Speaker 1: If you're going to place your left hand on the
Speaker 1: Bible and raise your right hand, and please repeat after
Speaker 1: me and I do solemnly swear the jury theven titled
Speaker 1: action find the defendant guilty of the time. It makes
Speaker 1: no sense, it doesn't fit. If it doesn't fit, you
Speaker 1: must aquit. We all took the same of the office.
Speaker 1: We're all bound by that common commitment to support and
Speaker 1: defend the Constitution, to bear true faith in allegiance to
Speaker 1: the Saint, that you faithfully discharge the duties of our office.
Speaker 1: Do you solemnly swear or affirm that the testimony you're
Speaker 1: about to give will be the truth, the whole truth,
Speaker 1: and nothing but the truth. From Tenderfoot TV and I
Speaker 1: Heart Radio, this is Sworn. I'm your host, Philip Holloway.
Speaker 1: I'm sure you've seen over the course of your career
Speaker 1: as I have, that over the decades, the sentences have
Speaker 1: gotten so much longer, that the risks have gotten a
Speaker 1: lot higher, and so now it becomes not like, well,
Speaker 1: if you go to trial, you're probably looking at nine years.
Speaker 1: They're offering you four years. Now you get into these
Speaker 1: crazy numbers where it's too risky to go to trial
Speaker 1: and It's very hard for defense attorneys to advise their
Speaker 1: clients on police bargaining. It's very difficult conversation to have.
Speaker 1: I remember saying in a one client once who wanted
Speaker 1: to go to trial, and the case was absolutely horrible.
Speaker 1: I mean, the evidence they had on him was indisputable
Speaker 1: that he was guilty. I remember saying to this guy,
Speaker 1: I said, well, picture this, how do you think the
Speaker 1: trial will go if I'm so lucky as I get
Speaker 1: on the jury? Your mom, both your grandparents, your cousins,
Speaker 1: your uncle's, your aunts, I get an entire jury of
Speaker 1: just your relatives. Do you think I could convince them
Speaker 1: that you're innocent? And it came to the conclusion that
Speaker 1: I couldn't convince his family he was innocent. I said, well,
Speaker 1: how do you think I'm gonna do its? Well? Strangers?
Speaker 1: And that was the sobering moment for him. It's tough
Speaker 1: because it's their decision. You don't want to pressure them
Speaker 1: into making it, but you want to give them a
Speaker 1: realistic assessment of their chances because that's what they're looking
Speaker 1: at you for The voice at the beginning of the
Speaker 1: episode with Justin Brooks, the current director of the California
Speaker 1: Innocence Project. Last week we started looking into the high
Speaker 1: costs and the extreme risk associated with taking a criminal
Speaker 1: case to trial, and how because of that risk, people
Speaker 1: sometimes will plead guilty to things that they have not done.
Speaker 1: Chief among this extreme risk is the risk of a
Speaker 1: higher prison sentence that often comes after someone refuses to
Speaker 1: accept a plea bargain. There are many factors that can
Speaker 1: affect the ultimate sentence imposed in any given case. These
Speaker 1: actors frequently include shotgun charging and high mandatory minimum sentences.
Speaker 1: So we asked Kevin Ring about this trial tax. Kevin
Speaker 1: is the head of Families Against Mandatory Minimums. While Kevin
Speaker 1: himself was on trial, he had to make this agonizing
Speaker 1: choice about whether or not to plead guilty to crimes
Speaker 1: that he didn't believe he committed or faced an extended
Speaker 1: prison sentence following trial. Kevin gives us his firsthand account
Speaker 1: of his experience with the hidden costs of trial, including
Speaker 1: the trial tax and the more straightforward costs that come
Speaker 1: with taking a case to trial. I think the trial
Speaker 1: tax is something that's not well understood. I think they've
Speaker 1: been brainwashed into thinking that if you're found guilty, then
Speaker 1: you should have taken whatever deal was offered. Put aside
Speaker 1: the fact that you might have thought you were in
Speaker 1: this send put aside the fact that you have a
Speaker 1: constitutional right to go to trial, even if you think
Speaker 1: you're dead guilty. You have a constitutional right to put
Speaker 1: the government to its proof by going to trial. But
Speaker 1: there has developed in our culture this sense that if
Speaker 1: you don't do what the prosecutor decides, and you don't
Speaker 1: plead guilty and you use the resources of a trial,
Speaker 1: that you're just going to open yourself to a longer penalty.
Speaker 1: I think when people are confronted with individual examples of it,
Speaker 1: they see it, but it's not something they think about
Speaker 1: because unless you're involved in the system, it's just not
Speaker 1: something you think of. Kevin had to deal with this
Speaker 1: firsthand when he went to trial. They brought me in
Speaker 1: and they said, you know, after two years of cooperating
Speaker 1: and other other evidence gathering, here's what we have against you.
Speaker 1: And if you plead and cooperate, will charge you with
Speaker 1: these things. And if you don't and you go to trial,
Speaker 1: will charge you with all of these different crimes. It
Speaker 1: gets the point where it's not even your conduct, it's
Speaker 1: what they decide to charge as your conduct that can
Speaker 1: determine the outcome of your sentence. Just like mandatory minimum
Speaker 1: sentense and guidelines, which are not statutory they're usually created
Speaker 1: by commission, are just as malleable by prosecutors. They can,
Speaker 1: you know, sometimes implicate certain enhancements for use of a
Speaker 1: computer or being the leader of a conspiracy. They can
Speaker 1: use and manipulate the sentence and guidelines just like they
Speaker 1: do mandatory minimums, so that even two similar defendants get
Speaker 1: much different sentences. Kevin points out that prosecutors will sometimes
Speaker 1: incentivize a defendant to take a plea deal rather than
Speaker 1: have him or her exercise their right to a trial.
Speaker 1: A normal plea bargain is the defendant will come in
Speaker 1: and if he or she is guilty and the government
Speaker 1: um wants to dispose of the case without having to
Speaker 1: go to trial, they'll say, look, this crime carries up
Speaker 1: to five year penalty. We will tell the judge that
Speaker 1: you cooperated and so you should get a shorter sentence.
Speaker 1: When Amanda Tory minimum attaches to some of these crimes,
Speaker 1: the prosecutor will say, will charge you with this lesser
Speaker 1: offense that doesn't carry a mandatory minimum. If you plead
Speaker 1: and then recommend a shorter sentence. But if you decide
Speaker 1: to go to trial and put us through the hassle
Speaker 1: of having to prove our case and win a conviction,
Speaker 1: we're going to bring all these charges against you, and
Speaker 1: some of those charges carry mandatory sentences, and when they
Speaker 1: do that, it doesn't matter what the judge thinks. At
Speaker 1: that point. If you're convicted, you're going to face a
Speaker 1: much higher penalty. It's just become too much of a
Speaker 1: game where once the prosecutor decides you're guilty, your options
Speaker 1: are very limited. I had friends of mine who were
Speaker 1: law and order types who said, look, I don't think
Speaker 1: you're guilty, but you have to plead guilty just to
Speaker 1: make this go away. There's something wrong when that's happening.
Speaker 1: Once again, Kevin saw this play out in his own
Speaker 1: case when he went to the sentencing. Phaise, the ringleader
Speaker 1: of this lobby and conspiracy, had been sentenced to four years.
Speaker 1: The government asked for seventeen and a half to twenty
Speaker 1: two years for me, and the judge said, how can
Speaker 1: this be possible. You know that he was an underling.
Speaker 1: How can he deserve this much time? You're currently punishing
Speaker 1: him for going to trial, and the prosecutors said, no,
Speaker 1: we're not punishing if we're going to trial. But he's
Speaker 1: just not getting the reward of pleading guilty and cooperating.
Speaker 1: And she said, isn't that just the different side of
Speaker 1: the same coin. I don't think there's any philosophical issue
Speaker 1: with giving somebody some credit for pleading guilty and cooperating.
Speaker 1: I think if somebody is guilty and they are willing
Speaker 1: to spare the government and taxpayers the cost of a trial,
Speaker 1: and they're willing to accept a shorter sentence, which they're
Speaker 1: going to get if they accept responsibility, I think the
Speaker 1: fact that they might get a shorter sentence is okay.
Speaker 1: And I think that incentive by it existing, will, you know,
Speaker 1: cause some people to plead guilty, and that's okay. The
Speaker 1: problem that happens is they not only get a shorter sentence,
Speaker 1: but those who don't don't just get the sentence that
Speaker 1: the other person would have got. They get a much
Speaker 1: longer sentence because once you decide then to go to trial,
Speaker 1: they usually add charges and penalties. The delta is not
Speaker 1: just if a was the utopian perfect punishment and the
Speaker 1: person who pled got two years less than a and
Speaker 1: now you get a for going to trial. No, you
Speaker 1: get a plus five. If I had pled guilty and cooperated,
Speaker 1: the government was all but offering me and no jail deal.
Speaker 1: But when I went to trial and lost, they were
Speaker 1: now asking with a straight face for seventeen and a
Speaker 1: half to twenty two years. And so luckily I had
Speaker 1: a judge who was a former criminal defense lawyer and
Speaker 1: a senior judge who wasn't just accepting the government's arguments
Speaker 1: at face value and really pushed back. Kevin says this
Speaker 1: sort of thing happens in courtrooms all across America every
Speaker 1: single day. In Florida, for example, there are cases where
Speaker 1: people have used a gun to fire what's called a
Speaker 1: warning shot. For example, during an altercation, somebody might fire
Speaker 1: the weapon up into the air as a warning, and
Speaker 1: they would argue this is a form of self defense
Speaker 1: to deter an attacker. You're not supposed to use a
Speaker 1: gun that way, but these people felt threatened, and the
Speaker 1: prosecutor said, well, that's aggravated assault. You've threatened people by
Speaker 1: shooting a gun. And the person will say, no, I
Speaker 1: was acting in self defense. I felt threatened. The prosecutor
Speaker 1: may say okay, well, listen, just plead guilty to this
Speaker 1: crime and I'll let you go with three years, and
Speaker 1: the person said, no, I think I'm I acted in
Speaker 1: self defense. I'll go to trial. Well, once they go
Speaker 1: to trial, that aggravated assault and the firing of a weapon,
Speaker 1: if they're found guilty, carries a fifteen year mandatory minimum.
Speaker 1: So we have cases in Florida where people are serving
Speaker 1: fifteen year sentences even after the prosecutor offered them a
Speaker 1: deal that would have had them serve three years. That
Speaker 1: twelve years has nothing to do with public safety. It
Speaker 1: just has to do with the fact that the defendant,
Speaker 1: for reasons good or bad, wanted to go to trial
Speaker 1: and try to approve his or her innocence, and so
Speaker 1: mandatory minimums can make the difference between pleading and not
Speaker 1: pleading so great it coerces people into pleading guilty, whether
Speaker 1: they're innocent or not. Kevin recognizes that judges are sometimes
Speaker 1: in a tough position. Judges understand that plea deals are
Speaker 1: a necessary and important part of the system, and that
Speaker 1: there just aren't enough resources for every case to go
Speaker 1: to trial. I think a bad habit has developed where
Speaker 1: they're not scrutinizing the plea deals as carefully as they should.
Speaker 1: They should make sure that plea deals aren't being used
Speaker 1: by prosecutors to go after the small fish and let
Speaker 1: the sharks get out with a shorter sentence. The thing
Speaker 1: I I try to emphasize is that I'm relatively privileged.
Speaker 1: I have, you know, a great deal of education. I
Speaker 1: was relatively um well off. But what people don't understand
Speaker 1: is when the government comes after you, you can't fight it.
Speaker 1: You can't afford to fight it. People will say things like, oh, yeah,
Speaker 1: going to trials expensive, it's not expensive, in a sort
Speaker 1: of throwaway line that like, you know, a new vacuum
Speaker 1: cleaner is expensive. My two trials and appeals cost two
Speaker 1: million dollars, and I didn't have two million dollars. I
Speaker 1: had to. I mean, my brother took out a mortgage
Speaker 1: on one of his houses. I spent all of my
Speaker 1: family savings to try to prove my innocence. I lost
Speaker 1: all of that money. Then my em lawyers were pointed
Speaker 1: as public defenders to finish the second trial and appeals.
Speaker 1: You just can't do it. That's why of all federal
Speaker 1: cases now and in plea deals, trials have vanished because
Speaker 1: no one can do it. And so that's the thing
Speaker 1: when somebody says, what do you think about indigent defense
Speaker 1: and the idea that you know, we should pay for
Speaker 1: somebody having a defense, I don't like that term because
Speaker 1: I don't think only the indigence can't afford a defense.
Speaker 1: No one can. M not only is going to trial
Speaker 1: a risky proposition and that you no longer have control
Speaker 1: over the result. Kevin is very right here. Going to
Speaker 1: trial is extremely expensive financially. We've talked throughout this season
Speaker 1: about all of the financial barriers that indigent defendants face
Speaker 1: in trying to win their trial. These things range from
Speaker 1: overworked public defenders to the costs associated with paying for
Speaker 1: forensic testing and expert testimony. But like Kevin said, those
Speaker 1: costs add up for everyone. Many people who are not
Speaker 1: indigent can become indigent just by being accused of a crime.
Speaker 1: If a defendant wants their day in court, they will
Speaker 1: have to consider a lot of things, including the trial
Speaker 1: tax as well as the financial costs, both of which
Speaker 1: are less costly if they decide to take a plea deal.
Speaker 1: To take a plea deal, defendants normally have to admit
Speaker 1: guilt under oath. This can present a huge problem for
Speaker 1: people who are actually innocent. There is, though a way
Speaker 1: around this dilemma. If an innocent person wants to take
Speaker 1: advantage of a more or less favorable plea deal rather
Speaker 1: than risk getting hit with the trial tax or perhaps
Speaker 1: a mandatory minimum sentencing following a jury trial, they can
Speaker 1: enter a special type of plea known as an Alfred plea.
Speaker 1: In the States system, I see Alfred please quite regularly.
Speaker 1: Many of my own clients have opted to enter Alfred
Speaker 1: please rather than risk going to trial. They felt it
Speaker 1: was just in their best interests to do so. But
Speaker 1: while working on this topic for the show, I had
Speaker 1: a surprising conversation with Judge Jed Raikoff, the federal judge
Speaker 1: from New York, who, as you'll hear, is not a
Speaker 1: huge fan of this type of plea. The federal law
Speaker 1: and the law in some states allows theoretically a person
Speaker 1: to come into court a defendant and say, even though
Speaker 1: I'm innocent, I don't want to take the risks, and
Speaker 1: I think the government is probably likely to convict me,
Speaker 1: but I'm prepared to accept that. So I may pay
Speaker 1: my innocence, but I will take the consequences of a
Speaker 1: guilty place. This has been approved by the Supreme Court
Speaker 1: in case called Alfred. But you know, almost never see it.
Speaker 1: You never see it in the federal system and very
Speaker 1: very rarely in the state system. And here's why our
Speaker 1: criminal justice system is not an administrative law system. It
Speaker 1: is ultimately based on, or attempts to be based on,
Speaker 1: an application of basic moral precipents. And no judge wants
Speaker 1: to accept a guilty plea from someone who says he's citizen,
Speaker 1: and no prosecutor, for that matter, feels comfortable accepting a
Speaker 1: play from someone who says he's innocent. So while ironically
Speaker 1: and Alfred plea may be closer to the truth of
Speaker 1: what's really going on in some circumstances, you have almost
Speaker 1: never seen. What if I told you that I practiced
Speaker 1: in an area where alfred please are in fact routine,
Speaker 1: I guess my question that is to you why our
Speaker 1: prosecutors going along with that? Well, I can tell you
Speaker 1: just based on my own experience, and I've done a
Speaker 1: handful of Alfred Please myself just this year in and
Speaker 1: I think the short answer is that they are aware
Speaker 1: of how powerful mandatory minimum sentencing is they are aware
Speaker 1: that they can use this leverage to avoid having to
Speaker 1: go through the halsehol and expensive a trial, and judges
Speaker 1: are happy to take in Alfred plea because it takes
Speaker 1: one less case off of a crowded docket and move
Speaker 1: the business. So to speak, Well, you've just identify, which
Speaker 1: makes sense from a efficiency standpoint, is to my mind,
Speaker 1: totally repugnant from any moral standpoint. The prosecutor is saying, Judge,
Speaker 1: he claims he said it, and we don't believe him
Speaker 1: for one minute. But rather than have to go to
Speaker 1: trial and prove it, we don't have the resources, we'll
Speaker 1: just take the plea. The dependent and the fence lawyer says, oh, Judge,
Speaker 1: my guy is really innocent. He's never did this at all.
Speaker 1: But my gosh, we're not prepared to take the risk
Speaker 1: going the trial. That's that's too dangerous. So rather than
Speaker 1: trying to prove our innocence, we will take the plague.
Speaker 1: And the judge is saying, it all sounds fine to
Speaker 1: me because I've got twenty cases. I've got it here
Speaker 1: today and just at least get it down to nineteen.
Speaker 1: What you're saying is a total disregard for finding out
Speaker 1: the ultimate truth, a total disregard or putting the government
Speaker 1: to its proof, a total disregard for a judge's obligation
Speaker 1: to ascertain his best he or she can whether a
Speaker 1: person is really guilty or not. It becomes instead of justice,
Speaker 1: it just becomes convenient. Having said that, the reason this
Speaker 1: is going on is because of most cases the very
Speaker 1: high penalties that you faced if you go to trial.
Speaker 1: So basically the way the plate coloque we works very
Speaker 1: similar to the one you described in the federal court.
Speaker 1: Where you sit, you get to the part of the
Speaker 1: questioning where the court says to the defendant, are you
Speaker 1: in fact guilty? It's a simple yes or no question
Speaker 1: if the person is under oath, right, And I'm a
Speaker 1: lawyer and I can't have some body under oath that's
Speaker 1: knowingly committing perjury. So if I've got a client who
Speaker 1: is wanting to take advantage of a plea deal basically
Speaker 1: to avoid say a mandatory minimum, but at the same
Speaker 1: time they maintain their innocence, we can't give it yes
Speaker 1: or no answer. So we've got to telegraph to the
Speaker 1: court ahead of time that this is going to be
Speaker 1: plea made under under offer and Basically, all that the
Speaker 1: judge does is say, you know, your lawyer has told
Speaker 1: me that you want to enter a plea and that
Speaker 1: you still maintain your innocence. In order for me to
Speaker 1: accept your plea, Mr or misdefendant, you've got to satisfy me,
Speaker 1: as the judge, that you think that the prosecution may
Speaker 1: very well be able to convict you, and that because
Speaker 1: of that it's in your best interest to take advantage
Speaker 1: of this plea. Is that what you want to do?
Speaker 1: And so then they bull it down to just a
Speaker 1: different yes or no question, But it takes about five
Speaker 1: minutes or less. Well that that is certainly streamline. Oh,
Speaker 1: I was in court last week and I saw a
Speaker 1: judge and we were one of the cases literally stand
Speaker 1: I think it was twelve defendants in the well of
Speaker 1: the courtroom and uh have them standing side by side
Speaker 1: with their counsel just doing mass please, Uh, just going
Speaker 1: through the questionnaire that you Mr. So and so, you
Speaker 1: miss so and so, and then just yes or no
Speaker 1: all the way down. And they were doing you know,
Speaker 1: ten or twelve at the time. The blame in part
Speaker 1: is on all of us because this would not be
Speaker 1: occurring or not occurring in the extreme way that we're describing.
Speaker 1: If there were more judges, more resources for criminal defense lawyers,
Speaker 1: especially for indigence or in depth enquiries, lower penalties. Why
Speaker 1: do we have all this? We have all this because
Speaker 1: the legislature toughened up in their view in the nineties, seventies, eighties,
Speaker 1: and nineties to combat what was an undeadly rising crime rates.
Speaker 1: Crime rates have come way down since then, but the
Speaker 1: laws remain on the books. Two plus million people are
Speaker 1: the jail or prison, and we have these very superficial proceedings.
Speaker 1: If you took the person in the street and showed
Speaker 1: them what you just described the mass play, I think
Speaker 1: most people would say, oh my gosh, I ever thought
Speaker 1: of work like that. I mean, that's like what they
Speaker 1: used to do in Soviet Russia. That's not that's not justice.
Speaker 1: But they have no idea. Ashley Merchant and I see
Speaker 1: very similar types of cases in our law practices. So
Speaker 1: I wanted to get her thoughts on Alfred please, and
Speaker 1: on Judge Rakoff's assessment of what he sees as the
Speaker 1: problem with Alfred. Please. She brought up this new point,
Speaker 1: and that is that Alfred is another area where prosecutors
Speaker 1: can control the charges by refusing to even offer a
Speaker 1: plea bargain unless the defendant admits guilt. I have another
Speaker 1: case that I can give a parallel to where I
Speaker 1: have a child who was fifteen years old at the time.
Speaker 1: He was alleged to have abused his younger cousin and
Speaker 1: he said he didn't do it. And he was fifteen,
Speaker 1: I mean, he was a kid, but he was charged
Speaker 1: as an adult. It's a twenty year mandatory prison sentence
Speaker 1: on that. So he was offered ten years pre trial
Speaker 1: and but a lifetime sex offender registrate and pre trial.
Speaker 1: He just said, I can't agree that I did something
Speaker 1: I didn't do. And in that case, the prosecut or
Speaker 1: was not willing to accept this Alfred plea. Part of
Speaker 1: the plea deal in order to reduce the charges from
Speaker 1: the charges that carried that twenty year mandatory minimum, said
Speaker 1: if you don't admit guilt, I'm not going to get
Speaker 1: rid of that charge and let you get the ten
Speaker 1: year sentence. He just said, I can't do it. I
Speaker 1: can't admit that I did something I didn't do. So
Speaker 1: he went to trial. He was convicted. Only was the
Speaker 1: testimony of his cousin he testified that he didn't do it,
Speaker 1: and we're now on appeal. I didn't represent him at
Speaker 1: the trial, but I now represent him on appeal, and
Speaker 1: we've gotten an offer to fifteen years, and he's told
Speaker 1: me he wants to take it, but he cannot admit guild.
Speaker 1: And I told the prosecutor, you know, I can't put
Speaker 1: him up and have him under oath admit guilt because
Speaker 1: I don't think he did it. And I can't put
Speaker 1: him up there and have him commit perjury. And of
Speaker 1: course they're saying, well, he's not committing perjury's lying to you.
Speaker 1: But how do you know. He's asked me, do I
Speaker 1: need to lie to get this deal? And you can't lie.
Speaker 1: I can't have you lie on the stand. I can't
Speaker 1: have you under oath lie about something. But at the
Speaker 1: same time, I don't want to be the reason that
Speaker 1: he can't get a lesser sentence and can't get out prison.
Speaker 1: You know, he's a kid. I think a lot of
Speaker 1: times criminal defendants get up there and they lie and
Speaker 1: say they did something they didn't do just to get
Speaker 1: the deal, and I cannot say I blame them. Said
Speaker 1: that in the federal system, of course, where he works.
Speaker 1: I think he used the phrase theoretically, this is possible,
Speaker 1: and he very not so suddenly indicated that's really the
Speaker 1: exception rather than the rule, at least in the framework
Speaker 1: of the cases that he sees in the federal system.
Speaker 1: And I said, Judge, you know what if I told
Speaker 1: you that it's really really common, and I've done several
Speaker 1: already this year in the state system here alone. He
Speaker 1: seemed to be a little bit surprised by that. But
Speaker 1: it's really something that's used a lot, and it's used
Speaker 1: as a way, I think, to permit people to take
Speaker 1: advantage of plea offers because they think they're gonna get
Speaker 1: hammered by a judge or by mandatory minimum sentence if
Speaker 1: they don't take some kind of a plea deal, and
Speaker 1: so they have this mechanism called an alpha plea and
Speaker 1: they use it to get past that question when the
Speaker 1: judge says, are you in fact guilty? And all you
Speaker 1: gotta do is say, Jude, I'm pleading under Alfred versus
Speaker 1: North Carolina, and we think that it's in our best
Speaker 1: interest to take this plea. I think it's important to
Speaker 1: parallel the two systems to sort of understand why he
Speaker 1: would say that the federal government operates completely differently than
Speaker 1: the state government in prosecutions. When the federal government comes knocking,
Speaker 1: they have a solid case, they've got you. I do
Speaker 1: federal work, but when I get it, I'm like, because
Speaker 1: I just there's not a whole lot I can do
Speaker 1: as a criminal defense attorney for the actual charges. What
Speaker 1: we can do as a criminal defense attorneys, we can
Speaker 1: work on sentencing. Once the federal government indicts or charges you,
Speaker 1: they usually have significant evidence against you. And so the
Speaker 1: state court has to have these alfred police because they
Speaker 1: can't move cases otherwise. Where the federal system, the judges
Speaker 1: they don't want to take a plea from someone that
Speaker 1: didn't do it. They don't want to take that. That
Speaker 1: to them is just it's awful. It's a miscarriage of justice.
Speaker 1: Where in the state system they're just like, line them up,
Speaker 1: we got to move them. The second thing is they
Speaker 1: also have a couple rights built in that we don't
Speaker 1: have in state court. They have a federal Speedy Trial Act,
Speaker 1: and so you're not going to sit for three years
Speaker 1: in jail on a federal case like you do in
Speaker 1: state court. And that delay is one of the reasons
Speaker 1: that people want to take Alfred please because they don't
Speaker 1: want to sit in jail for three years. The other
Speaker 1: thing is they tend to give folks bond. In federal cases,
Speaker 1: they've got a Bond Act also a bail Bond Act,
Speaker 1: where the judges have a very thoughtful bail hearing and
Speaker 1: they don't InCAR strate pre trial like they do in
Speaker 1: state court. In state court, if you're charged with a felony,
Speaker 1: a serious felony, it's impossible to get bond in most cases.
Speaker 1: When I was in Fulton County, for example, at the
Speaker 1: public Defender, my clients couldn't afford bond. So maybe they'd
Speaker 1: have a five bond, but they didn't have five hundred dollars.
Speaker 1: They would be in a position where, unlike the federal
Speaker 1: court where they've got a speedy trial and a right
Speaker 1: to bail, there in the state court they've got no
Speaker 1: bail and they've got no statutory automatic speedy trial right.
Speaker 1: And they feel desperate. You know, they're arrested, they're in jail.
Speaker 1: It's an awful, scary, violent place, and they just want
Speaker 1: to go home. And they're offered probation and a fine,
Speaker 1: and boom, they become a convicted felon because they've taken
Speaker 1: a felony just to get a jail. And we saw
Speaker 1: that a lot in Fulton County where they would make
Speaker 1: a lot of like street level arrests where someone would
Speaker 1: maybe have drug residue. They would arrest ten people for
Speaker 1: the same crack pipe, you know, and all ten of
Speaker 1: them couldn't make bond, and so they all put out
Speaker 1: and boom, now they're all convicted felons out in Cobb County.
Speaker 1: We see that here out in the suburbs, but it's
Speaker 1: a little bit different here. They're scared of the jury.
Speaker 1: They're scared that the jury is gonna not believe them
Speaker 1: and they're going to convict, and they're scared of what
Speaker 1: the judge is gonna do if they lose a trial.
Speaker 1: So they're scared of that trial tax. And those are
Speaker 1: really the two reasons to get out of jail, and
Speaker 1: they're fearful of that trial tax. It's easy for a
Speaker 1: client to admit at a burglarized somebody's house, but nobody
Speaker 1: admits that they molist at a channel that was Ray Gary,
Speaker 1: retired judge and defense attorney. So a lot of those
Speaker 1: cases end up going to trial because you know, they'd
Speaker 1: rather go to trial, lose the trowel gets sent to
Speaker 1: prison for a long time, then to admit they did it.
Speaker 1: And the same thing holds true with any crime, but
Speaker 1: especially in you know, sex crimes, and Alfred Please saves
Speaker 1: a lot of trials. So I think it's a valuable
Speaker 1: tool because if you've got a case where the judge,
Speaker 1: you know, I was wanting to take a plea burg
Speaker 1: and along with the prosecutor and the defense lawyer and
Speaker 1: the defendant, and the only problem is the guy I
Speaker 1: won't admit it. Then on the Alfred play, you know,
Speaker 1: then you say, well, we agree that when the prosecutor
Speaker 1: puts the evidence, there is a significant chance a jury
Speaker 1: might find me guilty even though I'm innocent. So I'll
Speaker 1: go ahead and read of the punishment. I'm not admitting
Speaker 1: I'm guilty, and so on paper you're guilty, but you
Speaker 1: just don't have to say those embarrassing words in court.
Speaker 1: So I like Alford Please. And they've saved a lot
Speaker 1: of cases from going to trial, which saved a lot
Speaker 1: of people from getting, you know, much longer sentences than
Speaker 1: they would have gotten. Like so many things in the
Speaker 1: legal system. Plea deals can be extremely complicated, like a
Speaker 1: high stakes jigsaw puzzle with moving pieces that defendants simply
Speaker 1: may not be prepared for. A big part of my
Speaker 1: job as defense counsel is to provide clients with as
Speaker 1: much information as possible so that they can make the best,
Speaker 1: most informed decision possible when deciding whether or not to
Speaker 1: accept a plea bargain. For example, we have to talk
Speaker 1: about what happens if they enter a guilty plea or
Speaker 1: a not guilty plea, what kind of risks are involved
Speaker 1: in taking a case to trial. I have to let
Speaker 1: them know everything that is happening and everything that foreseeably
Speaker 1: might happen with their case. It gets tough sometimes to
Speaker 1: give people the news that their case may not win,
Speaker 1: or that it going to jail might be their best
Speaker 1: or even their only option. But at the end of
Speaker 1: the day, it's always the client's choice whether or not
Speaker 1: they take any given plea deal, and my job is
Speaker 1: to inform and support the role of a prosecutor is
Speaker 1: not simply to get a conviction. A prosecutor's role is
Speaker 1: to pursue justice, whatever that might look like. On the
Speaker 1: other hand, my primary role as defense counsel is to
Speaker 1: be a zealous advocate for my clients legal interests. I'm
Speaker 1: looking for the best outcome for my client, whether it
Speaker 1: be defending them at a trial or working to negotiate
Speaker 1: the best possible sentence in a plea deal. The judge
Speaker 1: then serves as the referee and is tasked with making
Speaker 1: sure that everyone is following the rules. Judges and juries
Speaker 1: alike and the case of a jury trial must remain
Speaker 1: impartial when deciding guilt or handing down a sentence. The
Speaker 1: justice system cannot function if any of those pieces are missing,
Speaker 1: and it's everyone's job to keep checks and balances on
Speaker 1: the other players. I completely understand where Judge Rakeoff is
Speaker 1: coming from and thinking that Alfred Please, at least on paper,
Speaker 1: may seem like a problem in the justice system that
Speaker 1: only guilty people should be punished. But when someone is
Speaker 1: facing the very real risk of getting an inflated sentence
Speaker 1: by going to trial, sometimes the best decision they can
Speaker 1: make in our imperfect system is to take a plea
Speaker 1: deal and the punishment associated with it. In other words,
Speaker 1: sometimes it's best to cut your losses and take the
Speaker 1: better of two very bad situations. A person may not
Speaker 1: have a family at home, or, like Kevin said, a
Speaker 1: trial may not be something that they can afford financially.
Speaker 1: In cases like that, there has to be a mechanism
Speaker 1: in place for them to save themselves from the gamble
Speaker 1: of a trial, even if they don't think they did
Speaker 1: anything wrong. There's also the reality of the situation that
Speaker 1: Jesse Evans brought up in the last episode. Our legal
Speaker 1: system would simply collapse if we did away with plea
Speaker 1: bargains the vast majority of cases and in some type
Speaker 1: of negotiated deal, and there simply isn't enough room on
Speaker 1: the court's dockets for it to be any other way.
Speaker 1: Every person has the right to a trial, but if
Speaker 1: every person exercised that right, the courts would be overloaded
Speaker 1: in the extreme and the backlog would be unfathomable. Our
Speaker 1: system is simply not built to handle every defendant having
Speaker 1: their day in court, and that's an important reality to
Speaker 1: keep in mind. Individuals can afford to always go to trial,
Speaker 1: and neither can the system. In the end, the system
Speaker 1: of plea bargaining saves time, saves money, and offers more certainty.
Speaker 1: Put simply, plea bargain is necessary to keep the system
Speaker 1: working for the next few episodes, we're going to cover
Speaker 1: a case that hits very close to home with me.
Speaker 1: It's a case that I worked on for many years.
Speaker 1: The cases about a woman who hired me to defend
Speaker 1: her after she was charged with murder in the wake
Speaker 1: of the shocking death of her husband. There are a
Speaker 1: lot of pieces to this case and there's much to unpack.
Speaker 1: We're going to dive into everything that happened and all
Speaker 1: of the impossible choices that had to be made next
Speaker 1: time on Sworn. Sworn is a production of Tenderfoot TV
Speaker 1: and I Heart Radio. Our lead producer is Christina Dana.
Speaker 1: Executive 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 Hallie beat. All original music
Speaker 1: and sound designed by Makeup 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 rosenbaumd and Grace Royer, Ryan Nord
Speaker 1: and Matthew Papa from the Nord Group, Back Media and Marketing,
Speaker 1: and Station sixteen. I'd also like to extend a very
Speaker 1: personal and special thanks to all of our contributors and
Speaker 1: guests who have helped to make all of these episodes possible.
Speaker 1: You can find Sworn on Facebook, Twitter, and Instagram at
Speaker 1: Sworn podcast and follow me your host, Philip Holloway on
Speaker 1: Twitter at phil Holloway e s Q. Our website is
Speaker 1: sworn podcast dot com, and you can check out other
Speaker 1: Tenderfoot TV podcasts at www dot tenderfoot dot tv. If
Speaker 1: you have questions or comments, you can email us at
Speaker 1: Sworn at tenderfoot dot tv or leave us a voicemail
Speaker 1: at four zero four four one zero zero four four one.
Speaker 1: As always, thanks for listening