker 1: wanted to get a judge's perspective on mandatory minimum sentences 284 00:16:34,880 --> 00:16:37,600 Speaker 1: and how these laws may affect the judge's work when 285 00:16:37,680 --> 00:16:40,480 Speaker 1: it comes to sentencing, as well as the overseeing of 286 00:16:40,520 --> 00:16:45,440 Speaker 1: criminal trials. We heard from Federal District Judge Jed Rakoff 287 00:16:45,520 --> 00:16:49,960 Speaker 1: back in episode one regarding eyewitness testimony, but Judge Rakoff 288 00:16:50,120 --> 00:16:53,160 Speaker 1: is perhaps best known for his work studying and speaking 289 00:16:53,160 --> 00:16:59,760 Speaker 1: out about mandatory minimum sentencing. I am a deep believer 290 00:17:00,600 --> 00:17:05,680 Speaker 1: that just sense requires a judge to get deeply into 291 00:17:05,720 --> 00:17:08,960 Speaker 1: the facts, the facts of the crime, the facts of 292 00:17:09,200 --> 00:17:13,280 Speaker 1: the criminal, the facts of the victims, and to do 293 00:17:13,560 --> 00:17:18,240 Speaker 1: the very difficult and often agonizing, but careful job of 294 00:17:18,280 --> 00:17:23,600 Speaker 1: figuring out what sends makes sense. Mandatory minimums, of course, 295 00:17:23,720 --> 00:17:28,840 Speaker 1: prevent you from doing that whatsoever. But even the sentencing guidelines, 296 00:17:28,920 --> 00:17:33,200 Speaker 1: which in the federal system are no longer mandatory, they 297 00:17:33,280 --> 00:17:40,240 Speaker 1: emphasize certain factors hugely an excess of other factors. I 298 00:17:40,240 --> 00:17:43,639 Speaker 1: would go back to the system that it persisted in 299 00:17:43,720 --> 00:17:47,879 Speaker 1: this nation for nearly two hundred years, which was we 300 00:17:48,040 --> 00:17:51,000 Speaker 1: leave it to the good sense of the judge, and 301 00:17:51,040 --> 00:17:53,440 Speaker 1: we encourage our judges to do a lot of work 302 00:17:53,480 --> 00:17:58,240 Speaker 1: before they impose sense. People will say to me, but 303 00:17:58,320 --> 00:18:00,440 Speaker 1: why do you trust judges? And I say, I don't 304 00:18:00,440 --> 00:18:03,399 Speaker 1: trust anyone. I'd rather have a good system, though, and 305 00:18:03,440 --> 00:18:05,959 Speaker 1: I think the best system is one of checks and balances. 306 00:18:06,720 --> 00:18:10,320 Speaker 1: The legislature gives wide discretion for what charges you can 307 00:18:10,359 --> 00:18:14,080 Speaker 1: bring and what the punishments can be. The prosecutor brings 308 00:18:14,119 --> 00:18:16,600 Speaker 1: the charges after looking at the facts of a case. 309 00:18:17,160 --> 00:18:21,080 Speaker 1: The judge then issues a sentence that makes sense, and 310 00:18:21,119 --> 00:18:23,640 Speaker 1: then that sentence can be appealed if it's too severe 311 00:18:23,720 --> 00:18:26,359 Speaker 1: or too lenient, and an appeals court can get a 312 00:18:26,400 --> 00:18:29,520 Speaker 1: whack at it. But it's like an editing process. The 313 00:18:29,600 --> 00:18:32,359 Speaker 1: more eyes that look at it, the more likely you 314 00:18:32,400 --> 00:18:37,040 Speaker 1: are to get things right. This is Kevin Ring. I've 315 00:18:37,119 --> 00:18:40,080 Speaker 1: been to prison myself. I was a federal lobbyist in 316 00:18:40,080 --> 00:18:44,800 Speaker 1: our firm, came under scrutiny. I cooperated for two years. 317 00:18:45,200 --> 00:18:48,200 Speaker 1: The government ultimately wanted me to say things that I 318 00:18:48,200 --> 00:18:51,200 Speaker 1: thought were untruthful and to incriminate others in a way 319 00:18:51,200 --> 00:18:53,919 Speaker 1: that I thought was untruthful. So we just had a 320 00:18:53,960 --> 00:18:56,960 Speaker 1: disagreement about it. And when they try to get me 321 00:18:57,000 --> 00:18:59,879 Speaker 1: to plead guilty and cooperate, they sat me down for 322 00:19:00,000 --> 00:19:04,320 Speaker 1: what's called a reverse proffer. Usually proffers when a defendant 323 00:19:04,320 --> 00:19:06,119 Speaker 1: comes in and says, here's everything I know is that 324 00:19:06,320 --> 00:19:10,200 Speaker 1: useful to you reverse proffers. When the government says, here's 325 00:19:10,240 --> 00:19:13,720 Speaker 1: everything we have against you, think about that carefully before 326 00:19:13,760 --> 00:19:17,359 Speaker 1: you make your plea decision. Well, with me, they brought 327 00:19:17,400 --> 00:19:19,480 Speaker 1: me in and they said, after two years of cooperating 328 00:19:19,480 --> 00:19:22,399 Speaker 1: and other evidence gathering, here's what we have against you. 329 00:19:23,560 --> 00:19:27,439 Speaker 1: If you plead and cooperate, will charge you with these things. 330 00:19:27,800 --> 00:19:30,880 Speaker 1: And if you don't and you go to trial, will 331 00:19:30,960 --> 00:19:34,560 Speaker 1: charge you with all of these different crimes. I just 332 00:19:34,640 --> 00:19:37,680 Speaker 1: couldn't say what they wanted me to say. I would 333 00:19:37,680 --> 00:19:40,080 Speaker 1: have been lying on the stand against people that I 334 00:19:40,160 --> 00:19:45,000 Speaker 1: cared about. But what made it somewhat easier was the 335 00:19:45,080 --> 00:19:48,480 Speaker 1: idea that, unlike maybe some poor kid who's on the 336 00:19:48,480 --> 00:19:52,280 Speaker 1: street corner and being threatened with a twenty year mandatory 337 00:19:52,320 --> 00:19:55,800 Speaker 1: minimum sentence, I knew that if I had my day 338 00:19:55,800 --> 00:19:58,479 Speaker 1: in court, that if a judge hurt all the facts 339 00:19:58,480 --> 00:20:02,040 Speaker 1: and circumstances, he or she would conclude is my judge 340 00:20:02,040 --> 00:20:04,320 Speaker 1: did at the end of two trials that I was 341 00:20:04,400 --> 00:20:07,959 Speaker 1: not who the prosecutor said I was. I didn't know 342 00:20:07,960 --> 00:20:09,679 Speaker 1: how it was going to end. I was very nervous, 343 00:20:09,840 --> 00:20:13,080 Speaker 1: very worried because I had two young daughters. If I 344 00:20:13,160 --> 00:20:15,720 Speaker 1: had been facing a mandatory minimum. It would have made 345 00:20:15,720 --> 00:20:19,919 Speaker 1: the decision a hundred times tougher. I'd like to think 346 00:20:20,080 --> 00:20:24,280 Speaker 1: that I would have kept my integrity and pled according 347 00:20:24,320 --> 00:20:26,679 Speaker 1: to the truth, but it would have been much harder. 348 00:20:28,080 --> 00:20:31,560 Speaker 1: Prison is it's a necessary evil, but people forget how 349 00:20:31,600 --> 00:20:33,560 Speaker 1: evil it is. And so even though I was in 350 00:20:33,680 --> 00:20:37,439 Speaker 1: you know, a low security facility, it was awful. The 351 00:20:37,480 --> 00:20:40,600 Speaker 1: punishment is being removed from society. I mean, I was 352 00:20:40,640 --> 00:20:42,920 Speaker 1: away from two young daughters for a year and a half. 353 00:20:43,680 --> 00:20:45,600 Speaker 1: I had never slept away from them for more than 354 00:20:45,640 --> 00:20:50,120 Speaker 1: two nights. Our sentences have gotten so long that when 355 00:20:50,119 --> 00:20:52,920 Speaker 1: we hear somebody say, oh, we got five years, that's 356 00:20:52,920 --> 00:20:57,040 Speaker 1: not bad five years, think about how much happens in 357 00:20:57,119 --> 00:21:01,600 Speaker 1: five years. People graduate, people get married. We've lost track 358 00:21:01,720 --> 00:21:06,400 Speaker 1: of how long that is. That should be a last resort. 359 00:21:06,840 --> 00:21:08,719 Speaker 1: We have to have prison for some people who are 360 00:21:08,760 --> 00:21:13,040 Speaker 1: harming people and who are an ongoing harm. But as 361 00:21:13,080 --> 00:21:18,080 Speaker 1: a group that values families and children and communities, we 362 00:21:18,200 --> 00:21:20,720 Speaker 1: just have to get back to the idea that it 363 00:21:20,720 --> 00:21:24,560 Speaker 1: should be a last resort, not a first option. The 364 00:21:24,640 --> 00:21:27,560 Speaker 1: Polk evidence suggests that the thing that is most likely 365 00:21:27,600 --> 00:21:31,680 Speaker 1: to ter somebody from committing another crime were committing a 366 00:21:31,720 --> 00:21:36,440 Speaker 1: crime at all is the risk of getting caught. They're 367 00:21:36,440 --> 00:21:40,480 Speaker 1: not dissuaded by the severity of the punishment, so these 368 00:21:40,520 --> 00:21:44,919 Speaker 1: long sentences don't deter people. They don't need the extra 369 00:21:44,960 --> 00:21:48,560 Speaker 1: ten years. That's not doing society any benefit. Some people 370 00:21:48,560 --> 00:21:50,840 Speaker 1: will say, well, okay, but it's not hurting if they're 371 00:21:50,880 --> 00:21:53,520 Speaker 1: just locked up there at least not committing any crimes. 372 00:21:53,560 --> 00:21:56,560 Speaker 1: The problem with that is all of our budgets are finite, 373 00:21:56,920 --> 00:21:59,240 Speaker 1: So if we're locking somebody up for ten years when 374 00:21:59,280 --> 00:22:02,200 Speaker 1: five would be an up, that cost of the extra 375 00:22:02,240 --> 00:22:05,040 Speaker 1: five years, which maybe thirty thousand a year for five years, 376 00:22:05,440 --> 00:22:07,400 Speaker 1: is probably the cost of another policeman on the street 377 00:22:07,440 --> 00:22:12,680 Speaker 1: who could be preventing crimes. Personally. With respect to how 378 00:22:12,720 --> 00:22:16,560 Speaker 1: I have seen these laws used, I think mandatory minimum 379 00:22:16,560 --> 00:22:20,359 Speaker 1: sentencing should be done away with quite frankly. Even in 380 00:22:20,400 --> 00:22:23,480 Speaker 1: the cases where judges would prefer not to send someone 381 00:22:23,560 --> 00:22:26,720 Speaker 1: to prison or to give them perhaps a shorter prison sentences, 382 00:22:27,000 --> 00:22:30,160 Speaker 1: the judges hands are tied and they have no choice. 383 00:22:30,880 --> 00:22:33,399 Speaker 1: I think the far better system is the one where 384 00:22:33,480 --> 00:22:37,080 Speaker 1: judges are allowed to do what they are elected or 385 00:22:37,240 --> 00:22:40,560 Speaker 1: pointed to do, and that is to be judges. Judges 386 00:22:40,640 --> 00:22:43,000 Speaker 1: can throw the book at someone if they really need it, 387 00:22:43,119 --> 00:22:46,439 Speaker 1: and judges can also be lenient where it is appropriate. 388 00:22:47,080 --> 00:22:51,720 Speaker 1: In other words, cookie cutter justice just doesn't work when 389 00:22:51,720 --> 00:22:54,239 Speaker 1: it comes to something is complicated in high stakes, as 390 00:22:54,280 --> 00:22:57,280 Speaker 1: criminal justice. I just can't think of a good argument 391 00:22:57,359 --> 00:23:03,080 Speaker 1: against specificity. Mandate. Hoary minimum prison sentences factor heavily in 392 00:23:03,280 --> 00:23:06,160 Speaker 1: why people will flead guilty to things that they did 393 00:23:06,160 --> 00:23:09,080 Speaker 1: not do. They simply can't afford the risk of losing 394 00:23:09,119 --> 00:23:11,920 Speaker 1: a trial where they would be faced with a mandatory 395 00:23:12,000 --> 00:23:15,600 Speaker 1: minimum prison sentence, and oftentimes they will opt to plead 396 00:23:15,640 --> 00:23:19,240 Speaker 1: guilty to a lesser charge, even if they maintain their innocence, 397 00:23:19,600 --> 00:23:25,560 Speaker 1: just to avoid mandatory minimum sentencing. We've talked a lot 398 00:23:25,640 --> 00:23:28,399 Speaker 1: this season about how every single person in the justice 399 00:23:28,400 --> 00:23:32,320 Speaker 1: system has an absolute constitutional right to a fair trial. 400 00:23:33,080 --> 00:23:36,800 Speaker 1: But being entitled to something is one thing, Actually getting 401 00:23:36,840 --> 00:23:40,119 Speaker 1: it is another. To put it another way, having a 402 00:23:40,240 --> 00:23:43,000 Speaker 1: right to a fair trial does not mean that everyone 403 00:23:43,160 --> 00:23:47,639 Speaker 1: actually gets a fair trial. There is an enormous amount 404 00:23:47,640 --> 00:23:51,040 Speaker 1: of risk associated with taking a criminal case to trial. 405 00:23:51,880 --> 00:23:54,560 Speaker 1: Some of those risks are obvious, like the risk of 406 00:23:54,640 --> 00:23:59,199 Speaker 1: extensive incarceration, and some of those risks, though, are hidden, 407 00:23:59,320 --> 00:24:03,400 Speaker 1: such as the lifetime stigma associated with merely being charged 408 00:24:03,480 --> 00:24:07,600 Speaker 1: with a crime. When I gamble, I never place a 409 00:24:07,640 --> 00:24:10,960 Speaker 1: bet that I cannot afford to lose. The decision to 410 00:24:11,000 --> 00:24:13,359 Speaker 1: go to trial or to take a plea deal is 411 00:24:13,400 --> 00:24:17,400 Speaker 1: a lot like gambling, and because it is so risky, 412 00:24:17,440 --> 00:24:21,080 Speaker 1: innocent people will sometimes plead guilty and take a deal 413 00:24:21,440 --> 00:24:25,720 Speaker 1: rather than risking their lives by going to trial. One 414 00:24:25,760 --> 00:24:28,240 Speaker 1: of the less obvious risks of trial is what we 415 00:24:28,320 --> 00:24:31,800 Speaker 1: in the legal business called the trial tax. The trial 416 00:24:31,840 --> 00:24:35,280 Speaker 1: tax refers to the extra jail time that sometimes gets 417 00:24:35,280 --> 00:24:38,520 Speaker 1: added to a sentence merely because a person has exercised 418 00:24:38,560 --> 00:24:43,080 Speaker 1: their constitutional right to a trial. There are many ways 419 00:24:43,240 --> 00:24:46,680 Speaker 1: that this trial tax and other costs can sneak into 420 00:24:46,720 --> 00:24:50,040 Speaker 1: a case once a person invokes their right to a trial. 421 00:24:51,280 --> 00:24:54,800 Speaker 1: As a retired judge and defense attorney, my friend Ray 422 00:24:54,840 --> 00:24:58,760 Speaker 1: Gary Jr. Has an absolute treasure trove of all kinds 423 00:24:58,760 --> 00:25:02,679 Speaker 1: of stories. Many of these are very entertaining stories, but 424 00:25:02,960 --> 00:25:08,000 Speaker 1: some are downright frightening. Many of raised stories highlight the 425 00:25:08,040 --> 00:25:11,440 Speaker 1: consequences of going to trial and the reasons that innocent 426 00:25:11,480 --> 00:25:17,119 Speaker 1: people might plead guilty. The main reason an innocent person 427 00:25:17,119 --> 00:25:20,560 Speaker 1: would plead guilty is because if they go to trial 428 00:25:21,320 --> 00:25:27,840 Speaker 1: and lose, they're gonna get an extremely long sentence. There's 429 00:25:27,920 --> 00:25:31,959 Speaker 1: some comfort into knowing what you're going to get before 430 00:25:32,040 --> 00:25:36,480 Speaker 1: you get there. If you have a plea bargain, you 431 00:25:36,560 --> 00:25:38,480 Speaker 1: know ahead of time what's going to happen when you 432 00:25:38,520 --> 00:25:42,120 Speaker 1: go to court. If you go to trial, if you win, 433 00:25:42,600 --> 00:25:45,320 Speaker 1: you made a great decision. If you go to trial 434 00:25:45,880 --> 00:25:49,359 Speaker 1: and you lose, you made a terrible decision, because you're 435 00:25:49,400 --> 00:25:52,639 Speaker 1: gonna get a lot more punishment. You know. Some people say, well, 436 00:25:52,680 --> 00:25:55,160 Speaker 1: I got wife and kids. I can't take a chance 437 00:25:55,200 --> 00:25:59,120 Speaker 1: I'm going to prison. I will lose our house. Sometimes 438 00:25:59,320 --> 00:26:04,400 Speaker 1: people plead guilty just to avoid the risk. So if 439 00:26:04,400 --> 00:26:06,720 Speaker 1: they offer you the right thing, like I had a 440 00:26:06,840 --> 00:26:11,640 Speaker 1: lady charge with molesting her own grandson that was innocent. 441 00:26:12,320 --> 00:26:17,400 Speaker 1: But when you alleged chow molestation against anybody, the police 442 00:26:17,400 --> 00:26:23,240 Speaker 1: department and the prosecutors and the judges, they don't want 443 00:26:23,240 --> 00:26:26,680 Speaker 1: to back off them something like that. So the best 444 00:26:26,720 --> 00:26:30,360 Speaker 1: offer I had before trial was ten years in prison 445 00:26:30,920 --> 00:26:36,800 Speaker 1: in ten years on probation. After the first witness testified, 446 00:26:37,080 --> 00:26:42,280 Speaker 1: which was the child victim. From cross examination, he admitted 447 00:26:42,720 --> 00:26:46,520 Speaker 1: that he made the whole thing up because his mother 448 00:26:46,920 --> 00:26:50,639 Speaker 1: didn't like her mother in law, and so the prosecutor 449 00:26:50,680 --> 00:26:55,040 Speaker 1: asked for a recess to talk to me, and they 450 00:26:55,320 --> 00:27:00,320 Speaker 1: brow beat me into pleading to a misdemeanor with no 451 00:27:00,480 --> 00:27:04,040 Speaker 1: jail tim And to this day I regret it. I 452 00:27:04,080 --> 00:27:07,159 Speaker 1: should have I shouldn't have let him brow beat me 453 00:27:07,160 --> 00:27:11,119 Speaker 1: into plead and guilty to anything. But but you know, 454 00:27:11,160 --> 00:27:14,359 Speaker 1: when you go from your best offer is ten years 455 00:27:14,400 --> 00:27:18,040 Speaker 1: in prison followed by ten years on probation be a 456 00:27:18,080 --> 00:27:23,480 Speaker 1: registered sex offender, down to misdemeanor probation, that's a pretty 457 00:27:23,520 --> 00:27:26,680 Speaker 1: far drop. Even though at that point it was so 458 00:27:26,760 --> 00:27:30,200 Speaker 1: obvious that the client was innocent, the prosecutors still wanted 459 00:27:30,240 --> 00:27:33,320 Speaker 1: to squeeze out a little bit. Now that I've had 460 00:27:33,359 --> 00:27:35,880 Speaker 1: more time to think about it, that makes me hold 461 00:27:36,080 --> 00:27:39,840 Speaker 1: that prosecutor in lower esteem. If he thought the person 462 00:27:39,920 --> 00:27:42,400 Speaker 1: was guilty, he shouldn't have backed off. If he thought 463 00:27:42,440 --> 00:27:44,720 Speaker 1: they were innocent, he should have backed off all the way. 464 00:27:46,320 --> 00:27:49,239 Speaker 1: Because I've worked both sides of a courtroom, I know 465 00:27:49,440 --> 00:27:53,760 Speaker 1: firsthand how motivated prosecutors and the judges can be to 466 00:27:53,960 --> 00:27:57,800 Speaker 1: keep their active case loads as low as possible. For 467 00:27:57,840 --> 00:28:00,480 Speaker 1: this reason, the system itself is bill in a way 468 00:28:00,480 --> 00:28:06,040 Speaker 1: that discourages trials and encourages guilty please. The system would 469 00:28:06,040 --> 00:28:09,080 Speaker 1: come to a grinding halt but for the fact that 470 00:28:09,160 --> 00:28:13,240 Speaker 1: the overwhelming majority of cases are resolved by some sort 471 00:28:13,320 --> 00:28:18,320 Speaker 1: of negotiated plea deal. For example, prosecutors have the power 472 00:28:18,520 --> 00:28:22,520 Speaker 1: to charge much more serious crimes when someone decides not 473 00:28:22,760 --> 00:28:25,600 Speaker 1: to plead guilty, and that's a big piece of the 474 00:28:25,720 --> 00:28:29,679 Speaker 1: risk defendants have to consider before deciding to take a 475 00:28:29,720 --> 00:28:33,840 Speaker 1: case to trial. But the thing about the trial tax, 476 00:28:34,200 --> 00:28:37,720 Speaker 1: it's not a local or even a state level phenomenon. 477 00:28:38,320 --> 00:28:43,720 Speaker 1: It's happening everywhere throughout the United States. This is defense 478 00:28:43,760 --> 00:28:48,720 Speaker 1: attorney Michelle Tiegel, And what I think happens every day 479 00:28:48,800 --> 00:28:53,520 Speaker 1: in this country is that people are overcharged and that 480 00:28:53,640 --> 00:28:56,920 Speaker 1: they plead and sort of I hate to say, split 481 00:28:57,000 --> 00:28:59,240 Speaker 1: the baby, but they have to make a decision about 482 00:28:59,240 --> 00:29:02,880 Speaker 1: whether there willing to risk more or take the plea bargain, 483 00:29:03,040 --> 00:29:05,520 Speaker 1: because the trial is always a risk for a person 484 00:29:05,600 --> 00:29:08,560 Speaker 1: in their freedom, and the more serious the charge, the 485 00:29:08,600 --> 00:29:12,880 Speaker 1: more of a risk it is. Do I think innocent 486 00:29:12,920 --> 00:29:16,160 Speaker 1: people plead guilty all the time. I think it happens, 487 00:29:16,840 --> 00:29:19,960 Speaker 1: but I think what happens even more they maybe have 488 00:29:20,120 --> 00:29:25,320 Speaker 1: some responsibility for something, but they are being overcharged, and 489 00:29:25,440 --> 00:29:29,440 Speaker 1: I saw that at all levels in the criminal system. 490 00:29:29,520 --> 00:29:31,200 Speaker 1: I don't know if you use this term in Georgia, 491 00:29:31,240 --> 00:29:35,560 Speaker 1: but in Texas they sometimes call it a shotgun charge. Basically, 492 00:29:35,560 --> 00:29:39,160 Speaker 1: a prosecutor dumps everything but the kitchen sink hoping that 493 00:29:39,280 --> 00:29:43,120 Speaker 1: something will stick. That's an unfair way to do it, 494 00:29:43,240 --> 00:29:45,440 Speaker 1: but it's a way that prosecutors do it who are 495 00:29:45,480 --> 00:29:48,680 Speaker 1: more focused, I think, on winning than on doing justice, 496 00:29:49,760 --> 00:29:53,760 Speaker 1: because they walk away with a win in their you know, 497 00:29:54,120 --> 00:29:57,400 Speaker 1: quiver or whatever instead of just getting the right result 498 00:29:57,520 --> 00:30:00,360 Speaker 1: and serving the community. And that's a real that's a 499 00:30:00,400 --> 00:30:05,800 Speaker 1: real unfortunate thing. I think it's a real problem in 500 00:30:06,440 --> 00:30:09,880 Speaker 1: non violent offenses. I think, I mean, just from an 501 00:30:09,920 --> 00:30:13,960 Speaker 1: opinion perspective, we're overcharging people, but sometimes I think we're 502 00:30:14,040 --> 00:30:18,440 Speaker 1: also using the ability that prosecutors have in a lot 503 00:30:18,480 --> 00:30:22,400 Speaker 1: of states of enhancements, different ways that they can make 504 00:30:22,400 --> 00:30:25,640 Speaker 1: a crime more serious based on a person's priors, or 505 00:30:25,680 --> 00:30:28,920 Speaker 1: the amount of drugs or other factors, or in the 506 00:30:28,960 --> 00:30:32,640 Speaker 1: federal system, what we call relevant conduct, which is what 507 00:30:32,760 --> 00:30:34,760 Speaker 1: I would say in LA terms, is all this other 508 00:30:34,800 --> 00:30:39,080 Speaker 1: stuff that can make it a lot worse. Those factors, 509 00:30:39,120 --> 00:30:41,920 Speaker 1: I think can really result in a person going away 510 00:30:41,960 --> 00:30:45,800 Speaker 1: for something that in essence they are innocent of because 511 00:30:45,840 --> 00:30:48,200 Speaker 1: that's really not what they're guilty of, or it's not 512 00:30:48,520 --> 00:30:52,720 Speaker 1: it's not right for their case. Maybe they're not innocent 513 00:30:52,800 --> 00:31:12,320 Speaker 1: of everything, are any of us. Michelle brings up a 514 00:31:12,360 --> 00:31:14,680 Speaker 1: good point that we've addressed before, but I want to 515 00:31:14,720 --> 00:31:18,720 Speaker 1: emphasize again the stories we've heard about wrongful conviction have 516 00:31:18,880 --> 00:31:22,000 Speaker 1: shown fully innocent men get picked up by the police 517 00:31:22,080 --> 00:31:25,920 Speaker 1: and tossed around by the justice system, and still none 518 00:31:25,960 --> 00:31:29,719 Speaker 1: of them pled guilty. While I've seen and worked on 519 00:31:29,760 --> 00:31:33,400 Speaker 1: cases where fully innocent people plead guilty because the risks 520 00:31:33,440 --> 00:31:36,960 Speaker 1: are just too great, what happens more often, in my 521 00:31:37,080 --> 00:31:40,760 Speaker 1: experience is people who are guilty in some way get 522 00:31:40,800 --> 00:31:44,320 Speaker 1: punished for additional crimes that they are not guilty of. 523 00:31:45,280 --> 00:31:48,800 Speaker 1: Any given criminal incident can have a variety of different 524 00:31:48,800 --> 00:31:52,800 Speaker 1: pieces that carry different charges. For example, the use of 525 00:31:52,840 --> 00:31:56,239 Speaker 1: a weapon or someone's mental state during an incident can 526 00:31:56,280 --> 00:32:00,800 Speaker 1: affect charges and punishment. In order to help you're a conviction, 527 00:32:01,080 --> 00:32:05,040 Speaker 1: some prosecutors will charge a defendant with anything that might 528 00:32:05,280 --> 00:32:09,040 Speaker 1: possibly fit. In that way, people may be guilty of 529 00:32:09,200 --> 00:32:13,080 Speaker 1: some of the charges but innocent on others. Here's the 530 00:32:13,120 --> 00:32:15,520 Speaker 1: story of a case where a judge hit one of 531 00:32:15,680 --> 00:32:20,440 Speaker 1: Ray Gary's clients extremely hard with a trial tax. This 532 00:32:20,480 --> 00:32:23,120 Speaker 1: case happened many years ago, and I think you might 533 00:32:23,240 --> 00:32:29,080 Speaker 1: recognize the prosecutor. I took on a client who was 534 00:32:29,200 --> 00:32:33,840 Speaker 1: charged with armed robbery. My client and three other young 535 00:32:33,920 --> 00:32:37,640 Speaker 1: men robbed a pet smart So they went out and 536 00:32:37,720 --> 00:32:42,040 Speaker 1: they bought b B guns. But the BB guns looked 537 00:32:42,120 --> 00:32:45,960 Speaker 1: real You couldn't tell that they were not real guns. 538 00:32:46,680 --> 00:32:50,640 Speaker 1: Two of the boys go in and had inside a doghouse. 539 00:32:51,560 --> 00:32:55,080 Speaker 1: So after the door was locked and the store was closed, 540 00:32:55,280 --> 00:32:59,280 Speaker 1: the two armed robbers come out of the doghouse and 541 00:32:59,440 --> 00:33:01,800 Speaker 1: round ever body up and they go open the door 542 00:33:02,000 --> 00:33:05,840 Speaker 1: and let the other two robbers in. The victims are 543 00:33:06,080 --> 00:33:10,120 Speaker 1: scared to death. Some of the people in there recognized, 544 00:33:10,600 --> 00:33:13,320 Speaker 1: you know, one of the perpetrators, so they called the 545 00:33:13,360 --> 00:33:17,400 Speaker 1: police and said so and so and three other guys 546 00:33:17,520 --> 00:33:24,200 Speaker 1: just robbed us. So one guy pleads guilty right away, 547 00:33:24,480 --> 00:33:28,600 Speaker 1: gets twenty to do ten, which was Phil Holloway's best offer. 548 00:33:29,160 --> 00:33:32,560 Speaker 1: And really that was a good offer because the minimum 549 00:33:32,600 --> 00:33:35,040 Speaker 1: sentence for armor robbery was twenty to do ten. I 550 00:33:35,080 --> 00:33:39,600 Speaker 1: think so Phil had a pretty strong case. But my client, 551 00:33:39,960 --> 00:33:45,160 Speaker 1: strangely would not plead guilty. He was like one of 552 00:33:45,160 --> 00:33:49,320 Speaker 1: these ostriches that stick their head in the sand. And 553 00:33:49,360 --> 00:33:52,800 Speaker 1: I tried to explain, I agree that it's too much. 554 00:33:53,360 --> 00:33:56,920 Speaker 1: I agree that it's not fair, but you've got to 555 00:33:57,000 --> 00:34:00,840 Speaker 1: choose between bad or worse, and if you go to trial, 556 00:34:02,000 --> 00:34:06,840 Speaker 1: it's gonna be a lot worse. But his mother had 557 00:34:06,880 --> 00:34:09,799 Speaker 1: a vision from God that he was going to be acquitted, 558 00:34:11,040 --> 00:34:17,239 Speaker 1: and so we started the trial. My clients convicted on 559 00:34:17,719 --> 00:34:21,320 Speaker 1: four counts of arms robbery. My client ends up getting 560 00:34:21,360 --> 00:34:25,120 Speaker 1: forty years in prison without parole. In a matter of fact, 561 00:34:25,160 --> 00:34:28,239 Speaker 1: that was about fifteen or sixteen years ago. And so 562 00:34:28,320 --> 00:34:31,680 Speaker 1: all the other three who took the deal there, they've 563 00:34:31,719 --> 00:34:35,080 Speaker 1: been out for four or five years. My guy is 564 00:34:35,080 --> 00:34:39,160 Speaker 1: still in here from him every now and then, but 565 00:34:39,320 --> 00:34:41,880 Speaker 1: really there's nobody that can let him out unless the 566 00:34:41,960 --> 00:34:47,000 Speaker 1: judge was to change your mind. That case happened back 567 00:34:47,000 --> 00:34:49,480 Speaker 1: when I was working at the District Attorney's office as 568 00:34:49,480 --> 00:34:53,040 Speaker 1: an assistant district attorney. While I was not involved with 569 00:34:53,080 --> 00:34:55,640 Speaker 1: the sentencing in the case, it was up to me 570 00:34:55,880 --> 00:34:59,160 Speaker 1: to determine what charges to bring, and as Ray said, 571 00:34:59,400 --> 00:35:03,480 Speaker 1: I offered this client the legal mandatory minimum ten years 572 00:35:03,560 --> 00:35:07,080 Speaker 1: in prison. I wanted to bring back Jesse Evans to 573 00:35:07,239 --> 00:35:11,799 Speaker 1: once more get a current prosecutor's perspective. Jesse has told 574 00:35:11,880 --> 00:35:14,280 Speaker 1: us in the past that the charges that he brings 575 00:35:14,480 --> 00:35:17,279 Speaker 1: are always determined by the facts of the case as 576 00:35:17,320 --> 00:35:20,480 Speaker 1: he believes them to be. That is exactly the way 577 00:35:20,560 --> 00:35:24,399 Speaker 1: that it is supposed to work, But sometimes some prosecutors 578 00:35:24,400 --> 00:35:29,040 Speaker 1: have different motivations, particularly the motivation to get cases pled 579 00:35:29,040 --> 00:35:32,520 Speaker 1: out and moved quickly. The trial tax can be a 580 00:35:32,640 --> 00:35:36,880 Speaker 1: very powerful tool that some prosecutors use to make that happen. 581 00:35:38,080 --> 00:35:41,279 Speaker 1: The reason that we have plea negotiations in large part 582 00:35:41,400 --> 00:35:43,120 Speaker 1: is because of the idea that we want to have 583 00:35:43,160 --> 00:35:46,239 Speaker 1: some certainty from all perspectives, from the victims perspective, from 584 00:35:46,280 --> 00:35:51,040 Speaker 1: the prosecutor's perspective, from the defendant's perspective. There's no guarantee 585 00:35:51,480 --> 00:35:53,239 Speaker 1: when you insist on a trial of what those and 586 00:35:53,280 --> 00:35:55,400 Speaker 1: injur results are going to be, except for maybe this. 587 00:35:56,080 --> 00:36:00,600 Speaker 1: The net outcome is no longer in your hands once 588 00:36:00,640 --> 00:36:03,560 Speaker 1: that jury is selected, and once that trial starts a 589 00:36:03,560 --> 00:36:06,319 Speaker 1: lot of the consequences for what happens is no longer 590 00:36:06,360 --> 00:36:08,920 Speaker 1: going to be in the criminal defendants perspective. It's not 591 00:36:08,920 --> 00:36:12,000 Speaker 1: going to be in the prosecution's perspective. Necessarily, it's going 592 00:36:12,040 --> 00:36:14,880 Speaker 1: to be in the perspective of twelve jurors and ultimately 593 00:36:14,880 --> 00:36:17,440 Speaker 1: the judge it's going to be responsible for sentencing thereafter. 594 00:36:18,560 --> 00:36:21,160 Speaker 1: Fear of the unknown is an important factor for how 595 00:36:21,160 --> 00:36:25,160 Speaker 1: we resolved cases within the criminal justice system. The fact 596 00:36:25,200 --> 00:36:27,680 Speaker 1: of the matter is, just to take cop counting by example, 597 00:36:27,680 --> 00:36:30,719 Speaker 1: we've got ten superior court judges. Let's assume that each 598 00:36:30,800 --> 00:36:34,040 Speaker 1: judge has got one trial week per month. Start doing 599 00:36:34,080 --> 00:36:36,239 Speaker 1: the math there, They've got two hundred cases on their 600 00:36:36,280 --> 00:36:39,160 Speaker 1: trial calendar at any given point, hundred fifty two cases. 601 00:36:39,760 --> 00:36:42,960 Speaker 1: We cannot try all of those cases within a given year. 602 00:36:43,000 --> 00:36:45,560 Speaker 1: If we don't have the ability to resolve those, the 603 00:36:45,600 --> 00:36:48,520 Speaker 1: criminal justice system is going to fall apart. And we 604 00:36:48,600 --> 00:36:52,440 Speaker 1: all recognize that from prosecutor's perspective, from defense attorney's perspective, 605 00:36:52,640 --> 00:36:57,000 Speaker 1: and from judges perspective. But understand this too. Look, the 606 00:36:57,280 --> 00:37:00,279 Speaker 1: vast majority of cases resolving please because the person's caught 607 00:37:00,280 --> 00:37:02,479 Speaker 1: and they did it, and they know it. And really 608 00:37:02,520 --> 00:37:05,239 Speaker 1: what we're talking about is what's the best results. So 609 00:37:05,400 --> 00:37:07,920 Speaker 1: to say, for example, you know those hundreds, if not 610 00:37:08,000 --> 00:37:10,440 Speaker 1: thousands of cases where the police have arrested somebody and 611 00:37:10,520 --> 00:37:12,880 Speaker 1: have got heroin in their pocket. We're not going to 612 00:37:13,000 --> 00:37:15,520 Speaker 1: be trying cases of the person caught with heroin in 613 00:37:15,560 --> 00:37:17,239 Speaker 1: their pocket, where the defense is going to be these 614 00:37:17,239 --> 00:37:20,400 Speaker 1: are not my pants, right. That doesn't make sense the 615 00:37:20,440 --> 00:37:22,880 Speaker 1: cases that tend to go to trial with more serious ones. 616 00:37:23,520 --> 00:37:26,120 Speaker 1: When you're charged with murder, the consequences are so great 617 00:37:26,160 --> 00:37:28,479 Speaker 1: that the chances of being able to resolve that case 618 00:37:28,480 --> 00:37:32,120 Speaker 1: are diminished because of the nature of the charges. I 619 00:37:32,160 --> 00:37:35,080 Speaker 1: don't disagree that there are probably instances where people are 620 00:37:35,080 --> 00:37:37,600 Speaker 1: willing to enter a pola not because they believe they 621 00:37:37,600 --> 00:37:39,760 Speaker 1: are in fact guilty of it, but because they believe 622 00:37:39,800 --> 00:37:42,719 Speaker 1: the consequences are too great. I would say that those, 623 00:37:42,800 --> 00:37:45,080 Speaker 1: in my opinion, are probably in the minority and not 624 00:37:45,160 --> 00:37:48,399 Speaker 1: the majority. I've never been charged with the crimes that 625 00:37:48,400 --> 00:37:50,080 Speaker 1: I can say, but I know I'm not going to 626 00:37:50,160 --> 00:37:51,759 Speaker 1: be able to come to court and say that I'm 627 00:37:51,960 --> 00:37:54,120 Speaker 1: guilty of something that I didn't do. I'm gonna insist 628 00:37:54,200 --> 00:38:04,120 Speaker 1: on it on my trial. A judge, there's really nothing 629 00:38:04,160 --> 00:38:07,239 Speaker 1: but a government bureaucrat. We have this perception of what 630 00:38:07,320 --> 00:38:10,440 Speaker 1: a judge is, and you know they're perched up on 631 00:38:10,480 --> 00:38:15,560 Speaker 1: a high platform in the courtroom and they're wearing that robe. 632 00:38:16,080 --> 00:38:19,160 Speaker 1: But if you really think about it, they're actually a 633 00:38:19,280 --> 00:38:21,799 Speaker 1: government bureaucrat, just like the clerk of the court that 634 00:38:21,880 --> 00:38:25,640 Speaker 1: sits in front of them. A government workers always going 635 00:38:25,680 --> 00:38:28,320 Speaker 1: to take the short way, so you know, the clerk 636 00:38:28,360 --> 00:38:31,720 Speaker 1: of the court deals out the cases like a card 637 00:38:31,760 --> 00:38:35,480 Speaker 1: dealer dealing out cards. Every judge in the same circuit 638 00:38:35,560 --> 00:38:38,839 Speaker 1: gets the same amount of cases that's saying to them, 639 00:38:38,880 --> 00:38:41,160 Speaker 1: and so you've got to finish those cases. And it 640 00:38:41,280 --> 00:38:44,239 Speaker 1: don't look good if you have a big backlog and 641 00:38:44,320 --> 00:38:48,640 Speaker 1: there's not enough time to try all the cases. One 642 00:38:48,760 --> 00:38:52,719 Speaker 1: judge told me the most criminal jury trails he could 643 00:38:52,719 --> 00:38:56,680 Speaker 1: have in a year is thirteen because they planned their 644 00:38:56,760 --> 00:39:00,399 Speaker 1: whole year out and if something falls through, that takes 645 00:39:00,400 --> 00:39:04,000 Speaker 1: you down to twelve to ten. I talked to that 646 00:39:04,120 --> 00:39:06,319 Speaker 1: same judge a few years later, and he only had 647 00:39:06,360 --> 00:39:11,239 Speaker 1: four criminal jury trials a few years later. So there's 648 00:39:11,280 --> 00:39:14,200 Speaker 1: not enough time. So I say, I got a client 649 00:39:14,280 --> 00:39:18,960 Speaker 1: that's charged with burglary. If we have a trial, I'm 650 00:39:19,000 --> 00:39:23,160 Speaker 1: gonna take about four full days of the court's time. 651 00:39:25,680 --> 00:39:29,640 Speaker 1: If I played guilty to a plea bargain, I'm gonna 652 00:39:29,640 --> 00:39:35,640 Speaker 1: take about fifteen minutes of the court time. Who wouldn't 653 00:39:35,680 --> 00:39:40,160 Speaker 1: want to go the fifteen minute route as opposed to 654 00:39:40,280 --> 00:39:45,040 Speaker 1: the four day You know, everybody's motivated to try to 655 00:39:45,040 --> 00:39:47,520 Speaker 1: do a plea bargain, and that's why in most cases 656 00:39:48,320 --> 00:39:52,640 Speaker 1: our plea bargains in very few cases are trials. Now, 657 00:39:52,719 --> 00:39:55,080 Speaker 1: the way they get you to do that, the word 658 00:39:55,120 --> 00:40:02,440 Speaker 1: gets out that there's a lot more punishment. That reminds 659 00:40:02,560 --> 00:40:06,520 Speaker 1: me of of a story about a judge wanting to 660 00:40:07,080 --> 00:40:11,160 Speaker 1: make it short. And I had a client who he 661 00:40:11,280 --> 00:40:16,360 Speaker 1: wasn't innocent necessarily, he was more in the gray area. 662 00:40:16,760 --> 00:40:20,240 Speaker 1: We wanted to trowl. So we got the phone call 663 00:40:20,360 --> 00:40:24,320 Speaker 1: be here Tuesday afternoon at one thirty to start to trial. 664 00:40:25,640 --> 00:40:29,319 Speaker 1: So the judge was in his chambers, which was right 665 00:40:29,360 --> 00:40:32,600 Speaker 1: next to where I was sitting in so I can 666 00:40:32,680 --> 00:40:37,200 Speaker 1: hear the judge and what I hear as him saying, 667 00:40:38,360 --> 00:40:42,120 Speaker 1: played golf today. Yeah, yeah, I can make it. I'm 668 00:40:42,200 --> 00:40:44,440 Speaker 1: n percent here, I can make it. Yeah, plan on 669 00:40:44,520 --> 00:40:47,960 Speaker 1: me being there. So I'm thinking, hey, if I go 670 00:40:48,080 --> 00:40:52,879 Speaker 1: to trial, he's not gonna make that tea time. He's motivated. 671 00:40:53,400 --> 00:40:57,480 Speaker 1: This is good. So the judge buzzes out to the 672 00:40:57,480 --> 00:41:02,600 Speaker 1: administrative assistant send both lawyer us back here, and so 673 00:41:02,719 --> 00:41:05,120 Speaker 1: we sit down and he says, can't you boys work 674 00:41:05,200 --> 00:41:09,040 Speaker 1: this out? I said, well, I think so jah, And 675 00:41:09,120 --> 00:41:11,839 Speaker 1: the prosecutor said, well, I don't know. I don't know. 676 00:41:12,560 --> 00:41:16,920 Speaker 1: I'm under pressure from higher ups. The judge said, what 677 00:41:17,000 --> 00:41:19,960 Speaker 1: are you looking for a raid? I said, I'm looking 678 00:41:20,000 --> 00:41:23,239 Speaker 1: for one year to serve in you know, about five 679 00:41:23,320 --> 00:41:28,839 Speaker 1: years on probation. As the prosecutor, what you offer him? 680 00:41:28,960 --> 00:41:31,960 Speaker 1: He said, well, I offered him three years to serve 681 00:41:32,040 --> 00:41:35,919 Speaker 1: and two years on probation. Judge said, can't you come 682 00:41:35,920 --> 00:41:39,719 Speaker 1: down to one year? He said, I really just don't 683 00:41:39,760 --> 00:41:43,800 Speaker 1: think I can. The judge looked at me and he said, 684 00:41:44,040 --> 00:41:46,560 Speaker 1: why don't you get your client to plead guilty without 685 00:41:46,600 --> 00:41:51,560 Speaker 1: having a plea bargain, which ordinarily would be playing Russian roulette. 686 00:41:52,400 --> 00:41:55,200 Speaker 1: If your client doesn't like what the sentence is, I'll 687 00:41:55,280 --> 00:41:59,200 Speaker 1: let you withdraw it and proceed with a trial. Which 688 00:41:59,280 --> 00:42:02,040 Speaker 1: was the same thing as him telling me I'm going 689 00:42:02,080 --> 00:42:04,680 Speaker 1: to give you exactly what you said you wanted. So 690 00:42:04,760 --> 00:42:07,040 Speaker 1: I said, yeah, yeah, we'll we'll plead guilty with no 691 00:42:07,120 --> 00:42:10,319 Speaker 1: deal on the table. So we played guilty, and that's 692 00:42:10,320 --> 00:42:13,080 Speaker 1: exactly what happened and the judge went to play golf. 693 00:42:14,440 --> 00:42:18,799 Speaker 1: It's just a bunch of unique circumstances that resulted in 694 00:42:19,040 --> 00:42:22,360 Speaker 1: a me not having to try the case, be my 695 00:42:22,480 --> 00:42:27,000 Speaker 1: client not risking going to prison longer. And it actually 696 00:42:27,040 --> 00:42:29,000 Speaker 1: took the pressure off the d A too, because it 697 00:42:29,040 --> 00:42:31,319 Speaker 1: wasn't his fault. You know, he could go back and say, hey, 698 00:42:31,560 --> 00:42:35,520 Speaker 1: I can't stop him from pleading guilty. Judge didn't do 699 00:42:35,560 --> 00:42:37,719 Speaker 1: what I wanted him to, so the d A was 700 00:42:37,760 --> 00:42:40,360 Speaker 1: off the hook. The DA didn't have to try the case. 701 00:42:41,120 --> 00:42:44,880 Speaker 1: I was happy, my client was happy, the judge was happy. 702 00:42:45,719 --> 00:42:48,000 Speaker 1: This wasn't something the judge told me. This was just 703 00:42:48,040 --> 00:42:52,920 Speaker 1: something I overheard. Before we finish up this episode, I 704 00:42:52,960 --> 00:42:56,280 Speaker 1: wanted to play for you. One more point that defense 705 00:42:56,320 --> 00:42:59,600 Speaker 1: attorney and friend of the show, Ashley Merchant, brought up. 706 00:43:01,760 --> 00:43:06,080 Speaker 1: There's another consequence to mandatory minimum sentences that she sees 707 00:43:06,120 --> 00:43:10,360 Speaker 1: in her work that might not be immediately apparent. I 708 00:43:10,400 --> 00:43:12,719 Speaker 1: do a lot of work with prison inmates them and 709 00:43:12,760 --> 00:43:14,560 Speaker 1: I think a lot of people don't think about this. 710 00:43:15,360 --> 00:43:17,760 Speaker 1: When you have a mandatory minimum where there's no parole, 711 00:43:17,920 --> 00:43:20,279 Speaker 1: and you take away hope from a prison in made 712 00:43:20,320 --> 00:43:26,240 Speaker 1: of getting out, you create a very, very scary prison system. 713 00:43:26,280 --> 00:43:31,960 Speaker 1: The behavioral incentive for inmates is parole. If you sentence 714 00:43:32,000 --> 00:43:35,200 Speaker 1: people to twenty five years to life without parole, they 715 00:43:35,200 --> 00:43:37,320 Speaker 1: are going to go into prison and commit more crimes 716 00:43:37,360 --> 00:43:39,239 Speaker 1: because they're never going to get out and they have 717 00:43:39,280 --> 00:43:40,680 Speaker 1: no hope of every getting out and they know they're 718 00:43:40,680 --> 00:43:42,719 Speaker 1: never gonna get out. What are you gonna do to them? 719 00:43:42,800 --> 00:43:45,839 Speaker 1: Give them more time. So I've had clients who told 720 00:43:45,840 --> 00:43:47,680 Speaker 1: me about They're like, if I'm never gonna get out, 721 00:43:47,719 --> 00:43:49,400 Speaker 1: I'm going to sell drugs in prison and send the 722 00:43:49,440 --> 00:43:51,759 Speaker 1: money to my family because that's the only way i 723 00:43:51,800 --> 00:43:54,520 Speaker 1: can make money for my family, and I'm never getting out. 724 00:43:55,680 --> 00:43:57,719 Speaker 1: I think you're seeing inmates that are willing to take 725 00:43:57,840 --> 00:44:01,120 Speaker 1: chances on crimes because it can't get me where For them, 726 00:44:01,160 --> 00:44:02,960 Speaker 1: you know, it becomes the Department of punishment, not the 727 00:44:02,960 --> 00:44:04,920 Speaker 1: Department of correct since you're not trying to correct behavior 728 00:44:04,960 --> 00:44:06,600 Speaker 1: if you're locking someone up and never letting them out 729 00:44:06,600 --> 00:44:10,880 Speaker 1: because of a mandatory minimum. There's so much more to 730 00:44:11,000 --> 00:44:14,080 Speaker 1: cover on the risks associated with going to trial and 731 00:44:14,120 --> 00:44:17,640 Speaker 1: the hidden costs also associated with going to trial. So 732 00:44:17,680 --> 00:44:21,880 Speaker 1: we'll continue this topic next week. Plus there's a legal 733 00:44:21,920 --> 00:44:25,319 Speaker 1: tool we haven't yet discussed that allows people to take 734 00:44:25,360 --> 00:44:28,960 Speaker 1: advantage of a plea deal without ever saying that they 735 00:44:28,960 --> 00:44:32,120 Speaker 1: are guilty. One of the things we found out while 736 00:44:32,200 --> 00:44:35,279 Speaker 1: making this show is that tool, which I use for 737 00:44:35,320 --> 00:44:39,080 Speaker 1: a lot of my cases, is more controversial than I thought. 738 00:44:42,120 --> 00:44:47,600 Speaker 1: Next time on Sworn, the blame in part is on 739 00:44:47,840 --> 00:44:52,880 Speaker 1: all of us, because this would not be occurring or 740 00:44:52,960 --> 00:44:56,719 Speaker 1: not occurring in the extreme way that we're describing if 741 00:44:56,760 --> 00:45:03,520 Speaker 1: there were more judges, more resources for criminal defense lawyers, 742 00:45:04,040 --> 00:45:11,879 Speaker 1: especially for indigence or in depth enquiries, lower penalties. If 743 00:45:11,880 --> 00:45:15,080 Speaker 1: you took the person in the street and showed them 744 00:45:15,080 --> 00:45:18,000 Speaker 1: what you just described, I think most people would say, 745 00:45:18,040 --> 00:45:20,600 Speaker 1: oh my gosh, I never thought of worked like that. 746 00:45:20,680 --> 00:45:22,239 Speaker 1: I mean, that's like what they used to do in 747 00:45:22,320 --> 00:45:25,920 Speaker 1: Soviet Russia. That stuff that's not justice, but they have 748 00:45:26,000 --> 00:45:35,160 Speaker 1: no idea. Sworn is a production of Tenderfoot TV and 749 00:45:35,239 --> 00:45:40,239 Speaker 1: I Heart Radio. Our lead producer is Christina Dana. Executive 750 00:45:40,239 --> 00:45:44,239 Speaker 1: producers are Payne Lindsay and Donald Albright for Tenderfoot TV, 751 00:45:44,680 --> 00:45:48,080 Speaker 1: Matt Frederick and Alex Williams for I Heart Radio, and 752 00:45:48,239 --> 00:45:53,640 Speaker 1: myself Philip Holloway. Additional production by Trevor Young Mason Lindsay, 753 00:45:53,800 --> 00:45:58,759 Speaker 1: Mike Rooney, Jamie Albright and Halle Beadal. Original music and 754 00:45:58,800 --> 00:46:02,040 Speaker 1: sound designed by Making Up and Vanity Set. Our theme 755 00:46:02,080 --> 00:46:05,239 Speaker 1: song is Blood in the Water by Layup. Show art 756 00:46:05,280 --> 00:46:09,840 Speaker 1: and design is by Trevor Eisler, editing by Christina Dana, 757 00:46:10,400 --> 00:46:14,600 Speaker 1: Mixing and mastering by Mike Rooney and Cooper Skinner. Special 758 00:46:14,600 --> 00:46:18,120 Speaker 1: thanks to the team at I Heart Radio from u 759 00:46:18,160 --> 00:46:22,719 Speaker 1: T a or In Rosenbaund and Grace Royer, Ryan Nord 760 00:46:22,760 --> 00:46:26,960 Speaker 1: and Matthew Papa from the Nord Group, back Media and 761 00:46:27,040 --> 00:46:30,520 Speaker 1: Marketing and Station sixteen. I'd also like to extend a 762 00:46:30,719 --> 00:46:34,360 Speaker 1: very personal and special thanks to all of our contributors 763 00:46:34,360 --> 00:46:36,799 Speaker 1: and guests who have helped to make all of these 764 00:46:36,840 --> 00:46:41,279 Speaker 1: episodes possible. You can find Sworn on Facebook, Twitter, and 765 00:46:41,360 --> 00:46:46,360 Speaker 1: Instagram at Sworn podcast and follow me your host, Philip 766 00:46:46,360 --> 00:46:50,680 Speaker 1: Holloway on Twitter at phil Holloway e s Q. Our 767 00:46:50,719 --> 00:46:54,000 Speaker 1: website is sworn podcast dot com, and you can check 768 00:46:54,040 --> 00:46:59,799 Speaker 1: out other Tenderfoot TV podcasts at www dot tenderfoot dot tv. 769 00:47:00,640 --> 00:47:03,400 Speaker 1: If you have questions or comments, you can email us 770 00:47:03,480 --> 00:47:08,000 Speaker 1: at Sworn at Tenderfoot dot tv or leave us a 771 00:47:08,080 --> 00:47:13,200 Speaker 1: voicemail at four zero four four one zero zero four 772 00:47:13,360 --> 00:47:19,360 Speaker 1: f one. As always, thanks for listening. Do you know 773 00:47:19,400 --> 00:47:23,680 Speaker 1: what a podcast is? Rae Well, my impression of it, 774 00:47:23,760 --> 00:47:26,680 Speaker 1: although I've never heard one, is that it's uh like 775 00:47:26,719 --> 00:47:29,400 Speaker 1: a radio show, but instead of getting it on the radio, 776 00:47:29,480 --> 00:47:32,600 Speaker 1: you get it off the computer, right, I mean, I'm 777 00:47:32,600 --> 00:47:36,200 Speaker 1: from the old school, so I've never actually heard a podcast, 778 00:47:36,360 --> 00:47:39,319 Speaker 1: but now that I'm involved in one, I'm intend to, 779 00:47:39,880 --> 00:47:42,160 Speaker 1: you know, listen to one, especially your show, if I 780 00:47:42,160 --> 00:47:42,759 Speaker 1: can find it.