Speaker 1: If you will place your left hand on the Bible
Speaker 1: and raise your right hand, and please repeat after me,
Speaker 1: and I do solemnly swear, then titled action find the
Speaker 1: defendant guilty of the time. It makes no sense, it
Speaker 1: doesn't fit. If it doesn't fit, you must aquit. We
Speaker 1: all took the same of the office. We're all bound
Speaker 1: by that common commitment to support and defend the Constitution,
Speaker 1: to bear true faith in allegiance, to say that you
Speaker 1: faithfully discharge the duties of our office. Do you solemnly
Speaker 1: swear or affirm that the testimony you're about to give
Speaker 1: will be the truth, the whole truth, and nothing but
Speaker 1: the truth. From Tenderfoot TV and I Heart Radio, this
Speaker 1: is sworn. I'm your host, Philip Holloway. Usually when I've
Speaker 1: represented somebody that I believe was fully innocent, they were
Speaker 1: normally found not guilty. But the very last trial I
Speaker 1: had were three defendants who were charged with drug trafficking,
Speaker 1: and one of them I knew was innocent. It wasn't
Speaker 1: my client. My client without telling me he was guilty
Speaker 1: or not guilty. He told me that the other guys
Speaker 1: was innocent and that he felt terrible about it. He
Speaker 1: had just asked him to go to lunch, and they
Speaker 1: stopped by the drug house on the way to lunch.
Speaker 1: So then the third guy's lawyer, he said, you know,
Speaker 1: you know that defendant number two is innocent, don't you?
Speaker 1: His client had told him. My client had told me.
Speaker 1: Two family members who were closer to defend us one
Speaker 1: and three told me that two was innocent. And plus,
Speaker 1: having heard everything that happened, is not a doubt. My man,
Speaker 1: the guy was innocent. But as bad luck would have it,
Speaker 1: all three were convicted, and due to mandatory animum sentencing,
Speaker 1: they all got twenty five years. And so at the
Speaker 1: sentencing that J S YEA all ready for sentencing, I said, yeah,
Speaker 1: but my client wants to be sentenced first. The only
Speaker 1: thing my client said was that so and so was innocent.
Speaker 1: He didn't ask for a lenient senate. My client didn't
Speaker 1: ask for anything for himself. He just spoke on behalf
Speaker 1: of the defendant number two. But you know, the jury
Speaker 1: had just found him guilty, so they all three he
Speaker 1: got twenty five years. That was Ray Geary, a retired
Speaker 1: judge and defense attorney. Ray helped inspire me to enter
Speaker 1: private practice nearly two decades ago. And taught me a
Speaker 1: great many things that I now know about running a
Speaker 1: law practice. That story about Ray's last case features heavily
Speaker 1: the use of mand tory minimum sentencing, the topic of
Speaker 1: this episode. A mandatory minimum sentence is an amount of
Speaker 1: prison time that someone is required by law to serve
Speaker 1: for a particular crime. These laws are enacted by legislatures,
Speaker 1: and they make the legislatures rather than judges, responsible for
Speaker 1: sentencing in a given case. There is a lot of
Speaker 1: debate about mandatory minimum prison sentencing in the United States
Speaker 1: right now, and there is also a push for legislative
Speaker 1: reform that we see taking place around the US involving
Speaker 1: mandatory minimum sentencing. The first person we spoke to about
Speaker 1: this was Kevin Ring. My name is Kevin Ring, and
Speaker 1: I currently serve as president of FAN formerly Families Against
Speaker 1: Mandatory Minimums. Fam is a national criminal justice reform organization
Speaker 1: that's been around since Dedicated to the idea not controversial.
Speaker 1: We think that the punishment should fit the crime, that
Speaker 1: people should be sentences individuals for whatever crimes they commit,
Speaker 1: and that judges should have the authority to passion sentences
Speaker 1: that fit each crime. Usually Congress or a state legislature
Speaker 1: will say for a certain crime, anybody who violates it
Speaker 1: can get up to five years or up to ten
Speaker 1: years in prison. A mandatory minimum will say this person
Speaker 1: gets up to ten years, but no less than five years,
Speaker 1: so they set a floor under which a judge can't
Speaker 1: go even if they think the facts and circumstances of
Speaker 1: the case warranted. In the federal system, this is usually
Speaker 1: done with drugs. If you traffic five grams of math
Speaker 1: and fetamine, you get a five year mandatory minimum. That
Speaker 1: means it doesn't matter if you were the kingpin, the
Speaker 1: logo and the total pole. The five gram trigger requires
Speaker 1: a five year mandatory minimum prison sentence. So it's different
Speaker 1: in other sentences that don't carry these man tory penalties
Speaker 1: in that a judge loses discretion and once you're convictive
Speaker 1: of crime, the punishment is automatic. I was a Capitol
Speaker 1: Hill staffer in the early nineties. I was just like
Speaker 1: everybody else, twentysomething year old who knew nothing but thought
Speaker 1: I knew everything. I was a Republican conservative in my
Speaker 1: ideology matched that of the leaders at the time. Crime
Speaker 1: is out of control in the way to solve it
Speaker 1: is to throw the book at people. There weren't a
Speaker 1: lot of studies about mandatory minimums at the time because
Speaker 1: they had just come back into vogue in the mid eighties.
Speaker 1: So we knew the prison population was rising, but crime
Speaker 1: was falling, and so that did not dissuade us from
Speaker 1: thinking that this was a good answer. It was my
Speaker 1: turn to write a bill dealing with methamphetamine, which was
Speaker 1: now becoming a very aggressive drug across the country. I said, well,
Speaker 1: here's the answer. Then we'll just make the penalties for
Speaker 1: methymphetamine the same as they were for crack. We didn't
Speaker 1: have any hearings, We didn't bring anybody in and say, well,
Speaker 1: what's going to be the real world impact of this.
Speaker 1: What's it going to do to our incarceration rate? If
Speaker 1: we spend more on prisons for even low level of enders,
Speaker 1: are we gonna have fewer police and prosecutors? Is this
Speaker 1: the best use of our anti crime resources. There was
Speaker 1: no study involved at all. We just knew it would
Speaker 1: be politically popular to say meth is dangerous and scary,
Speaker 1: so let's just ratchet up the penalties. I was part
Speaker 1: of that process. I helped draft that bill. It passed
Speaker 1: through Congress and I think it did a lot of damage.
Speaker 1: It tied judges hands now in a new area with methamphetamine,
Speaker 1: just as it was in all these other drugs. In
Speaker 1: some ways, I've switched sides, but I can't even say
Speaker 1: that my position before was well informed. I was just
Speaker 1: somebody who believed the tough on crime line that if
Speaker 1: there's a problem, the way to get rid of it
Speaker 1: is to punished the heck out of it. Mandatory sentences
Speaker 1: have been around since the beginning of the country. It
Speaker 1: tends to track whatever the crime to juror was. The
Speaker 1: first ones were like piracy. When Robert F. Kennedy is
Speaker 1: murdered after the California primary, the next day they passed
Speaker 1: one about guns, a couple of things happened. There were
Speaker 1: real responses to crime. Sometimes it was a moral panic.
Speaker 1: Sometimes it was a legitimate fear that crime was out
Speaker 1: of control, and they felt obligated to do something to
Speaker 1: look like they were being responsive. There was a period
Speaker 1: in the seventies where lawmakers lost faith and judges. They
Speaker 1: saw too many judges giving people what they thought were
Speaker 1: slaps on the wrist for serious offenses, and they thought
Speaker 1: they couldn't be trusted anymore. Legislators started taking that power away,
Speaker 1: and then they thought it was politically popular to do.
Speaker 1: So what they want to be able to do is
Speaker 1: run for office and say, not only do I care
Speaker 1: about public safety and I want to crack down on
Speaker 1: drug dealers or child pornographers or d u I s
Speaker 1: whatever it is. I can show my commitment by saying
Speaker 1: I think everybody who commits that crime should get this
Speaker 1: stiff punishment. The problem is they always write the penalty
Speaker 1: for sort of the worst case scenario and don't contemplate
Speaker 1: the fact that there's going to be some facts and
Speaker 1: circumstances that might meet the technical definition of that crime,
Speaker 1: but don't warrant that stiff punishment. I think it arose,
Speaker 1: like all things, out of good faith, not malice. I
Speaker 1: think people were well intentioned and believing that we needed
Speaker 1: to get serious about crime. It's just turned out to
Speaker 1: be a very destructive and ineffective tool. As Kevin is
Speaker 1: someone involved in the legislative side of the legal system,
Speaker 1: I asked him who he sees as the biggest advocates
Speaker 1: for mandatory minimum prison sentences. Usually the most aggressive advocates
Speaker 1: for mandatory minimums are prosecutors and their prosecutors associations and
Speaker 1: unions that tend to lobby legislatures and are very powerful.
Speaker 1: It gives them enormous leverage. It makes their job easier
Speaker 1: when they can go into a plea negotiation and say,
Speaker 1: if you don't plead guilty and give me everything I want,
Speaker 1: I'm going to make sure you get fifteen or twenty
Speaker 1: years in prison. If a prosecutor went to a defendant
Speaker 1: and said, I want you to not only plead guilty,
Speaker 1: but testify in exactly the way I want, or I'll
Speaker 1: break your arm, no one would have a problem seeing
Speaker 1: the ethical dilemma raised by that. But when a prosecutor
Speaker 1: says do what I want or I'm gonna put you
Speaker 1: in prison for twenty years, which is much more severe
Speaker 1: than breaking someone's arm, we treat that as a normal
Speaker 1: part of the process. So this negotiating technique by prosecutors,
Speaker 1: that one where they tell people that if they don't
Speaker 1: plead out that they will increase the charge to something
Speaker 1: with a mandatory minimum. Well, that is what we call
Speaker 1: the trial tax. This is one of the hidden costs
Speaker 1: associated with going to trial. We'll cover this more in
Speaker 1: detail later in this episode. Prosecutors say that these are
Speaker 1: helpful because it allows them to coerce people into giving
Speaker 1: up higher ups. The problem is they're usually used against
Speaker 1: the higher ups in a way to go down. The
Speaker 1: higher up will come in because they have all the
Speaker 1: information and they can say, get me out from under
Speaker 1: this mandatory minimum. I'll give up everybody below me. And
Speaker 1: it's the poor sucker on the bottom who has no
Speaker 1: information to give up who gets stuck with the mandatory minimum.
Speaker 1: A defendant has to think, do I really want to
Speaker 1: risk a trial? Because if I do and I'm found
Speaker 1: guilty and there's a mandatory minimum attached, no matter what
Speaker 1: the judge thinks, he or she will have no discretion
Speaker 1: to fashion a sentence that fits me. They'll have to
Speaker 1: go with that mandatory sentence. But we want judges to
Speaker 1: have control over punishment again, so that it can be
Speaker 1: tailored to you know, what really happened, and just some
Speaker 1: arbitrary standard that was set by politicians who know nothing
Speaker 1: about this defendant or this crime, but who wrote the
Speaker 1: mandatory minimum maybe ten twenty years ago and couldn't have
Speaker 1: foreseen this particular instance. As Kevin mentioned, the most vocal
Speaker 1: advocates in favor of mandatory minimum sentences are prosecutors. As
Speaker 1: a former prosecutor myself, I have seen that these laws
Speaker 1: can do more harm than good. But I wanted to
Speaker 1: see if there were benefits to these laws that I
Speaker 1: might be overlooking. So I talked with my friend and colleague,
Speaker 1: Assistant district Attorney Jesse Evans, to see what he thought
Speaker 1: about them as a prosecutor and how he uses them
Speaker 1: when he is charging defendants. So the debate about mandatory
Speaker 1: minimums is not a new one. It's been going on
Speaker 1: for a long long time within the criminal justice system.
Speaker 1: On the positive side of things, particularly when you have
Speaker 1: a very serious offense and we want to make sure
Speaker 1: that that's dealt with appropriately. We don't want to get
Speaker 1: to the situation sation where say a person doesn't accept
Speaker 1: responsibility for what they did, they insist on having a trial,
Speaker 1: and suddenly they're able to get a slap on the
Speaker 1: wrist for their armed robbery or serious violent felony, or
Speaker 1: even drug trafficking or something like that. That's kind of
Speaker 1: the thought behind why mandatory minimums are good. It not
Speaker 1: only gives some certainty to us within the criminal justice
Speaker 1: system of what we know the outcome is going to be,
Speaker 1: It also quite frankly, gives us some leverage, for lack
Speaker 1: of a better term, to be able to talk to
Speaker 1: a criminal defendant through his attorney from the prosecutor's perspective
Speaker 1: and say, look, we need to talk about whether we
Speaker 1: can negotiate this case, because if not, we know what
Speaker 1: the consequences are going to be. This is what you're
Speaker 1: gonna be facing based on the mandatory sendency. That's the
Speaker 1: one side of the coin. The other side of the coin,
Speaker 1: I think is a correct side that mandatory minimums are
Speaker 1: not always good. We within the criminal justice system might
Speaker 1: be surprised to hear this, especially coming from seasoned prosecutor
Speaker 1: are not always in favor of them. There are oftentimes
Speaker 1: where a mandatory minimum sentence actually frustrates our ability to
Speaker 1: get k is resolved rather than fosters our ability to
Speaker 1: get cases resolved. Those consequences that are mandated by this
Speaker 1: mandatory minimum are sort of inflicted on the case, for
Speaker 1: lack of a better term, and because of that, we're
Speaker 1: not able to get to a point where we can
Speaker 1: resolve it. The push the modern day move within the
Speaker 1: criminal justice system, which I feel is actually a very
Speaker 1: good one, is the idea that we're going to give
Speaker 1: more discretion to the stakeholders, to the court, to the prosecutors,
Speaker 1: to the defense attorneys, and ultimately to victims of crimes
Speaker 1: as well, because now everybody gets to say in it.
Speaker 1: I've heard that said before that the prosecutors control what
Speaker 1: the charges are. I'll step back from that a little
Speaker 1: bit and say this, the facts really to dictate what
Speaker 1: the charges are going to be. And ultimately, if what
Speaker 1: I bring a case to court where the facts don't
Speaker 1: bear out, for example, on arm robbery versus a robbery,
Speaker 1: the state's gonna get dinged on that because we have
Speaker 1: missed an element of proof that factually is required before
Speaker 1: we can bring those charges. That said, I understand why
Speaker 1: is that judges might express some frustration about their hands
Speaker 1: being tied when they have mandatory minimums, and I think
Speaker 1: that's why there's been a real push that's certainly been
Speaker 1: the case in Georgia to allow for a downward departure
Speaker 1: or downward deviation under some circumstances. Say you have the
Speaker 1: arm robber who's on a spree goes in guns a
Speaker 1: blazing into a bank. That's a very serious offense. Tenure
Speaker 1: mandatory minimum may not be enough for that guy. Now,
Speaker 1: say you have that scenario where you have a person
Speaker 1: that walks in and using their coat and their finger
Speaker 1: to act like they have a gun and they take
Speaker 1: a bag of chips because the guy is homeless, that's
Speaker 1: an arm robbery to both of them are facing the
Speaker 1: same mandatory minimum. But I think we would all agree
Speaker 1: that those are two different factual scenarios. The change in
Speaker 1: the law would basically allow us now to say, when
Speaker 1: this prosecutor the defense, with the approval of the judge,
Speaker 1: says we're gonna let them plead an arm robbery, but
Speaker 1: we want to go less than that ten years, there's
Speaker 1: a mechanism to be able to do so, and that's
Speaker 1: not a bad thing. Otherwise, what we had his the
Speaker 1: wordical we've been forced to do is to come up
Speaker 1: with sort of a legal fiction. Well, we know it's
Speaker 1: an armed robbery, Mr. Guy who comes and using your
Speaker 1: finger as a gun. But at the same time, because
Speaker 1: we wanted apart from the mandatory minium, we're going to
Speaker 1: call it something that it's not like an aggravator assault
Speaker 1: or in a robbery or something like that. The problem
Speaker 1: with that is when you get a conviction of a
Speaker 1: different offense, it could very well impact recitivious punishment down
Speaker 1: the road if the person commits another crime, because now
Speaker 1: they don't fall under that statute neatly where we can
Speaker 1: insist on the higher punishment. There's another important factor that
Speaker 1: maybe we haven't yet talked about, which is a component
Speaker 1: of and that's the victim and victim's rights. I understand
Speaker 1: why from a legislative perspective, when that victim tells the
Speaker 1: police officer, hey, this guy put a gun in my
Speaker 1: face and took something from me, that armed robbery needs
Speaker 1: to be dealt with extremely seriously. It's certainly understandable from
Speaker 1: my perspective as to why a legislature might want to
Speaker 1: say there needs to be be a mandatory minimum when that happens.
Speaker 1: Because if it's your loved one, your wife, you're a
Speaker 1: kid that suffered and been victimized from that crime. Starting
Speaker 1: with the proposition that we're gonna treat that more seriously
Speaker 1: than where somebody just merely punched a battery makes sense
Speaker 1: to me. After hearing from Jesse and Kevin, I also
Speaker 1: wanted to get a judge's perspective on mandatory minimum sentences
Speaker 1: and how these laws may affect the judge's work when
Speaker 1: it comes to sentencing, as well as the overseeing of
Speaker 1: criminal trials. We heard from Federal District Judge Jed Rakoff
Speaker 1: back in episode one regarding eyewitness testimony, but Judge Rakoff
Speaker 1: is perhaps best known for his work studying and speaking
Speaker 1: out about mandatory minimum sentencing. I am a deep believer
Speaker 1: that just sense requires a judge to get deeply into
Speaker 1: the facts, the facts of the crime, the facts of
Speaker 1: the criminal, the facts of the victims, and to do
Speaker 1: the very difficult and often agonizing, but careful job of
Speaker 1: figuring out what sends makes sense. Mandatory minimums, of course,
Speaker 1: prevent you from doing that whatsoever. But even the sentencing guidelines,
Speaker 1: which in the federal system are no longer mandatory, they
Speaker 1: emphasize certain factors hugely an excess of other factors. I
Speaker 1: would go back to the system that it persisted in
Speaker 1: this nation for nearly two hundred years, which was we
Speaker 1: leave it to the good sense of the judge, and
Speaker 1: we encourage our judges to do a lot of work
Speaker 1: before they impose sense. People will say to me, but
Speaker 1: why do you trust judges? And I say, I don't
Speaker 1: trust anyone. I'd rather have a good system, though, and
Speaker 1: I think the best system is one of checks and balances.
Speaker 1: The legislature gives wide discretion for what charges you can
Speaker 1: bring and what the punishments can be. The prosecutor brings
Speaker 1: the charges after looking at the facts of a case.
Speaker 1: The judge then issues a sentence that makes sense, and
Speaker 1: then that sentence can be appealed if it's too severe
Speaker 1: or too lenient, and an appeals court can get a
Speaker 1: whack at it. But it's like an editing process. The
Speaker 1: more eyes that look at it, the more likely you
Speaker 1: are to get things right. This is Kevin Ring. I've
Speaker 1: been to prison myself. I was a federal lobbyist in
Speaker 1: our firm, came under scrutiny. I cooperated for two years.
Speaker 1: The government ultimately wanted me to say things that I
Speaker 1: thought were untruthful and to incriminate others in a way
Speaker 1: that I thought was untruthful. So we just had a
Speaker 1: disagreement about it. And when they try to get me
Speaker 1: to plead guilty and cooperate, they sat me down for
Speaker 1: what's called a reverse proffer. Usually proffers when a defendant
Speaker 1: comes in and says, here's everything I know is that
Speaker 1: useful to you reverse proffers. When the government says, here's
Speaker 1: everything we have against you, think about that carefully before
Speaker 1: you make your plea decision. Well, with me, they brought
Speaker 1: me in and they said, after two years of cooperating
Speaker 1: and other evidence gathering, here's what we have against you.
Speaker 1: If you plead and cooperate, will charge you with these things.
Speaker 1: And if you don't and you go to trial, will
Speaker 1: charge you with all of these different crimes. I just
Speaker 1: couldn't say what they wanted me to say. I would
Speaker 1: have been lying on the stand against people that I
Speaker 1: cared about. But what made it somewhat easier was the
Speaker 1: idea that, unlike maybe some poor kid who's on the
Speaker 1: street corner and being threatened with a twenty year mandatory
Speaker 1: minimum sentence, I knew that if I had my day
Speaker 1: in court, that if a judge hurt all the facts
Speaker 1: and circumstances, he or she would conclude is my judge
Speaker 1: did at the end of two trials that I was
Speaker 1: not who the prosecutor said I was. I didn't know
Speaker 1: how it was going to end. I was very nervous,
Speaker 1: very worried because I had two young daughters. If I
Speaker 1: had been facing a mandatory minimum. It would have made
Speaker 1: the decision a hundred times tougher. I'd like to think
Speaker 1: that I would have kept my integrity and pled according
Speaker 1: to the truth, but it would have been much harder.
Speaker 1: Prison is it's a necessary evil, but people forget how
Speaker 1: evil it is. And so even though I was in
Speaker 1: you know, a low security facility, it was awful. The
Speaker 1: punishment is being removed from society. I mean, I was
Speaker 1: away from two young daughters for a year and a half.
Speaker 1: I had never slept away from them for more than
Speaker 1: two nights. Our sentences have gotten so long that when
Speaker 1: we hear somebody say, oh, we got five years, that's
Speaker 1: not bad five years, think about how much happens in
Speaker 1: five years. People graduate, people get married. We've lost track
Speaker 1: of how long that is. That should be a last resort.
Speaker 1: We have to have prison for some people who are
Speaker 1: harming people and who are an ongoing harm. But as
Speaker 1: a group that values families and children and communities, we
Speaker 1: just have to get back to the idea that it
Speaker 1: should be a last resort, not a first option. The
Speaker 1: Polk evidence suggests that the thing that is most likely
Speaker 1: to ter somebody from committing another crime were committing a
Speaker 1: crime at all is the risk of getting caught. They're
Speaker 1: not dissuaded by the severity of the punishment, so these
Speaker 1: long sentences don't deter people. They don't need the extra
Speaker 1: ten years. That's not doing society any benefit. Some people
Speaker 1: will say, well, okay, but it's not hurting if they're
Speaker 1: just locked up there at least not committing any crimes.
Speaker 1: The problem with that is all of our budgets are finite,
Speaker 1: So if we're locking somebody up for ten years when
Speaker 1: five would be an up, that cost of the extra
Speaker 1: five years, which maybe thirty thousand a year for five years,
Speaker 1: is probably the cost of another policeman on the street
Speaker 1: who could be preventing crimes. Personally. With respect to how
Speaker 1: I have seen these laws used, I think mandatory minimum
Speaker 1: sentencing should be done away with quite frankly. Even in
Speaker 1: the cases where judges would prefer not to send someone
Speaker 1: to prison or to give them perhaps a shorter prison sentences,
Speaker 1: the judges hands are tied and they have no choice.
Speaker 1: I think the far better system is the one where
Speaker 1: judges are allowed to do what they are elected or
Speaker 1: pointed to do, and that is to be judges. Judges
Speaker 1: can throw the book at someone if they really need it,
Speaker 1: and judges can also be lenient where it is appropriate.
Speaker 1: In other words, cookie cutter justice just doesn't work when
Speaker 1: it comes to something is complicated in high stakes, as
Speaker 1: criminal justice. I just can't think of a good argument
Speaker 1: against specificity. Mandate. Hoary minimum prison sentences factor heavily in
Speaker 1: why people will flead guilty to things that they did
Speaker 1: not do. They simply can't afford the risk of losing
Speaker 1: a trial where they would be faced with a mandatory
Speaker 1: minimum prison sentence, and oftentimes they will opt to plead
Speaker 1: guilty to a lesser charge, even if they maintain their innocence,
Speaker 1: just to avoid mandatory minimum sentencing. We've talked a lot
Speaker 1: this season about how every single person in the justice
Speaker 1: system has an absolute constitutional right to a fair trial.
Speaker 1: But being entitled to something is one thing, Actually getting
Speaker 1: it is another. To put it another way, having a
Speaker 1: right to a fair trial does not mean that everyone
Speaker 1: actually gets a fair trial. There is an enormous amount
Speaker 1: of risk associated with taking a criminal case to trial.
Speaker 1: Some of those risks are obvious, like the risk of
Speaker 1: extensive incarceration, and some of those risks, though, are hidden,
Speaker 1: such as the lifetime stigma associated with merely being charged
Speaker 1: with a crime. When I gamble, I never place a
Speaker 1: bet that I cannot afford to lose. The decision to
Speaker 1: go to trial or to take a plea deal is
Speaker 1: a lot like gambling, and because it is so risky,
Speaker 1: innocent people will sometimes plead guilty and take a deal
Speaker 1: rather than risking their lives by going to trial. One
Speaker 1: of the less obvious risks of trial is what we
Speaker 1: in the legal business called the trial tax. The trial
Speaker 1: tax refers to the extra jail time that sometimes gets
Speaker 1: added to a sentence merely because a person has exercised
Speaker 1: their constitutional right to a trial. There are many ways
Speaker 1: that this trial tax and other costs can sneak into
Speaker 1: a case once a person invokes their right to a trial.
Speaker 1: As a retired judge and defense attorney, my friend Ray
Speaker 1: Gary Jr. Has an absolute treasure trove of all kinds
Speaker 1: of stories. Many of these are very entertaining stories, but
Speaker 1: some are downright frightening. Many of raised stories highlight the
Speaker 1: consequences of going to trial and the reasons that innocent
Speaker 1: people might plead guilty. The main reason an innocent person
Speaker 1: would plead guilty is because if they go to trial
Speaker 1: and lose, they're gonna get an extremely long sentence. There's
Speaker 1: some comfort into knowing what you're going to get before
Speaker 1: you get there. If you have a plea bargain, you
Speaker 1: know ahead of time what's going to happen when you
Speaker 1: go to court. If you go to trial, if you win,
Speaker 1: you made a great decision. If you go to trial
Speaker 1: and you lose, you made a terrible decision, because you're
Speaker 1: gonna get a lot more punishment. You know. Some people say, well,
Speaker 1: I got wife and kids. I can't take a chance
Speaker 1: I'm going to prison. I will lose our house. Sometimes
Speaker 1: people plead guilty just to avoid the risk. So if
Speaker 1: they offer you the right thing, like I had a
Speaker 1: lady charge with molesting her own grandson that was innocent.
Speaker 1: But when you alleged chow molestation against anybody, the police
Speaker 1: department and the prosecutors and the judges, they don't want
Speaker 1: to back off them something like that. So the best
Speaker 1: offer I had before trial was ten years in prison
Speaker 1: in ten years on probation. After the first witness testified,
Speaker 1: which was the child victim. From cross examination, he admitted
Speaker 1: that he made the whole thing up because his mother
Speaker 1: didn't like her mother in law, and so the prosecutor
Speaker 1: asked for a recess to talk to me, and they
Speaker 1: brow beat me into pleading to a misdemeanor with no
Speaker 1: jail tim And to this day I regret it. I
Speaker 1: should have I shouldn't have let him brow beat me
Speaker 1: into plead and guilty to anything. But but you know,
Speaker 1: when you go from your best offer is ten years
Speaker 1: in prison followed by ten years on probation be a
Speaker 1: registered sex offender, down to misdemeanor probation, that's a pretty
Speaker 1: far drop. Even though at that point it was so
Speaker 1: obvious that the client was innocent, the prosecutors still wanted
Speaker 1: to squeeze out a little bit. Now that I've had
Speaker 1: more time to think about it, that makes me hold
Speaker 1: that prosecutor in lower esteem. If he thought the person
Speaker 1: was guilty, he shouldn't have backed off. If he thought
Speaker 1: they were innocent, he should have backed off all the way.
Speaker 1: Because I've worked both sides of a courtroom, I know
Speaker 1: firsthand how motivated prosecutors and the judges can be to
Speaker 1: keep their active case loads as low as possible. For
Speaker 1: this reason, the system itself is bill in a way
Speaker 1: that discourages trials and encourages guilty please. The system would
Speaker 1: come to a grinding halt but for the fact that
Speaker 1: the overwhelming majority of cases are resolved by some sort
Speaker 1: of negotiated plea deal. For example, prosecutors have the power
Speaker 1: to charge much more serious crimes when someone decides not
Speaker 1: to plead guilty, and that's a big piece of the
Speaker 1: risk defendants have to consider before deciding to take a
Speaker 1: case to trial. But the thing about the trial tax,
Speaker 1: it's not a local or even a state level phenomenon.
Speaker 1: It's happening everywhere throughout the United States. This is defense
Speaker 1: attorney Michelle Tiegel, And what I think happens every day
Speaker 1: in this country is that people are overcharged and that
Speaker 1: they plead and sort of I hate to say, split
Speaker 1: the baby, but they have to make a decision about
Speaker 1: whether there willing to risk more or take the plea bargain,
Speaker 1: because the trial is always a risk for a person
Speaker 1: in their freedom, and the more serious the charge, the
Speaker 1: more of a risk it is. Do I think innocent
Speaker 1: people plead guilty all the time. I think it happens,
Speaker 1: but I think what happens even more they maybe have
Speaker 1: some responsibility for something, but they are being overcharged, and
Speaker 1: I saw that at all levels in the criminal system.
Speaker 1: I don't know if you use this term in Georgia,
Speaker 1: but in Texas they sometimes call it a shotgun charge. Basically,
Speaker 1: a prosecutor dumps everything but the kitchen sink hoping that
Speaker 1: something will stick. That's an unfair way to do it,
Speaker 1: but it's a way that prosecutors do it who are
Speaker 1: more focused, I think, on winning than on doing justice,
Speaker 1: because they walk away with a win in their you know,
Speaker 1: quiver or whatever instead of just getting the right result
Speaker 1: and serving the community. And that's a real that's a
Speaker 1: real unfortunate thing. I think it's a real problem in
Speaker 1: non violent offenses. I think, I mean, just from an
Speaker 1: opinion perspective, we're overcharging people, but sometimes I think we're
Speaker 1: also using the ability that prosecutors have in a lot
Speaker 1: of states of enhancements, different ways that they can make
Speaker 1: a crime more serious based on a person's priors, or
Speaker 1: the amount of drugs or other factors, or in the
Speaker 1: federal system, what we call relevant conduct, which is what
Speaker 1: I would say in LA terms, is all this other
Speaker 1: stuff that can make it a lot worse. Those factors,
Speaker 1: I think can really result in a person going away
Speaker 1: for something that in essence they are innocent of because
Speaker 1: that's really not what they're guilty of, or it's not
Speaker 1: it's not right for their case. Maybe they're not innocent
Speaker 1: of everything, are any of us. Michelle brings up a
Speaker 1: good point that we've addressed before, but I want to
Speaker 1: emphasize again the stories we've heard about wrongful conviction have
Speaker 1: shown fully innocent men get picked up by the police
Speaker 1: and tossed around by the justice system, and still none
Speaker 1: of them pled guilty. While I've seen and worked on
Speaker 1: cases where fully innocent people plead guilty because the risks
Speaker 1: are just too great, what happens more often, in my
Speaker 1: experience is people who are guilty in some way get
Speaker 1: punished for additional crimes that they are not guilty of.
Speaker 1: Any given criminal incident can have a variety of different
Speaker 1: pieces that carry different charges. For example, the use of
Speaker 1: a weapon or someone's mental state during an incident can
Speaker 1: affect charges and punishment. In order to help you're a conviction,
Speaker 1: some prosecutors will charge a defendant with anything that might
Speaker 1: possibly fit. In that way, people may be guilty of
Speaker 1: some of the charges but innocent on others. Here's the
Speaker 1: story of a case where a judge hit one of
Speaker 1: Ray Gary's clients extremely hard with a trial tax. This
Speaker 1: case happened many years ago, and I think you might
Speaker 1: recognize the prosecutor. I took on a client who was
Speaker 1: charged with armed robbery. My client and three other young
Speaker 1: men robbed a pet smart So they went out and
Speaker 1: they bought b B guns. But the BB guns looked
Speaker 1: real You couldn't tell that they were not real guns.
Speaker 1: Two of the boys go in and had inside a doghouse.
Speaker 1: So after the door was locked and the store was closed,
Speaker 1: the two armed robbers come out of the doghouse and
Speaker 1: round ever body up and they go open the door
Speaker 1: and let the other two robbers in. The victims are
Speaker 1: scared to death. Some of the people in there recognized,
Speaker 1: you know, one of the perpetrators, so they called the
Speaker 1: police and said so and so and three other guys
Speaker 1: just robbed us. So one guy pleads guilty right away,
Speaker 1: gets twenty to do ten, which was Phil Holloway's best offer.
Speaker 1: And really that was a good offer because the minimum
Speaker 1: sentence for armor robbery was twenty to do ten. I
Speaker 1: think so Phil had a pretty strong case. But my client,
Speaker 1: strangely would not plead guilty. He was like one of
Speaker 1: these ostriches that stick their head in the sand. And
Speaker 1: I tried to explain, I agree that it's too much.
Speaker 1: I agree that it's not fair, but you've got to
Speaker 1: choose between bad or worse, and if you go to trial,
Speaker 1: it's gonna be a lot worse. But his mother had
Speaker 1: a vision from God that he was going to be acquitted,
Speaker 1: and so we started the trial. My clients convicted on
Speaker 1: four counts of arms robbery. My client ends up getting
Speaker 1: forty years in prison without parole. In a matter of fact,
Speaker 1: that was about fifteen or sixteen years ago. And so
Speaker 1: all the other three who took the deal there, they've
Speaker 1: been out for four or five years. My guy is
Speaker 1: still in here from him every now and then, but
Speaker 1: really there's nobody that can let him out unless the
Speaker 1: judge was to change your mind. That case happened back
Speaker 1: when I was working at the District Attorney's office as
Speaker 1: an assistant district attorney. While I was not involved with
Speaker 1: the sentencing in the case, it was up to me
Speaker 1: to determine what charges to bring, and as Ray said,
Speaker 1: I offered this client the legal mandatory minimum ten years
Speaker 1: in prison. I wanted to bring back Jesse Evans to
Speaker 1: once more get a current prosecutor's perspective. Jesse has told
Speaker 1: us in the past that the charges that he brings
Speaker 1: are always determined by the facts of the case as
Speaker 1: he believes them to be. That is exactly the way
Speaker 1: that it is supposed to work, But sometimes some prosecutors
Speaker 1: have different motivations, particularly the motivation to get cases pled
Speaker 1: out and moved quickly. The trial tax can be a
Speaker 1: very powerful tool that some prosecutors use to make that happen.
Speaker 1: The reason that we have plea negotiations in large part
Speaker 1: is because of the idea that we want to have
Speaker 1: some certainty from all perspectives, from the victims perspective, from
Speaker 1: the prosecutor's perspective, from the defendant's perspective. There's no guarantee
Speaker 1: when you insist on a trial of what those and
Speaker 1: injur results are going to be, except for maybe this.
Speaker 1: The net outcome is no longer in your hands once
Speaker 1: that jury is selected, and once that trial starts a
Speaker 1: lot of the consequences for what happens is no longer
Speaker 1: going to be in the criminal defendants perspective. It's not
Speaker 1: going to be in the prosecution's perspective. Necessarily, it's going
Speaker 1: to be in the perspective of twelve jurors and ultimately
Speaker 1: the judge it's going to be responsible for sentencing thereafter.
Speaker 1: Fear of the unknown is an important factor for how
Speaker 1: we resolved cases within the criminal justice system. The fact
Speaker 1: of the matter is, just to take cop counting by example,
Speaker 1: we've got ten superior court judges. Let's assume that each
Speaker 1: judge has got one trial week per month. Start doing
Speaker 1: the math there, They've got two hundred cases on their
Speaker 1: trial calendar at any given point, hundred fifty two cases.
Speaker 1: We cannot try all of those cases within a given year.
Speaker 1: If we don't have the ability to resolve those, the
Speaker 1: criminal justice system is going to fall apart. And we
Speaker 1: all recognize that from prosecutor's perspective, from defense attorney's perspective,
Speaker 1: and from judges perspective. But understand this too. Look, the
Speaker 1: vast majority of cases resolving please because the person's caught
Speaker 1: and they did it, and they know it. And really
Speaker 1: what we're talking about is what's the best results. So
Speaker 1: to say, for example, you know those hundreds, if not
Speaker 1: thousands of cases where the police have arrested somebody and
Speaker 1: have got heroin in their pocket. We're not going to
Speaker 1: be trying cases of the person caught with heroin in
Speaker 1: their pocket, where the defense is going to be these
Speaker 1: are not my pants, right. That doesn't make sense the
Speaker 1: cases that tend to go to trial with more serious ones.
Speaker 1: When you're charged with murder, the consequences are so great
Speaker 1: that the chances of being able to resolve that case
Speaker 1: are diminished because of the nature of the charges. I
Speaker 1: don't disagree that there are probably instances where people are
Speaker 1: willing to enter a pola not because they believe they
Speaker 1: are in fact guilty of it, but because they believe
Speaker 1: the consequences are too great. I would say that those,
Speaker 1: in my opinion, are probably in the minority and not
Speaker 1: the majority. I've never been charged with the crimes that
Speaker 1: I can say, but I know I'm not going to
Speaker 1: be able to come to court and say that I'm
Speaker 1: guilty of something that I didn't do. I'm gonna insist
Speaker 1: on it on my trial. A judge, there's really nothing
Speaker 1: but a government bureaucrat. We have this perception of what
Speaker 1: a judge is, and you know they're perched up on
Speaker 1: a high platform in the courtroom and they're wearing that robe.
Speaker 1: But if you really think about it, they're actually a
Speaker 1: government bureaucrat, just like the clerk of the court that
Speaker 1: sits in front of them. A government workers always going
Speaker 1: to take the short way, so you know, the clerk
Speaker 1: of the court deals out the cases like a card
Speaker 1: dealer dealing out cards. Every judge in the same circuit
Speaker 1: gets the same amount of cases that's saying to them,
Speaker 1: and so you've got to finish those cases. And it
Speaker 1: don't look good if you have a big backlog and
Speaker 1: there's not enough time to try all the cases. One
Speaker 1: judge told me the most criminal jury trails he could
Speaker 1: have in a year is thirteen because they planned their
Speaker 1: whole year out and if something falls through, that takes
Speaker 1: you down to twelve to ten. I talked to that
Speaker 1: same judge a few years later, and he only had
Speaker 1: four criminal jury trials a few years later. So there's
Speaker 1: not enough time. So I say, I got a client
Speaker 1: that's charged with burglary. If we have a trial, I'm
Speaker 1: gonna take about four full days of the court's time.
Speaker 1: If I played guilty to a plea bargain, I'm gonna
Speaker 1: take about fifteen minutes of the court time. Who wouldn't
Speaker 1: want to go the fifteen minute route as opposed to
Speaker 1: the four day You know, everybody's motivated to try to
Speaker 1: do a plea bargain, and that's why in most cases
Speaker 1: our plea bargains in very few cases are trials. Now,
Speaker 1: the way they get you to do that, the word
Speaker 1: gets out that there's a lot more punishment. That reminds
Speaker 1: me of of a story about a judge wanting to
Speaker 1: make it short. And I had a client who he
Speaker 1: wasn't innocent necessarily, he was more in the gray area.
Speaker 1: We wanted to trowl. So we got the phone call
Speaker 1: be here Tuesday afternoon at one thirty to start to trial.
Speaker 1: So the judge was in his chambers, which was right
Speaker 1: next to where I was sitting in so I can
Speaker 1: hear the judge and what I hear as him saying,
Speaker 1: played golf today. Yeah, yeah, I can make it. I'm
Speaker 1: n percent here, I can make it. Yeah, plan on
Speaker 1: me being there. So I'm thinking, hey, if I go
Speaker 1: to trial, he's not gonna make that tea time. He's motivated.
Speaker 1: This is good. So the judge buzzes out to the
Speaker 1: administrative assistant send both lawyer us back here, and so
Speaker 1: we sit down and he says, can't you boys work
Speaker 1: this out? I said, well, I think so jah, And
Speaker 1: the prosecutor said, well, I don't know. I don't know.
Speaker 1: I'm under pressure from higher ups. The judge said, what
Speaker 1: are you looking for a raid? I said, I'm looking
Speaker 1: for one year to serve in you know, about five
Speaker 1: years on probation. As the prosecutor, what you offer him?
Speaker 1: He said, well, I offered him three years to serve
Speaker 1: and two years on probation. Judge said, can't you come
Speaker 1: down to one year? He said, I really just don't
Speaker 1: think I can. The judge looked at me and he said,
Speaker 1: why don't you get your client to plead guilty without
Speaker 1: having a plea bargain, which ordinarily would be playing Russian roulette.
Speaker 1: If your client doesn't like what the sentence is, I'll
Speaker 1: let you withdraw it and proceed with a trial. Which
Speaker 1: was the same thing as him telling me I'm going
Speaker 1: to give you exactly what you said you wanted. So
Speaker 1: I said, yeah, yeah, we'll we'll plead guilty with no
Speaker 1: deal on the table. So we played guilty, and that's
Speaker 1: exactly what happened and the judge went to play golf.
Speaker 1: It's just a bunch of unique circumstances that resulted in
Speaker 1: a me not having to try the case, be my
Speaker 1: client not risking going to prison longer. And it actually
Speaker 1: took the pressure off the d A too, because it
Speaker 1: wasn't his fault. You know, he could go back and say, hey,
Speaker 1: I can't stop him from pleading guilty. Judge didn't do
Speaker 1: what I wanted him to, so the d A was
Speaker 1: off the hook. The DA didn't have to try the case.
Speaker 1: I was happy, my client was happy, the judge was happy.
Speaker 1: This wasn't something the judge told me. This was just
Speaker 1: something I overheard. Before we finish up this episode, I
Speaker 1: wanted to play for you. One more point that defense
Speaker 1: attorney and friend of the show, Ashley Merchant, brought up.
Speaker 1: There's another consequence to mandatory minimum sentences that she sees
Speaker 1: in her work that might not be immediately apparent. I
Speaker 1: do a lot of work with prison inmates them and
Speaker 1: I think a lot of people don't think about this.
Speaker 1: When you have a mandatory minimum where there's no parole,
Speaker 1: and you take away hope from a prison in made
Speaker 1: of getting out, you create a very, very scary prison system.
Speaker 1: The behavioral incentive for inmates is parole. If you sentence
Speaker 1: people to twenty five years to life without parole, they
Speaker 1: are going to go into prison and commit more crimes
Speaker 1: because they're never going to get out and they have
Speaker 1: no hope of every getting out and they know they're
Speaker 1: never gonna get out. What are you gonna do to them?
Speaker 1: Give them more time. So I've had clients who told
Speaker 1: me about They're like, if I'm never gonna get out,
Speaker 1: I'm going to sell drugs in prison and send the
Speaker 1: money to my family because that's the only way i
Speaker 1: can make money for my family, and I'm never getting out.
Speaker 1: I think you're seeing inmates that are willing to take
Speaker 1: chances on crimes because it can't get me where For them,
Speaker 1: you know, it becomes the Department of punishment, not the
Speaker 1: Department of correct since you're not trying to correct behavior
Speaker 1: if you're locking someone up and never letting them out
Speaker 1: because of a mandatory minimum. There's so much more to
Speaker 1: cover on the risks associated with going to trial and
Speaker 1: the hidden costs also associated with going to trial. So
Speaker 1: we'll continue this topic next week. Plus there's a legal
Speaker 1: tool we haven't yet discussed that allows people to take
Speaker 1: advantage of a plea deal without ever saying that they
Speaker 1: are guilty. One of the things we found out while
Speaker 1: making this show is that tool, which I use for
Speaker 1: a lot of my cases, is more controversial than I thought.
Speaker 1: Next time on Sworn, the blame in part is on
Speaker 1: all of us, because this would not be occurring or
Speaker 1: not occurring in the extreme way that we're describing if
Speaker 1: there were more judges, more resources for criminal defense lawyers,
Speaker 1: especially for indigence or in depth enquiries, lower penalties. If
Speaker 1: you took the person in the street and showed them
Speaker 1: what you just described, I think most people would say,
Speaker 1: oh my gosh, I never thought of worked like that.
Speaker 1: I mean, that's like what they used to do in
Speaker 1: Soviet Russia. That stuff that's not justice, but they have
Speaker 1: no idea. Sworn is a production of Tenderfoot TV and
Speaker 1: I Heart Radio. Our lead producer is Christina Dana. Executive
Speaker 1: producers are Payne Lindsay and Donald Albright for Tenderfoot TV,
Speaker 1: Matt Frederick and Alex Williams for I Heart Radio, and
Speaker 1: myself Philip Holloway. Additional production by Trevor Young Mason Lindsay,
Speaker 1: Mike Rooney, Jamie Albright and Halle Beadal. Original music and
Speaker 1: sound designed by Making Up and Vanity Set. Our theme
Speaker 1: song is Blood in the Water by Layup. Show art
Speaker 1: and design is by Trevor Eisler, editing by Christina Dana,
Speaker 1: Mixing and mastering by Mike Rooney and Cooper Skinner. Special
Speaker 1: thanks to the team at I Heart Radio from u
Speaker 1: T a or In Rosenbaund and Grace Royer, Ryan Nord
Speaker 1: and Matthew Papa from the Nord Group, back Media and
Speaker 1: Marketing and Station sixteen. I'd also like to extend a
Speaker 1: very personal and special thanks to all of our contributors
Speaker 1: and guests who have helped to make all of these
Speaker 1: episodes possible. You can find Sworn on Facebook, Twitter, and
Speaker 1: Instagram at Sworn podcast and follow me your host, Philip
Speaker 1: Holloway on Twitter at phil Holloway e s Q. Our
Speaker 1: website is sworn podcast dot com, and you can check
Speaker 1: out other Tenderfoot TV podcasts at www dot tenderfoot dot tv.
Speaker 1: If you have questions or comments, you can email us
Speaker 1: at Sworn at Tenderfoot dot tv or leave us a
Speaker 1: voicemail at four zero four four one zero zero four
Speaker 1: f one. As always, thanks for listening. Do you know
Speaker 1: what a podcast is? Rae Well, my impression of it,
Speaker 1: although I've never heard one, is that it's uh like
Speaker 1: a radio show, but instead of getting it on the radio,
Speaker 1: you get it off the computer, right, I mean, I'm
Speaker 1: from the old school, so I've never actually heard a podcast,
Speaker 1: but now that I'm involved in one, I'm intend to,
Speaker 1: you know, listen to one, especially your show, if I
Speaker 1: can find it.