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Speaker 1: If you're going to place your left hand on the

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Speaker 1: Bible and raise your right hand, and please repeat after

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Speaker 1: me and I do solemnly swear the jury theven titled

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Speaker 1: action find the defendant guilty of the time. It makes

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Speaker 1: no sense, it doesn't fit. If it doesn't fit, you

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Speaker 1: must aquit. We all took the same of the office.

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Speaker 1: We're all bound by that common commitment to support and

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Speaker 1: defend the Constitution, to bear true faith in allegiance to

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Speaker 1: the Saint, that you faithfully discharge the duties of our office.

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Speaker 1: Do you solemnly swear or affirm that the testimony you're

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Speaker 1: about to give will be the truth, the whole truth,

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Speaker 1: and nothing but the truth. From Tenderfoot TV and I

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Speaker 1: Heart Radio, this is Sworn. I'm your host, Philip Holloway.

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Speaker 1: I'm sure you've seen over the course of your career

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Speaker 1: as I have, that over the decades, the sentences have

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Speaker 1: gotten so much longer, that the risks have gotten a

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Speaker 1: lot higher, and so now it becomes not like, well,

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Speaker 1: if you go to trial, you're probably looking at nine years.

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Speaker 1: They're offering you four years. Now you get into these

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Speaker 1: crazy numbers where it's too risky to go to trial

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Speaker 1: and It's very hard for defense attorneys to advise their

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Speaker 1: clients on police bargaining. It's very difficult conversation to have.

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Speaker 1: I remember saying in a one client once who wanted

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Speaker 1: to go to trial, and the case was absolutely horrible.

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Speaker 1: I mean, the evidence they had on him was indisputable

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Speaker 1: that he was guilty. I remember saying to this guy,

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Speaker 1: I said, well, picture this, how do you think the

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Speaker 1: trial will go if I'm so lucky as I get

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Speaker 1: on the jury? Your mom, both your grandparents, your cousins,

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Speaker 1: your uncle's, your aunts, I get an entire jury of

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Speaker 1: just your relatives. Do you think I could convince them

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Speaker 1: that you're innocent? And it came to the conclusion that

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Speaker 1: I couldn't convince his family he was innocent. I said, well,

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Speaker 1: how do you think I'm gonna do its? Well? Strangers?

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Speaker 1: And that was the sobering moment for him. It's tough

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Speaker 1: because it's their decision. You don't want to pressure them

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Speaker 1: into making it, but you want to give them a

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Speaker 1: realistic assessment of their chances because that's what they're looking

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Speaker 1: at you for The voice at the beginning of the

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Speaker 1: episode with Justin Brooks, the current director of the California

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Speaker 1: Innocence Project. Last week we started looking into the high

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Speaker 1: costs and the extreme risk associated with taking a criminal

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Speaker 1: case to trial, and how because of that risk, people

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Speaker 1: sometimes will plead guilty to things that they have not done.

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Speaker 1: Chief among this extreme risk is the risk of a

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Speaker 1: higher prison sentence that often comes after someone refuses to

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Speaker 1: accept a plea bargain. There are many factors that can

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Speaker 1: affect the ultimate sentence imposed in any given case. These

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Speaker 1: actors frequently include shotgun charging and high mandatory minimum sentences.

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Speaker 1: So we asked Kevin Ring about this trial tax. Kevin

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Speaker 1: is the head of Families Against Mandatory Minimums. While Kevin

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Speaker 1: himself was on trial, he had to make this agonizing

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Speaker 1: choice about whether or not to plead guilty to crimes

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Speaker 1: that he didn't believe he committed or faced an extended

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Speaker 1: prison sentence following trial. Kevin gives us his firsthand account

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Speaker 1: of his experience with the hidden costs of trial, including

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Speaker 1: the trial tax and the more straightforward costs that come

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Speaker 1: with taking a case to trial. I think the trial

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Speaker 1: tax is something that's not well understood. I think they've

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Speaker 1: been brainwashed into thinking that if you're found guilty, then

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Speaker 1: you should have taken whatever deal was offered. Put aside

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Speaker 1: the fact that you might have thought you were in

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Speaker 1: this send put aside the fact that you have a

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Speaker 1: constitutional right to go to trial, even if you think

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Speaker 1: you're dead guilty. You have a constitutional right to put

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Speaker 1: the government to its proof by going to trial. But

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Speaker 1: there has developed in our culture this sense that if

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Speaker 1: you don't do what the prosecutor decides, and you don't

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Speaker 1: plead guilty and you use the resources of a trial,

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Speaker 1: that you're just going to open yourself to a longer penalty.

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Speaker 1: I think when people are confronted with individual examples of it,

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Speaker 1: they see it, but it's not something they think about

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Speaker 1: because unless you're involved in the system, it's just not

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Speaker 1: something you think of. Kevin had to deal with this

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Speaker 1: firsthand when he went to trial. They brought me in

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Speaker 1: and they said, you know, after two years of cooperating

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Speaker 1: and other other evidence gathering, here's what we have against you.

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Speaker 1: And if you plead and cooperate, will charge you with

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Speaker 1: these things. And if you don't and you go to trial,

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Speaker 1: will charge you with all of these different crimes. It

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Speaker 1: gets the point where it's not even your conduct, it's

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Speaker 1: what they decide to charge as your conduct that can

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Speaker 1: determine the outcome of your sentence. Just like mandatory minimum

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Speaker 1: sentense and guidelines, which are not statutory they're usually created

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Speaker 1: by commission, are just as malleable by prosecutors. They can,

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Speaker 1: you know, sometimes implicate certain enhancements for use of a

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Speaker 1: computer or being the leader of a conspiracy. They can

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Speaker 1: use and manipulate the sentence and guidelines just like they

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Speaker 1: do mandatory minimums, so that even two similar defendants get

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Speaker 1: much different sentences. Kevin points out that prosecutors will sometimes

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Speaker 1: incentivize a defendant to take a plea deal rather than

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Speaker 1: have him or her exercise their right to a trial.

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Speaker 1: A normal plea bargain is the defendant will come in

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Speaker 1: and if he or she is guilty and the government

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Speaker 1: um wants to dispose of the case without having to

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Speaker 1: go to trial, they'll say, look, this crime carries up

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Speaker 1: to five year penalty. We will tell the judge that

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Speaker 1: you cooperated and so you should get a shorter sentence.

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Speaker 1: When Amanda Tory minimum attaches to some of these crimes,

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Speaker 1: the prosecutor will say, will charge you with this lesser

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Speaker 1: offense that doesn't carry a mandatory minimum. If you plead

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Speaker 1: and then recommend a shorter sentence. But if you decide

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Speaker 1: to go to trial and put us through the hassle

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Speaker 1: of having to prove our case and win a conviction,

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Speaker 1: we're going to bring all these charges against you, and

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Speaker 1: some of those charges carry mandatory sentences, and when they

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Speaker 1: do that, it doesn't matter what the judge thinks. At

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Speaker 1: that point. If you're convicted, you're going to face a

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Speaker 1: much higher penalty. It's just become too much of a

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Speaker 1: game where once the prosecutor decides you're guilty, your options

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Speaker 1: are very limited. I had friends of mine who were

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Speaker 1: law and order types who said, look, I don't think

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Speaker 1: you're guilty, but you have to plead guilty just to

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Speaker 1: make this go away. There's something wrong when that's happening.

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Speaker 1: Once again, Kevin saw this play out in his own

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Speaker 1: case when he went to the sentencing. Phaise, the ringleader

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Speaker 1: of this lobby and conspiracy, had been sentenced to four years.

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Speaker 1: The government asked for seventeen and a half to twenty

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Speaker 1: two years for me, and the judge said, how can

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Speaker 1: this be possible. You know that he was an underling.

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Speaker 1: How can he deserve this much time? You're currently punishing

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Speaker 1: him for going to trial, and the prosecutors said, no,

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Speaker 1: we're not punishing if we're going to trial. But he's

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Speaker 1: just not getting the reward of pleading guilty and cooperating.

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Speaker 1: And she said, isn't that just the different side of

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Speaker 1: the same coin. I don't think there's any philosophical issue

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Speaker 1: with giving somebody some credit for pleading guilty and cooperating.

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Speaker 1: I think if somebody is guilty and they are willing

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Speaker 1: to spare the government and taxpayers the cost of a trial,

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Speaker 1: and they're willing to accept a shorter sentence, which they're

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Speaker 1: going to get if they accept responsibility, I think the

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Speaker 1: fact that they might get a shorter sentence is okay.

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Speaker 1: And I think that incentive by it existing, will, you know,

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Speaker 1: cause some people to plead guilty, and that's okay. The

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Speaker 1: problem that happens is they not only get a shorter sentence,

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Speaker 1: but those who don't don't just get the sentence that

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Speaker 1: the other person would have got. They get a much

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Speaker 1: longer sentence because once you decide then to go to trial,

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Speaker 1: they usually add charges and penalties. The delta is not

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Speaker 1: just if a was the utopian perfect punishment and the

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Speaker 1: person who pled got two years less than a and

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Speaker 1: now you get a for going to trial. No, you

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Speaker 1: get a plus five. If I had pled guilty and cooperated,

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Speaker 1: the government was all but offering me and no jail deal.

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Speaker 1: But when I went to trial and lost, they were

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Speaker 1: now asking with a straight face for seventeen and a

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Speaker 1: half to twenty two years. And so luckily I had

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Speaker 1: a judge who was a former criminal defense lawyer and

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Speaker 1: a senior judge who wasn't just accepting the government's arguments

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Speaker 1: at face value and really pushed back. Kevin says this

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Speaker 1: sort of thing happens in courtrooms all across America every

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Speaker 1: single day. In Florida, for example, there are cases where

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Speaker 1: people have used a gun to fire what's called a

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Speaker 1: warning shot. For example, during an altercation, somebody might fire

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Speaker 1: the weapon up into the air as a warning, and

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Speaker 1: they would argue this is a form of self defense

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Speaker 1: to deter an attacker. You're not supposed to use a

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Speaker 1: gun that way, but these people felt threatened, and the

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Speaker 1: prosecutor said, well, that's aggravated assault. You've threatened people by

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Speaker 1: shooting a gun. And the person will say, no, I

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Speaker 1: was acting in self defense. I felt threatened. The prosecutor

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Speaker 1: may say okay, well, listen, just plead guilty to this

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Speaker 1: crime and I'll let you go with three years, and

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Speaker 1: the person said, no, I think I'm I acted in

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Speaker 1: self defense. I'll go to trial. Well, once they go

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Speaker 1: to trial, that aggravated assault and the firing of a weapon,

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Speaker 1: if they're found guilty, carries a fifteen year mandatory minimum.

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Speaker 1: So we have cases in Florida where people are serving

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Speaker 1: fifteen year sentences even after the prosecutor offered them a

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Speaker 1: deal that would have had them serve three years. That

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Speaker 1: twelve years has nothing to do with public safety. It

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Speaker 1: just has to do with the fact that the defendant,

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Speaker 1: for reasons good or bad, wanted to go to trial

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Speaker 1: and try to approve his or her innocence, and so

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Speaker 1: mandatory minimums can make the difference between pleading and not

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Speaker 1: pleading so great it coerces people into pleading guilty, whether

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Speaker 1: they're innocent or not. Kevin recognizes that judges are sometimes

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Speaker 1: in a tough position. Judges understand that plea deals are

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Speaker 1: a necessary and important part of the system, and that

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Speaker 1: there just aren't enough resources for every case to go

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Speaker 1: to trial. I think a bad habit has developed where

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Speaker 1: they're not scrutinizing the plea deals as carefully as they should.

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Speaker 1: They should make sure that plea deals aren't being used

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Speaker 1: by prosecutors to go after the small fish and let

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Speaker 1: the sharks get out with a shorter sentence. The thing

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Speaker 1: I I try to emphasize is that I'm relatively privileged.

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Speaker 1: I have, you know, a great deal of education. I

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Speaker 1: was relatively um well off. But what people don't understand

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Speaker 1: is when the government comes after you, you can't fight it.

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Speaker 1: You can't afford to fight it. People will say things like, oh, yeah,

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Speaker 1: going to trials expensive, it's not expensive, in a sort

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Speaker 1: of throwaway line that like, you know, a new vacuum

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Speaker 1: cleaner is expensive. My two trials and appeals cost two

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Speaker 1: million dollars, and I didn't have two million dollars. I

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Speaker 1: had to. I mean, my brother took out a mortgage

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Speaker 1: on one of his houses. I spent all of my

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Speaker 1: family savings to try to prove my innocence. I lost

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Speaker 1: all of that money. Then my em lawyers were pointed

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Speaker 1: as public defenders to finish the second trial and appeals.

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Speaker 1: You just can't do it. That's why of all federal

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Speaker 1: cases now and in plea deals, trials have vanished because

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Speaker 1: no one can do it. And so that's the thing

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Speaker 1: when somebody says, what do you think about indigent defense

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Speaker 1: and the idea that you know, we should pay for

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Speaker 1: somebody having a defense, I don't like that term because

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Speaker 1: I don't think only the indigence can't afford a defense.

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Speaker 1: No one can. M not only is going to trial

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Speaker 1: a risky proposition and that you no longer have control

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Speaker 1: over the result. Kevin is very right here. Going to

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Speaker 1: trial is extremely expensive financially. We've talked throughout this season

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Speaker 1: about all of the financial barriers that indigent defendants face

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Speaker 1: in trying to win their trial. These things range from

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Speaker 1: overworked public defenders to the costs associated with paying for

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Speaker 1: forensic testing and expert testimony. But like Kevin said, those

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Speaker 1: costs add up for everyone. Many people who are not

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Speaker 1: indigent can become indigent just by being accused of a crime.

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Speaker 1: If a defendant wants their day in court, they will

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Speaker 1: have to consider a lot of things, including the trial

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Speaker 1: tax as well as the financial costs, both of which

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Speaker 1: are less costly if they decide to take a plea deal.

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Speaker 1: To take a plea deal, defendants normally have to admit

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Speaker 1: guilt under oath. This can present a huge problem for

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Speaker 1: people who are actually innocent. There is, though a way

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Speaker 1: around this dilemma. If an innocent person wants to take

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Speaker 1: advantage of a more or less favorable plea deal rather

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Speaker 1: than risk getting hit with the trial tax or perhaps

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Speaker 1: a mandatory minimum sentencing following a jury trial, they can

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Speaker 1: enter a special type of plea known as an Alfred plea.

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Speaker 1: In the States system, I see Alfred please quite regularly.

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Speaker 1: Many of my own clients have opted to enter Alfred

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Speaker 1: please rather than risk going to trial. They felt it

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Speaker 1: was just in their best interests to do so. But

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Speaker 1: while working on this topic for the show, I had

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Speaker 1: a surprising conversation with Judge Jed Raikoff, the federal judge

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Speaker 1: from New York, who, as you'll hear, is not a

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Speaker 1: huge fan of this type of plea. The federal law

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Speaker 1: and the law in some states allows theoretically a person

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Speaker 1: to come into court a defendant and say, even though

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Speaker 1: I'm innocent, I don't want to take the risks, and

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Speaker 1: I think the government is probably likely to convict me,

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Speaker 1: but I'm prepared to accept that. So I may pay

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Speaker 1: my innocence, but I will take the consequences of a

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Speaker 1: guilty place. This has been approved by the Supreme Court

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Speaker 1: in case called Alfred. But you know, almost never see it.

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Speaker 1: You never see it in the federal system and very

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Speaker 1: very rarely in the state system. And here's why our

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Speaker 1: criminal justice system is not an administrative law system. It

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Speaker 1: is ultimately based on, or attempts to be based on,

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Speaker 1: an application of basic moral precipents. And no judge wants

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Speaker 1: to accept a guilty plea from someone who says he's citizen,

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Speaker 1: and no prosecutor, for that matter, feels comfortable accepting a

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Speaker 1: play from someone who says he's innocent. So while ironically

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Speaker 1: and Alfred plea may be closer to the truth of

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Speaker 1: what's really going on in some circumstances, you have almost

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Speaker 1: never seen. What if I told you that I practiced

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Speaker 1: in an area where alfred please are in fact routine,

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Speaker 1: I guess my question that is to you why our

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Speaker 1: prosecutors going along with that? Well, I can tell you

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Speaker 1: just based on my own experience, and I've done a

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Speaker 1: handful of Alfred Please myself just this year in and

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Speaker 1: I think the short answer is that they are aware

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Speaker 1: of how powerful mandatory minimum sentencing is they are aware

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Speaker 1: that they can use this leverage to avoid having to

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Speaker 1: go through the halsehol and expensive a trial, and judges

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Speaker 1: are happy to take in Alfred plea because it takes

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Speaker 1: one less case off of a crowded docket and move

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Speaker 1: the business. So to speak, Well, you've just identify, which

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Speaker 1: makes sense from a efficiency standpoint, is to my mind,

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Speaker 1: totally repugnant from any moral standpoint. The prosecutor is saying, Judge,

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Speaker 1: he claims he said it, and we don't believe him

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Speaker 1: for one minute. But rather than have to go to

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Speaker 1: trial and prove it, we don't have the resources, we'll

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Speaker 1: just take the plea. The dependent and the fence lawyer says, oh, Judge,

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Speaker 1: my guy is really innocent. He's never did this at all.

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Speaker 1: But my gosh, we're not prepared to take the risk

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Speaker 1: going the trial. That's that's too dangerous. So rather than

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Speaker 1: trying to prove our innocence, we will take the plague.

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Speaker 1: And the judge is saying, it all sounds fine to

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Speaker 1: me because I've got twenty cases. I've got it here

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Speaker 1: today and just at least get it down to nineteen.

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Speaker 1: What you're saying is a total disregard for finding out

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Speaker 1: the ultimate truth, a total disregard or putting the government

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Speaker 1: to its proof, a total disregard for a judge's obligation

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Speaker 1: to ascertain his best he or she can whether a

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Speaker 1: person is really guilty or not. It becomes instead of justice,

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Speaker 1: it just becomes convenient. Having said that, the reason this

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Speaker 1: is going on is because of most cases the very

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Speaker 1: high penalties that you faced if you go to trial.

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Speaker 1: So basically the way the plate coloque we works very

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Speaker 1: similar to the one you described in the federal court.

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Speaker 1: Where you sit, you get to the part of the

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Speaker 1: questioning where the court says to the defendant, are you

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Speaker 1: in fact guilty? It's a simple yes or no question

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Speaker 1: if the person is under oath, right, And I'm a

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Speaker 1: lawyer and I can't have some body under oath that's

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Speaker 1: knowingly committing perjury. So if I've got a client who

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Speaker 1: is wanting to take advantage of a plea deal basically

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Speaker 1: to avoid say a mandatory minimum, but at the same

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Speaker 1: time they maintain their innocence, we can't give it yes

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Speaker 1: or no answer. So we've got to telegraph to the

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Speaker 1: court ahead of time that this is going to be

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Speaker 1: plea made under under offer and Basically, all that the

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Speaker 1: judge does is say, you know, your lawyer has told

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Speaker 1: me that you want to enter a plea and that

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Speaker 1: you still maintain your innocence. In order for me to

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Speaker 1: accept your plea, Mr or misdefendant, you've got to satisfy me,

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Speaker 1: as the judge, that you think that the prosecution may

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Speaker 1: very well be able to convict you, and that because

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Speaker 1: of that it's in your best interest to take advantage

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Speaker 1: of this plea. Is that what you want to do?

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Speaker 1: And so then they bull it down to just a

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Speaker 1: different yes or no question, But it takes about five

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Speaker 1: minutes or less. Well that that is certainly streamline. Oh,

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Speaker 1: I was in court last week and I saw a

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Speaker 1: judge and we were one of the cases literally stand

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Speaker 1: I think it was twelve defendants in the well of

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Speaker 1: the courtroom and uh have them standing side by side

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Speaker 1: with their counsel just doing mass please, Uh, just going

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Speaker 1: through the questionnaire that you Mr. So and so, you

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Speaker 1: miss so and so, and then just yes or no

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Speaker 1: all the way down. And they were doing you know,

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Speaker 1: ten or twelve at the time. The blame in part

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Speaker 1: is on all of us because this would not be

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Speaker 1: occurring or not occurring in the extreme way that we're describing.

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Speaker 1: If there were more judges, more resources for criminal defense lawyers,

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Speaker 1: especially for indigence or in depth enquiries, lower penalties. Why

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Speaker 1: do we have all this? We have all this because

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Speaker 1: the legislature toughened up in their view in the nineties, seventies, eighties,

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Speaker 1: and nineties to combat what was an undeadly rising crime rates.

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Speaker 1: Crime rates have come way down since then, but the

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Speaker 1: laws remain on the books. Two plus million people are

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Speaker 1: the jail or prison, and we have these very superficial proceedings.

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Speaker 1: If you took the person in the street and showed

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Speaker 1: them what you just described the mass play, I think

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Speaker 1: most people would say, oh my gosh, I ever thought

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Speaker 1: of work like that. I mean, that's like what they

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Speaker 1: used to do in Soviet Russia. That's not that's not justice.

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Speaker 1: But they have no idea. Ashley Merchant and I see

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Speaker 1: very similar types of cases in our law practices. So

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Speaker 1: I wanted to get her thoughts on Alfred please, and

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Speaker 1: on Judge Rakoff's assessment of what he sees as the

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Speaker 1: problem with Alfred. Please. She brought up this new point,

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Speaker 1: and that is that Alfred is another area where prosecutors

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Speaker 1: can control the charges by refusing to even offer a

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Speaker 1: plea bargain unless the defendant admits guilt. I have another

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Speaker 1: case that I can give a parallel to where I

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Speaker 1: have a child who was fifteen years old at the time.

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Speaker 1: He was alleged to have abused his younger cousin and

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Speaker 1: he said he didn't do it. And he was fifteen,

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Speaker 1: I mean, he was a kid, but he was charged

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Speaker 1: as an adult. It's a twenty year mandatory prison sentence

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Speaker 1: on that. So he was offered ten years pre trial

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Speaker 1: and but a lifetime sex offender registrate and pre trial.

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Speaker 1: He just said, I can't agree that I did something

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Speaker 1: I didn't do. And in that case, the prosecut or

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Speaker 1: was not willing to accept this Alfred plea. Part of

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Speaker 1: the plea deal in order to reduce the charges from

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Speaker 1: the charges that carried that twenty year mandatory minimum, said

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Speaker 1: if you don't admit guilt, I'm not going to get

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Speaker 1: rid of that charge and let you get the ten

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Speaker 1: year sentence. He just said, I can't do it. I

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Speaker 1: can't admit that I did something I didn't do. So

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Speaker 1: he went to trial. He was convicted. Only was the

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Speaker 1: testimony of his cousin he testified that he didn't do it,

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Speaker 1: and we're now on appeal. I didn't represent him at

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Speaker 1: the trial, but I now represent him on appeal, and

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Speaker 1: we've gotten an offer to fifteen years, and he's told

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Speaker 1: me he wants to take it, but he cannot admit guild.

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Speaker 1: And I told the prosecutor, you know, I can't put

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Speaker 1: him up and have him under oath admit guilt because

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Speaker 1: I don't think he did it. And I can't put

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Speaker 1: him up there and have him commit perjury. And of

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Speaker 1: course they're saying, well, he's not committing perjury's lying to you.

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Speaker 1: But how do you know. He's asked me, do I

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Speaker 1: need to lie to get this deal? And you can't lie.

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Speaker 1: I can't have you lie on the stand. I can't

377
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Speaker 1: have you under oath lie about something. But at the

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Speaker 1: same time, I don't want to be the reason that

379
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Speaker 1: he can't get a lesser sentence and can't get out prison.

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Speaker 1: You know, he's a kid. I think a lot of

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Speaker 1: times criminal defendants get up there and they lie and

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Speaker 1: say they did something they didn't do just to get

383
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Speaker 1: the deal, and I cannot say I blame them. Said

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Speaker 1: that in the federal system, of course, where he works.

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Speaker 1: I think he used the phrase theoretically, this is possible,

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Speaker 1: and he very not so suddenly indicated that's really the

387
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Speaker 1: exception rather than the rule, at least in the framework

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Speaker 1: of the cases that he sees in the federal system.

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Speaker 1: And I said, Judge, you know what if I told

390
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Speaker 1: you that it's really really common, and I've done several

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Speaker 1: already this year in the state system here alone. He

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Speaker 1: seemed to be a little bit surprised by that. But

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Speaker 1: it's really something that's used a lot, and it's used

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Speaker 1: as a way, I think, to permit people to take

395
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Speaker 1: advantage of plea offers because they think they're gonna get

396
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Speaker 1: hammered by a judge or by mandatory minimum sentence if

397
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Speaker 1: they don't take some kind of a plea deal, and

398
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Speaker 1: so they have this mechanism called an alpha plea and

399
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Speaker 1: they use it to get past that question when the

400
00:24:00,720 --> 00:24:02,520
Speaker 1: judge says, are you in fact guilty? And all you

401
00:24:02,520 --> 00:24:04,840
Speaker 1: gotta do is say, Jude, I'm pleading under Alfred versus

402
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Speaker 1: North Carolina, and we think that it's in our best

403
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Speaker 1: interest to take this plea. I think it's important to

404
00:24:09,920 --> 00:24:12,240
Speaker 1: parallel the two systems to sort of understand why he

405
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Speaker 1: would say that the federal government operates completely differently than

406
00:24:16,880 --> 00:24:20,719
Speaker 1: the state government in prosecutions. When the federal government comes knocking,

407
00:24:20,920 --> 00:24:23,399
Speaker 1: they have a solid case, they've got you. I do

408
00:24:23,480 --> 00:24:25,600
Speaker 1: federal work, but when I get it, I'm like, because

409
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Speaker 1: I just there's not a whole lot I can do

410
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Speaker 1: as a criminal defense attorney for the actual charges. What

411
00:24:30,200 --> 00:24:32,280
Speaker 1: we can do as a criminal defense attorneys, we can

412
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Speaker 1: work on sentencing. Once the federal government indicts or charges you,

413
00:24:37,200 --> 00:24:40,399
Speaker 1: they usually have significant evidence against you. And so the

414
00:24:40,440 --> 00:24:43,480
Speaker 1: state court has to have these alfred police because they

415
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Speaker 1: can't move cases otherwise. Where the federal system, the judges

416
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Speaker 1: they don't want to take a plea from someone that

417
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Speaker 1: didn't do it. They don't want to take that. That

418
00:24:52,720 --> 00:24:55,920
Speaker 1: to them is just it's awful. It's a miscarriage of justice.

419
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Speaker 1: Where in the state system they're just like, line them up,

420
00:24:59,000 --> 00:25:01,280
Speaker 1: we got to move them. The second thing is they

421
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Speaker 1: also have a couple rights built in that we don't

422
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Speaker 1: have in state court. They have a federal Speedy Trial Act,

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Speaker 1: and so you're not going to sit for three years

424
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Speaker 1: in jail on a federal case like you do in

425
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Speaker 1: state court. And that delay is one of the reasons

426
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Speaker 1: that people want to take Alfred please because they don't

427
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Speaker 1: want to sit in jail for three years. The other

428
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Speaker 1: thing is they tend to give folks bond. In federal cases,

429
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Speaker 1: they've got a Bond Act also a bail Bond Act,

430
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Speaker 1: where the judges have a very thoughtful bail hearing and

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Speaker 1: they don't InCAR strate pre trial like they do in

432
00:25:32,960 --> 00:25:35,639
Speaker 1: state court. In state court, if you're charged with a felony,

433
00:25:35,680 --> 00:25:38,119
Speaker 1: a serious felony, it's impossible to get bond in most cases.

434
00:25:38,520 --> 00:25:40,159
Speaker 1: When I was in Fulton County, for example, at the

435
00:25:40,160 --> 00:25:42,720
Speaker 1: public Defender, my clients couldn't afford bond. So maybe they'd

436
00:25:42,720 --> 00:25:44,920
Speaker 1: have a five bond, but they didn't have five hundred dollars.

437
00:25:45,200 --> 00:25:47,880
Speaker 1: They would be in a position where, unlike the federal

438
00:25:47,920 --> 00:25:50,680
Speaker 1: court where they've got a speedy trial and a right

439
00:25:50,720 --> 00:25:53,000
Speaker 1: to bail, there in the state court they've got no

440
00:25:53,080 --> 00:25:56,639
Speaker 1: bail and they've got no statutory automatic speedy trial right.

441
00:25:56,920 --> 00:25:59,520
Speaker 1: And they feel desperate. You know, they're arrested, they're in jail.

442
00:25:59,560 --> 00:26:02,280
Speaker 1: It's an awful, scary, violent place, and they just want

443
00:26:02,280 --> 00:26:04,720
Speaker 1: to go home. And they're offered probation and a fine,

444
00:26:05,240 --> 00:26:08,200
Speaker 1: and boom, they become a convicted felon because they've taken

445
00:26:08,240 --> 00:26:10,040
Speaker 1: a felony just to get a jail. And we saw

446
00:26:10,080 --> 00:26:12,000
Speaker 1: that a lot in Fulton County where they would make

447
00:26:12,000 --> 00:26:13,840
Speaker 1: a lot of like street level arrests where someone would

448
00:26:13,840 --> 00:26:16,320
Speaker 1: maybe have drug residue. They would arrest ten people for

449
00:26:16,400 --> 00:26:18,080
Speaker 1: the same crack pipe, you know, and all ten of

450
00:26:18,119 --> 00:26:20,080
Speaker 1: them couldn't make bond, and so they all put out

451
00:26:20,080 --> 00:26:22,960
Speaker 1: and boom, now they're all convicted felons out in Cobb County.

452
00:26:23,000 --> 00:26:25,400
Speaker 1: We see that here out in the suburbs, but it's

453
00:26:25,400 --> 00:26:28,040
Speaker 1: a little bit different here. They're scared of the jury.

454
00:26:28,160 --> 00:26:31,119
Speaker 1: They're scared that the jury is gonna not believe them

455
00:26:31,200 --> 00:26:33,239
Speaker 1: and they're going to convict, and they're scared of what

456
00:26:33,280 --> 00:26:35,600
Speaker 1: the judge is gonna do if they lose a trial.

457
00:26:35,640 --> 00:26:37,440
Speaker 1: So they're scared of that trial tax. And those are

458
00:26:37,480 --> 00:26:39,320
Speaker 1: really the two reasons to get out of jail, and

459
00:26:39,320 --> 00:26:48,600
Speaker 1: they're fearful of that trial tax. It's easy for a

460
00:26:48,680 --> 00:26:55,040
Speaker 1: client to admit at a burglarized somebody's house, but nobody

461
00:26:55,960 --> 00:27:00,679
Speaker 1: admits that they molist at a channel that was Ray Gary,

462
00:27:00,960 --> 00:27:06,200
Speaker 1: retired judge and defense attorney. So a lot of those

463
00:27:06,240 --> 00:27:10,720
Speaker 1: cases end up going to trial because you know, they'd

464
00:27:10,840 --> 00:27:14,119
Speaker 1: rather go to trial, lose the trowel gets sent to

465
00:27:14,200 --> 00:27:19,000
Speaker 1: prison for a long time, then to admit they did it.

466
00:27:20,200 --> 00:27:22,919
Speaker 1: And the same thing holds true with any crime, but

467
00:27:23,080 --> 00:27:28,680
Speaker 1: especially in you know, sex crimes, and Alfred Please saves

468
00:27:29,200 --> 00:27:32,639
Speaker 1: a lot of trials. So I think it's a valuable

469
00:27:32,680 --> 00:27:36,040
Speaker 1: tool because if you've got a case where the judge,

470
00:27:36,800 --> 00:27:38,640
Speaker 1: you know, I was wanting to take a plea burg

471
00:27:38,720 --> 00:27:42,359
Speaker 1: and along with the prosecutor and the defense lawyer and

472
00:27:42,400 --> 00:27:46,399
Speaker 1: the defendant, and the only problem is the guy I

473
00:27:46,480 --> 00:27:49,679
Speaker 1: won't admit it. Then on the Alfred play, you know,

474
00:27:49,720 --> 00:27:52,800
Speaker 1: then you say, well, we agree that when the prosecutor

475
00:27:52,800 --> 00:27:56,560
Speaker 1: puts the evidence, there is a significant chance a jury

476
00:27:56,640 --> 00:27:59,360
Speaker 1: might find me guilty even though I'm innocent. So I'll

477
00:27:59,400 --> 00:28:02,080
Speaker 1: go ahead and read of the punishment. I'm not admitting

478
00:28:02,119 --> 00:28:06,320
Speaker 1: I'm guilty, and so on paper you're guilty, but you

479
00:28:06,400 --> 00:28:09,600
Speaker 1: just don't have to say those embarrassing words in court.

480
00:28:09,720 --> 00:28:13,160
Speaker 1: So I like Alford Please. And they've saved a lot

481
00:28:13,200 --> 00:28:16,440
Speaker 1: of cases from going to trial, which saved a lot

482
00:28:16,440 --> 00:28:19,720
Speaker 1: of people from getting, you know, much longer sentences than

483
00:28:19,760 --> 00:28:25,720
Speaker 1: they would have gotten. Like so many things in the

484
00:28:25,800 --> 00:28:29,760
Speaker 1: legal system. Plea deals can be extremely complicated, like a

485
00:28:29,880 --> 00:28:34,119
Speaker 1: high stakes jigsaw puzzle with moving pieces that defendants simply

486
00:28:34,200 --> 00:28:36,960
Speaker 1: may not be prepared for. A big part of my

487
00:28:37,080 --> 00:28:39,920
Speaker 1: job as defense counsel is to provide clients with as

488
00:28:40,040 --> 00:28:43,280
Speaker 1: much information as possible so that they can make the best,

489
00:28:43,560 --> 00:28:47,400
Speaker 1: most informed decision possible when deciding whether or not to

490
00:28:47,480 --> 00:28:50,920
Speaker 1: accept a plea bargain. For example, we have to talk

491
00:28:50,960 --> 00:28:54,120
Speaker 1: about what happens if they enter a guilty plea or

492
00:28:54,120 --> 00:28:57,160
Speaker 1: a not guilty plea, what kind of risks are involved

493
00:28:57,160 --> 00:28:59,600
Speaker 1: in taking a case to trial. I have to let

494
00:28:59,640 --> 00:29:03,440
Speaker 1: them know everything that is happening and everything that foreseeably

495
00:29:03,600 --> 00:29:07,880
Speaker 1: might happen with their case. It gets tough sometimes to

496
00:29:07,920 --> 00:29:10,560
Speaker 1: give people the news that their case may not win,

497
00:29:11,080 --> 00:29:13,520
Speaker 1: or that it going to jail might be their best

498
00:29:13,720 --> 00:29:16,320
Speaker 1: or even their only option. But at the end of

499
00:29:16,320 --> 00:29:19,960
Speaker 1: the day, it's always the client's choice whether or not

500
00:29:20,120 --> 00:29:23,320
Speaker 1: they take any given plea deal, and my job is

501
00:29:23,360 --> 00:29:27,719
Speaker 1: to inform and support the role of a prosecutor is

502
00:29:27,720 --> 00:29:30,920
Speaker 1: not simply to get a conviction. A prosecutor's role is

503
00:29:30,960 --> 00:29:34,800
Speaker 1: to pursue justice, whatever that might look like. On the

504
00:29:34,800 --> 00:29:38,080
Speaker 1: other hand, my primary role as defense counsel is to

505
00:29:38,120 --> 00:29:42,240
Speaker 1: be a zealous advocate for my clients legal interests. I'm

506
00:29:42,280 --> 00:29:45,480
Speaker 1: looking for the best outcome for my client, whether it

507
00:29:45,520 --> 00:29:48,800
Speaker 1: be defending them at a trial or working to negotiate

508
00:29:49,040 --> 00:29:52,400
Speaker 1: the best possible sentence in a plea deal. The judge

509
00:29:52,480 --> 00:29:55,440
Speaker 1: then serves as the referee and is tasked with making

510
00:29:55,480 --> 00:29:59,360
Speaker 1: sure that everyone is following the rules. Judges and juries

511
00:29:59,400 --> 00:30:02,160
Speaker 1: alike and the case of a jury trial must remain

512
00:30:02,320 --> 00:30:06,280
Speaker 1: impartial when deciding guilt or handing down a sentence. The

513
00:30:06,400 --> 00:30:10,240
Speaker 1: justice system cannot function if any of those pieces are missing,

514
00:30:10,320 --> 00:30:13,440
Speaker 1: and it's everyone's job to keep checks and balances on

515
00:30:13,480 --> 00:30:17,240
Speaker 1: the other players. I completely understand where Judge Rakeoff is

516
00:30:17,280 --> 00:30:20,520
Speaker 1: coming from and thinking that Alfred Please, at least on paper,

517
00:30:20,760 --> 00:30:23,440
Speaker 1: may seem like a problem in the justice system that

518
00:30:23,560 --> 00:30:26,640
Speaker 1: only guilty people should be punished. But when someone is

519
00:30:26,680 --> 00:30:29,960
Speaker 1: facing the very real risk of getting an inflated sentence

520
00:30:30,000 --> 00:30:33,280
Speaker 1: by going to trial, sometimes the best decision they can

521
00:30:33,320 --> 00:30:36,280
Speaker 1: make in our imperfect system is to take a plea

522
00:30:36,400 --> 00:30:39,680
Speaker 1: deal and the punishment associated with it. In other words,

523
00:30:39,840 --> 00:30:42,600
Speaker 1: sometimes it's best to cut your losses and take the

524
00:30:42,640 --> 00:30:46,840
Speaker 1: better of two very bad situations. A person may not

525
00:30:47,000 --> 00:30:50,040
Speaker 1: have a family at home, or, like Kevin said, a

526
00:30:50,120 --> 00:30:53,480
Speaker 1: trial may not be something that they can afford financially.

527
00:30:54,280 --> 00:30:57,080
Speaker 1: In cases like that, there has to be a mechanism

528
00:30:57,120 --> 00:31:00,520
Speaker 1: in place for them to save themselves from the gamble

529
00:31:00,640 --> 00:31:03,240
Speaker 1: of a trial, even if they don't think they did

530
00:31:03,280 --> 00:31:06,959
Speaker 1: anything wrong. There's also the reality of the situation that

531
00:31:07,080 --> 00:31:10,360
Speaker 1: Jesse Evans brought up in the last episode. Our legal

532
00:31:10,400 --> 00:31:13,160
Speaker 1: system would simply collapse if we did away with plea

533
00:31:13,240 --> 00:31:17,080
Speaker 1: bargains the vast majority of cases and in some type

534
00:31:17,080 --> 00:31:20,520
Speaker 1: of negotiated deal, and there simply isn't enough room on

535
00:31:20,600 --> 00:31:23,520
Speaker 1: the court's dockets for it to be any other way.

536
00:31:23,920 --> 00:31:27,000
Speaker 1: Every person has the right to a trial, but if

537
00:31:27,040 --> 00:31:30,880
Speaker 1: every person exercised that right, the courts would be overloaded

538
00:31:30,920 --> 00:31:34,600
Speaker 1: in the extreme and the backlog would be unfathomable. Our

539
00:31:34,680 --> 00:31:38,240
Speaker 1: system is simply not built to handle every defendant having

540
00:31:38,320 --> 00:31:41,280
Speaker 1: their day in court, and that's an important reality to

541
00:31:41,360 --> 00:31:45,320
Speaker 1: keep in mind. Individuals can afford to always go to trial,

542
00:31:45,480 --> 00:31:49,080
Speaker 1: and neither can the system. In the end, the system

543
00:31:49,120 --> 00:31:53,720
Speaker 1: of plea bargaining saves time, saves money, and offers more certainty.

544
00:31:53,960 --> 00:31:57,520
Speaker 1: Put simply, plea bargain is necessary to keep the system

545
00:31:57,560 --> 00:32:01,520
Speaker 1: working for the next few episodes, we're going to cover

546
00:32:01,600 --> 00:32:04,360
Speaker 1: a case that hits very close to home with me.

547
00:32:04,880 --> 00:32:07,320
Speaker 1: It's a case that I worked on for many years.

548
00:32:07,720 --> 00:32:10,360
Speaker 1: The cases about a woman who hired me to defend

549
00:32:10,400 --> 00:32:13,400
Speaker 1: her after she was charged with murder in the wake

550
00:32:13,480 --> 00:32:16,360
Speaker 1: of the shocking death of her husband. There are a

551
00:32:16,440 --> 00:32:19,400
Speaker 1: lot of pieces to this case and there's much to unpack.

552
00:32:20,120 --> 00:32:23,120
Speaker 1: We're going to dive into everything that happened and all

553
00:32:23,160 --> 00:32:26,560
Speaker 1: of the impossible choices that had to be made next

554
00:32:26,640 --> 00:32:34,360
Speaker 1: time on Sworn. Sworn is a production of Tenderfoot TV

555
00:32:34,680 --> 00:32:38,640
Speaker 1: and I Heart Radio. Our lead producer is Christina Dana.

556
00:32:39,280 --> 00:32:43,840
Speaker 1: Executive producers are Payne Lindsay and Donald Albright for Tenderfoot TV,

557
00:32:44,280 --> 00:32:47,719
Speaker 1: Matt Frederick and Alex Williams for I Heart Radio, and

558
00:32:47,880 --> 00:32:53,320
Speaker 1: myself Philip Holloway. Additional production by Trevor Young, Mason Lindsay,

559
00:32:53,400 --> 00:32:58,280
Speaker 1: Mike Rooney, Jamie Albright, and Hallie beat. All original music

560
00:32:58,280 --> 00:33:01,640
Speaker 1: and sound designed by Makeup and Vanity Set. Our theme

561
00:33:01,680 --> 00:33:04,880
Speaker 1: song is Blood in the Water by Layup. Show art

562
00:33:04,880 --> 00:33:09,440
Speaker 1: and design is by Trevor Eisler, Editing by Christina Dana,

563
00:33:10,000 --> 00:33:14,200
Speaker 1: mixing and mastering by Mike Rooney and Cooper Skinner. Special

564
00:33:14,240 --> 00:33:17,720
Speaker 1: thanks to the team at I Heart Radio from u

565
00:33:17,760 --> 00:33:22,320
Speaker 1: T a or In rosenbaumd and Grace Royer, Ryan Nord

566
00:33:22,360 --> 00:33:27,120
Speaker 1: and Matthew Papa from the Nord Group, Back Media and Marketing,

567
00:33:27,160 --> 00:33:30,640
Speaker 1: and Station sixteen. I'd also like to extend a very

568
00:33:30,680 --> 00:33:34,080
Speaker 1: personal and special thanks to all of our contributors and

569
00:33:34,120 --> 00:33:37,600
Speaker 1: guests who have helped to make all of these episodes possible.

570
00:33:38,120 --> 00:33:42,120
Speaker 1: You can find Sworn on Facebook, Twitter, and Instagram at

571
00:33:42,280 --> 00:33:46,520
Speaker 1: Sworn podcast and follow me your host, Philip Holloway on

572
00:33:46,560 --> 00:33:51,080
Speaker 1: Twitter at phil Holloway e s Q. Our website is

573
00:33:51,200 --> 00:33:54,200
Speaker 1: sworn podcast dot com, and you can check out other

574
00:33:54,280 --> 00:34:00,400
Speaker 1: Tenderfoot TV podcasts at www dot tenderfoot dot tv. If

575
00:34:00,400 --> 00:34:03,240
Speaker 1: you have questions or comments, you can email us at

576
00:34:03,600 --> 00:34:08,240
Speaker 1: Sworn at tenderfoot dot tv or leave us a voicemail

577
00:34:08,760 --> 00:34:13,399
Speaker 1: at four zero four four one zero zero four four one.

578
00:34:14,080 --> 00:34:16,080
Speaker 1: As always, thanks for listening