WEBVTT - Alford Plea 0:00:03.240 --> 0:00:05.080 If you're going to place your left hand on the 0:00:05.120 --> 0:00:08.799 Bible and raise your right hand, and please repeat after 0:00:08.880 --> 0:00:12.600 me and I do solemnly swear the jury theven titled 0:00:12.600 --> 0:00:15.600 action find the defendant guilty of the time. It makes 0:00:15.640 --> 0:00:19.360 no sense, it doesn't fit. If it doesn't fit, you 0:00:19.600 --> 0:00:22.160 must aquit. We all took the same of the office. 0:00:22.360 --> 0:00:25.320 We're all bound by that common commitment to support and 0:00:25.360 --> 0:00:28.680 defend the Constitution, to bear true faith in allegiance to 0:00:28.720 --> 0:00:31.720 the Saint, that you faithfully discharge the duties of our office. 0:00:31.960 --> 0:00:35.239 Do you solemnly swear or affirm that the testimony you're 0:00:35.240 --> 0:00:37.480 about to give will be the truth, the whole truth, 0:00:37.560 --> 0:00:40.879 and nothing but the truth. From Tenderfoot TV and I 0:00:41.000 --> 0:00:47.000 Heart Radio, this is Sworn. I'm your host, Philip Holloway. 0:00:57.000 --> 0:00:59.080 I'm sure you've seen over the course of your career 0:00:59.080 --> 0:01:01.800 as I have, that over the decades, the sentences have 0:01:01.840 --> 0:01:04.040 gotten so much longer, that the risks have gotten a 0:01:04.120 --> 0:01:07.560 lot higher, and so now it becomes not like, well, 0:01:07.600 --> 0:01:10.560 if you go to trial, you're probably looking at nine years. 0:01:10.959 --> 0:01:14.840 They're offering you four years. Now you get into these 0:01:14.880 --> 0:01:18.240 crazy numbers where it's too risky to go to trial 0:01:18.920 --> 0:01:21.399 and It's very hard for defense attorneys to advise their 0:01:21.440 --> 0:01:24.760 clients on police bargaining. It's very difficult conversation to have. 0:01:24.840 --> 0:01:27.280 I remember saying in a one client once who wanted 0:01:27.319 --> 0:01:29.560 to go to trial, and the case was absolutely horrible. 0:01:29.640 --> 0:01:32.560 I mean, the evidence they had on him was indisputable 0:01:32.560 --> 0:01:35.360 that he was guilty. I remember saying to this guy, 0:01:35.520 --> 0:01:37.920 I said, well, picture this, how do you think the 0:01:38.000 --> 0:01:41.280 trial will go if I'm so lucky as I get 0:01:41.319 --> 0:01:46.640 on the jury? Your mom, both your grandparents, your cousins, 0:01:46.959 --> 0:01:49.720 your uncle's, your aunts, I get an entire jury of 0:01:49.840 --> 0:01:52.920 just your relatives. Do you think I could convince them 0:01:52.960 --> 0:01:56.760 that you're innocent? And it came to the conclusion that 0:01:56.760 --> 0:01:59.000 I couldn't convince his family he was innocent. I said, well, 0:01:59.040 --> 0:02:00.880 how do you think I'm gonna do its? Well? Strangers? 0:02:01.600 --> 0:02:05.080 And that was the sobering moment for him. It's tough 0:02:05.120 --> 0:02:07.800 because it's their decision. You don't want to pressure them 0:02:07.800 --> 0:02:09.600 into making it, but you want to give them a 0:02:09.639 --> 0:02:12.839 realistic assessment of their chances because that's what they're looking 0:02:12.880 --> 0:02:25.200 at you for The voice at the beginning of the 0:02:25.240 --> 0:02:29.040 episode with Justin Brooks, the current director of the California 0:02:29.120 --> 0:02:32.640 Innocence Project. Last week we started looking into the high 0:02:32.720 --> 0:02:36.400 costs and the extreme risk associated with taking a criminal 0:02:36.480 --> 0:02:40.120 case to trial, and how because of that risk, people 0:02:40.280 --> 0:02:44.000 sometimes will plead guilty to things that they have not done. 0:02:44.560 --> 0:02:47.520 Chief among this extreme risk is the risk of a 0:02:47.680 --> 0:02:52.080 higher prison sentence that often comes after someone refuses to 0:02:52.160 --> 0:02:55.760 accept a plea bargain. There are many factors that can 0:02:55.800 --> 0:02:59.839 affect the ultimate sentence imposed in any given case. These 0:03:00.000 --> 0:03:05.000 actors frequently include shotgun charging and high mandatory minimum sentences. 0:03:05.600 --> 0:03:10.120 So we asked Kevin Ring about this trial tax. Kevin 0:03:10.200 --> 0:03:14.280 is the head of Families Against Mandatory Minimums. While Kevin 0:03:14.360 --> 0:03:17.680 himself was on trial, he had to make this agonizing 0:03:17.760 --> 0:03:21.000 choice about whether or not to plead guilty to crimes 0:03:21.000 --> 0:03:23.760 that he didn't believe he committed or faced an extended 0:03:23.800 --> 0:03:28.600 prison sentence following trial. Kevin gives us his firsthand account 0:03:28.760 --> 0:03:32.560 of his experience with the hidden costs of trial, including 0:03:32.560 --> 0:03:36.080 the trial tax and the more straightforward costs that come 0:03:36.120 --> 0:03:39.800 with taking a case to trial. I think the trial 0:03:39.880 --> 0:03:44.560 tax is something that's not well understood. I think they've 0:03:44.560 --> 0:03:48.120 been brainwashed into thinking that if you're found guilty, then 0:03:48.160 --> 0:03:51.120 you should have taken whatever deal was offered. Put aside 0:03:51.160 --> 0:03:52.400 the fact that you might have thought you were in 0:03:52.440 --> 0:03:54.480 this send put aside the fact that you have a 0:03:54.480 --> 0:03:57.160 constitutional right to go to trial, even if you think 0:03:57.160 --> 0:04:01.119 you're dead guilty. You have a constitutional right to put 0:04:01.120 --> 0:04:03.880 the government to its proof by going to trial. But 0:04:04.000 --> 0:04:08.000 there has developed in our culture this sense that if 0:04:08.040 --> 0:04:10.440 you don't do what the prosecutor decides, and you don't 0:04:10.480 --> 0:04:14.400 plead guilty and you use the resources of a trial, 0:04:15.000 --> 0:04:17.960 that you're just going to open yourself to a longer penalty. 0:04:18.200 --> 0:04:20.960 I think when people are confronted with individual examples of it, 0:04:21.400 --> 0:04:23.960 they see it, but it's not something they think about 0:04:24.040 --> 0:04:26.520 because unless you're involved in the system, it's just not 0:04:26.600 --> 0:04:29.320 something you think of. Kevin had to deal with this 0:04:29.520 --> 0:04:33.120 firsthand when he went to trial. They brought me in 0:04:33.200 --> 0:04:35.440 and they said, you know, after two years of cooperating 0:04:35.440 --> 0:04:38.640 and other other evidence gathering, here's what we have against you. 0:04:39.440 --> 0:04:43.080 And if you plead and cooperate, will charge you with 0:04:43.120 --> 0:04:46.920 these things. And if you don't and you go to trial, 0:04:47.320 --> 0:04:50.159 will charge you with all of these different crimes. It 0:04:50.240 --> 0:04:52.920 gets the point where it's not even your conduct, it's 0:04:52.960 --> 0:04:56.279 what they decide to charge as your conduct that can 0:04:56.360 --> 0:05:00.400 determine the outcome of your sentence. Just like mandatory minimum 0:05:00.560 --> 0:05:03.960 sentense and guidelines, which are not statutory they're usually created 0:05:03.960 --> 0:05:08.640 by commission, are just as malleable by prosecutors. They can, 0:05:08.839 --> 0:05:12.680 you know, sometimes implicate certain enhancements for use of a 0:05:12.720 --> 0:05:17.080 computer or being the leader of a conspiracy. They can 0:05:17.279 --> 0:05:19.960 use and manipulate the sentence and guidelines just like they 0:05:19.960 --> 0:05:24.440 do mandatory minimums, so that even two similar defendants get 0:05:24.560 --> 0:05:29.320 much different sentences. Kevin points out that prosecutors will sometimes 0:05:29.480 --> 0:05:33.360 incentivize a defendant to take a plea deal rather than 0:05:33.480 --> 0:05:36.960 have him or her exercise their right to a trial. 0:05:37.720 --> 0:05:41.360 A normal plea bargain is the defendant will come in 0:05:42.080 --> 0:05:45.320 and if he or she is guilty and the government 0:05:45.920 --> 0:05:47.800 um wants to dispose of the case without having to 0:05:47.839 --> 0:05:52.240 go to trial, they'll say, look, this crime carries up 0:05:52.240 --> 0:05:55.400 to five year penalty. We will tell the judge that 0:05:55.480 --> 0:05:58.760 you cooperated and so you should get a shorter sentence. 0:05:59.360 --> 0:06:02.400 When Amanda Tory minimum attaches to some of these crimes, 0:06:02.720 --> 0:06:06.360 the prosecutor will say, will charge you with this lesser 0:06:06.400 --> 0:06:09.719 offense that doesn't carry a mandatory minimum. If you plead 0:06:10.279 --> 0:06:13.080 and then recommend a shorter sentence. But if you decide 0:06:13.080 --> 0:06:15.800 to go to trial and put us through the hassle 0:06:15.880 --> 0:06:18.240 of having to prove our case and win a conviction, 0:06:18.839 --> 0:06:21.000 we're going to bring all these charges against you, and 0:06:21.080 --> 0:06:24.880 some of those charges carry mandatory sentences, and when they 0:06:24.920 --> 0:06:27.040 do that, it doesn't matter what the judge thinks. At 0:06:27.040 --> 0:06:29.440 that point. If you're convicted, you're going to face a 0:06:29.520 --> 0:06:32.919 much higher penalty. It's just become too much of a 0:06:33.000 --> 0:06:37.719 game where once the prosecutor decides you're guilty, your options 0:06:37.720 --> 0:06:40.560 are very limited. I had friends of mine who were 0:06:40.600 --> 0:06:42.600 law and order types who said, look, I don't think 0:06:42.600 --> 0:06:45.039 you're guilty, but you have to plead guilty just to 0:06:45.080 --> 0:06:48.520 make this go away. There's something wrong when that's happening. 0:06:49.160 --> 0:06:51.520 Once again, Kevin saw this play out in his own 0:06:51.560 --> 0:06:56.320 case when he went to the sentencing. Phaise, the ringleader 0:06:56.360 --> 0:06:59.080 of this lobby and conspiracy, had been sentenced to four years. 0:06:59.760 --> 0:07:02.240 The government asked for seventeen and a half to twenty 0:07:02.240 --> 0:07:05.719 two years for me, and the judge said, how can 0:07:05.720 --> 0:07:08.880 this be possible. You know that he was an underling. 0:07:09.040 --> 0:07:11.760 How can he deserve this much time? You're currently punishing 0:07:11.840 --> 0:07:14.600 him for going to trial, and the prosecutors said, no, 0:07:14.680 --> 0:07:17.000 we're not punishing if we're going to trial. But he's 0:07:17.040 --> 0:07:20.240 just not getting the reward of pleading guilty and cooperating. 0:07:20.880 --> 0:07:23.560 And she said, isn't that just the different side of 0:07:23.560 --> 0:07:28.440 the same coin. I don't think there's any philosophical issue 0:07:29.360 --> 0:07:34.240 with giving somebody some credit for pleading guilty and cooperating. 0:07:35.000 --> 0:07:38.640 I think if somebody is guilty and they are willing 0:07:38.680 --> 0:07:41.600 to spare the government and taxpayers the cost of a trial, 0:07:42.280 --> 0:07:44.800 and they're willing to accept a shorter sentence, which they're 0:07:44.800 --> 0:07:48.360 going to get if they accept responsibility, I think the 0:07:48.400 --> 0:07:51.160 fact that they might get a shorter sentence is okay. 0:07:51.240 --> 0:07:55.520 And I think that incentive by it existing, will, you know, 0:07:55.600 --> 0:07:59.880 cause some people to plead guilty, and that's okay. The 0:08:00.160 --> 0:08:03.720 problem that happens is they not only get a shorter sentence, 0:08:03.760 --> 0:08:07.160 but those who don't don't just get the sentence that 0:08:07.280 --> 0:08:09.520 the other person would have got. They get a much 0:08:09.560 --> 0:08:12.840 longer sentence because once you decide then to go to trial, 0:08:13.240 --> 0:08:18.480 they usually add charges and penalties. The delta is not 0:08:18.600 --> 0:08:22.880 just if a was the utopian perfect punishment and the 0:08:22.920 --> 0:08:26.360 person who pled got two years less than a and 0:08:26.440 --> 0:08:28.960 now you get a for going to trial. No, you 0:08:29.080 --> 0:08:34.439 get a plus five. If I had pled guilty and cooperated, 0:08:34.600 --> 0:08:37.200 the government was all but offering me and no jail deal. 0:08:37.840 --> 0:08:40.240 But when I went to trial and lost, they were 0:08:40.240 --> 0:08:42.679 now asking with a straight face for seventeen and a 0:08:42.720 --> 0:08:45.600 half to twenty two years. And so luckily I had 0:08:45.600 --> 0:08:49.240 a judge who was a former criminal defense lawyer and 0:08:49.559 --> 0:08:53.199 a senior judge who wasn't just accepting the government's arguments 0:08:53.280 --> 0:08:57.360 at face value and really pushed back. Kevin says this 0:08:57.400 --> 0:09:00.640 sort of thing happens in courtrooms all across America every 0:09:00.800 --> 0:09:04.959 single day. In Florida, for example, there are cases where 0:09:05.200 --> 0:09:07.960 people have used a gun to fire what's called a 0:09:08.000 --> 0:09:12.160 warning shot. For example, during an altercation, somebody might fire 0:09:12.200 --> 0:09:14.960 the weapon up into the air as a warning, and 0:09:15.040 --> 0:09:18.640 they would argue this is a form of self defense 0:09:18.880 --> 0:09:21.520 to deter an attacker. You're not supposed to use a 0:09:21.520 --> 0:09:24.360 gun that way, but these people felt threatened, and the 0:09:24.400 --> 0:09:28.520 prosecutor said, well, that's aggravated assault. You've threatened people by 0:09:28.520 --> 0:09:30.920 shooting a gun. And the person will say, no, I 0:09:30.960 --> 0:09:34.160 was acting in self defense. I felt threatened. The prosecutor 0:09:34.160 --> 0:09:37.560 may say okay, well, listen, just plead guilty to this 0:09:37.679 --> 0:09:40.559 crime and I'll let you go with three years, and 0:09:40.600 --> 0:09:42.480 the person said, no, I think I'm I acted in 0:09:42.520 --> 0:09:45.040 self defense. I'll go to trial. Well, once they go 0:09:45.120 --> 0:09:48.960 to trial, that aggravated assault and the firing of a weapon, 0:09:48.960 --> 0:09:52.960 if they're found guilty, carries a fifteen year mandatory minimum. 0:09:53.040 --> 0:09:55.600 So we have cases in Florida where people are serving 0:09:55.640 --> 0:09:58.760 fifteen year sentences even after the prosecutor offered them a 0:09:58.800 --> 0:10:01.680 deal that would have had them serve three years. That 0:10:01.760 --> 0:10:04.560 twelve years has nothing to do with public safety. It 0:10:04.640 --> 0:10:07.080 just has to do with the fact that the defendant, 0:10:07.559 --> 0:10:10.160 for reasons good or bad, wanted to go to trial 0:10:10.240 --> 0:10:13.360 and try to approve his or her innocence, and so 0:10:13.800 --> 0:10:17.520 mandatory minimums can make the difference between pleading and not 0:10:17.600 --> 0:10:21.600 pleading so great it coerces people into pleading guilty, whether 0:10:21.600 --> 0:10:25.800 they're innocent or not. Kevin recognizes that judges are sometimes 0:10:25.800 --> 0:10:29.880 in a tough position. Judges understand that plea deals are 0:10:29.880 --> 0:10:32.920 a necessary and important part of the system, and that 0:10:33.200 --> 0:10:36.640 there just aren't enough resources for every case to go 0:10:36.720 --> 0:10:40.320 to trial. I think a bad habit has developed where 0:10:40.320 --> 0:10:43.600 they're not scrutinizing the plea deals as carefully as they should. 0:10:44.320 --> 0:10:46.719 They should make sure that plea deals aren't being used 0:10:46.720 --> 0:10:50.480 by prosecutors to go after the small fish and let 0:10:50.480 --> 0:10:54.040 the sharks get out with a shorter sentence. The thing 0:10:54.120 --> 0:10:58.760 I I try to emphasize is that I'm relatively privileged. 0:10:59.320 --> 0:11:03.000 I have, you know, a great deal of education. I 0:11:03.080 --> 0:11:08.920 was relatively um well off. But what people don't understand 0:11:08.960 --> 0:11:13.280 is when the government comes after you, you can't fight it. 0:11:13.880 --> 0:11:17.719 You can't afford to fight it. People will say things like, oh, yeah, 0:11:17.800 --> 0:11:21.240 going to trials expensive, it's not expensive, in a sort 0:11:21.240 --> 0:11:23.880 of throwaway line that like, you know, a new vacuum 0:11:23.920 --> 0:11:27.439 cleaner is expensive. My two trials and appeals cost two 0:11:27.520 --> 0:11:31.080 million dollars, and I didn't have two million dollars. I 0:11:31.120 --> 0:11:34.000 had to. I mean, my brother took out a mortgage 0:11:34.000 --> 0:11:36.680 on one of his houses. I spent all of my 0:11:36.760 --> 0:11:40.160 family savings to try to prove my innocence. I lost 0:11:40.240 --> 0:11:43.160 all of that money. Then my em lawyers were pointed 0:11:43.360 --> 0:11:46.559 as public defenders to finish the second trial and appeals. 0:11:47.440 --> 0:11:50.920 You just can't do it. That's why of all federal 0:11:50.960 --> 0:11:55.439 cases now and in plea deals, trials have vanished because 0:11:55.559 --> 0:11:57.319 no one can do it. And so that's the thing 0:11:57.320 --> 0:12:00.000 when somebody says, what do you think about indigent defense 0:12:00.480 --> 0:12:02.160 and the idea that you know, we should pay for 0:12:02.200 --> 0:12:05.040 somebody having a defense, I don't like that term because 0:12:05.080 --> 0:12:08.440 I don't think only the indigence can't afford a defense. 0:12:09.240 --> 0:12:27.040 No one can. M not only is going to trial 0:12:27.120 --> 0:12:30.160 a risky proposition and that you no longer have control 0:12:30.240 --> 0:12:34.040 over the result. Kevin is very right here. Going to 0:12:34.120 --> 0:12:39.240 trial is extremely expensive financially. We've talked throughout this season 0:12:39.280 --> 0:12:43.200 about all of the financial barriers that indigent defendants face 0:12:43.480 --> 0:12:47.080 in trying to win their trial. These things range from 0:12:47.120 --> 0:12:51.280 overworked public defenders to the costs associated with paying for 0:12:51.280 --> 0:12:56.680 forensic testing and expert testimony. But like Kevin said, those 0:12:56.720 --> 0:13:00.120 costs add up for everyone. Many people who are not 0:13:00.280 --> 0:13:04.600 indigent can become indigent just by being accused of a crime. 0:13:05.160 --> 0:13:07.640 If a defendant wants their day in court, they will 0:13:07.679 --> 0:13:10.160 have to consider a lot of things, including the trial 0:13:10.240 --> 0:13:13.480 tax as well as the financial costs, both of which 0:13:13.520 --> 0:13:16.600 are less costly if they decide to take a plea deal. 0:13:17.720 --> 0:13:20.920 To take a plea deal, defendants normally have to admit 0:13:21.080 --> 0:13:24.640 guilt under oath. This can present a huge problem for 0:13:24.640 --> 0:13:28.360 people who are actually innocent. There is, though a way 0:13:28.400 --> 0:13:31.920 around this dilemma. If an innocent person wants to take 0:13:31.960 --> 0:13:35.200 advantage of a more or less favorable plea deal rather 0:13:35.240 --> 0:13:38.360 than risk getting hit with the trial tax or perhaps 0:13:38.360 --> 0:13:42.000 a mandatory minimum sentencing following a jury trial, they can 0:13:42.120 --> 0:13:45.440 enter a special type of plea known as an Alfred plea. 0:13:45.960 --> 0:13:50.119 In the States system, I see Alfred please quite regularly. 0:13:50.600 --> 0:13:53.320 Many of my own clients have opted to enter Alfred 0:13:53.320 --> 0:13:56.800 please rather than risk going to trial. They felt it 0:13:56.880 --> 0:13:59.880 was just in their best interests to do so. But 0:14:00.080 --> 0:14:02.560 while working on this topic for the show, I had 0:14:02.600 --> 0:14:06.839 a surprising conversation with Judge Jed Raikoff, the federal judge 0:14:06.880 --> 0:14:09.840 from New York, who, as you'll hear, is not a 0:14:09.920 --> 0:14:14.560 huge fan of this type of plea. The federal law 0:14:14.640 --> 0:14:21.760 and the law in some states allows theoretically a person 0:14:22.160 --> 0:14:27.080 to come into court a defendant and say, even though 0:14:27.120 --> 0:14:30.120 I'm innocent, I don't want to take the risks, and 0:14:30.200 --> 0:14:33.600 I think the government is probably likely to convict me, 0:14:34.520 --> 0:14:38.240 but I'm prepared to accept that. So I may pay 0:14:38.280 --> 0:14:42.760 my innocence, but I will take the consequences of a 0:14:42.800 --> 0:14:46.680 guilty place. This has been approved by the Supreme Court 0:14:46.840 --> 0:14:51.080 in case called Alfred. But you know, almost never see it. 0:14:51.800 --> 0:14:54.440 You never see it in the federal system and very 0:14:54.560 --> 0:14:57.640 very rarely in the state system. And here's why our 0:14:57.720 --> 0:15:02.400 criminal justice system is not an administrative law system. It 0:15:02.560 --> 0:15:06.480 is ultimately based on, or attempts to be based on, 0:15:06.480 --> 0:15:11.000 an application of basic moral precipents. And no judge wants 0:15:11.040 --> 0:15:14.320 to accept a guilty plea from someone who says he's citizen, 0:15:14.720 --> 0:15:18.440 and no prosecutor, for that matter, feels comfortable accepting a 0:15:18.640 --> 0:15:24.720 play from someone who says he's innocent. So while ironically 0:15:25.000 --> 0:15:28.680 and Alfred plea may be closer to the truth of 0:15:28.800 --> 0:15:33.120 what's really going on in some circumstances, you have almost 0:15:33.200 --> 0:15:36.920 never seen. What if I told you that I practiced 0:15:36.920 --> 0:15:41.000 in an area where alfred please are in fact routine, 0:15:41.880 --> 0:15:45.280 I guess my question that is to you why our 0:15:45.320 --> 0:15:49.480 prosecutors going along with that? Well, I can tell you 0:15:49.600 --> 0:15:51.760 just based on my own experience, and I've done a 0:15:51.760 --> 0:15:57.000 handful of Alfred Please myself just this year in and 0:15:57.160 --> 0:16:00.880 I think the short answer is that they are aware 0:16:00.880 --> 0:16:05.240 of how powerful mandatory minimum sentencing is they are aware 0:16:05.360 --> 0:16:09.480 that they can use this leverage to avoid having to 0:16:09.520 --> 0:16:13.360 go through the halsehol and expensive a trial, and judges 0:16:13.520 --> 0:16:16.240 are happy to take in Alfred plea because it takes 0:16:16.280 --> 0:16:19.960 one less case off of a crowded docket and move 0:16:20.080 --> 0:16:23.320 the business. So to speak, Well, you've just identify, which 0:16:23.400 --> 0:16:29.840 makes sense from a efficiency standpoint, is to my mind, 0:16:29.880 --> 0:16:36.760 totally repugnant from any moral standpoint. The prosecutor is saying, Judge, 0:16:37.240 --> 0:16:39.120 he claims he said it, and we don't believe him 0:16:39.120 --> 0:16:41.880 for one minute. But rather than have to go to 0:16:41.920 --> 0:16:44.400 trial and prove it, we don't have the resources, we'll 0:16:44.440 --> 0:16:50.360 just take the plea. The dependent and the fence lawyer says, oh, Judge, 0:16:50.840 --> 0:16:53.720 my guy is really innocent. He's never did this at all. 0:16:54.280 --> 0:16:57.880 But my gosh, we're not prepared to take the risk 0:16:58.200 --> 0:17:02.600 going the trial. That's that's too dangerous. So rather than 0:17:02.600 --> 0:17:06.360 trying to prove our innocence, we will take the plague. 0:17:06.800 --> 0:17:10.320 And the judge is saying, it all sounds fine to 0:17:10.480 --> 0:17:13.480 me because I've got twenty cases. I've got it here 0:17:13.480 --> 0:17:16.200 today and just at least get it down to nineteen. 0:17:17.119 --> 0:17:22.040 What you're saying is a total disregard for finding out 0:17:22.080 --> 0:17:26.880 the ultimate truth, a total disregard or putting the government 0:17:26.920 --> 0:17:32.440 to its proof, a total disregard for a judge's obligation 0:17:32.920 --> 0:17:36.800 to ascertain his best he or she can whether a 0:17:36.880 --> 0:17:41.000 person is really guilty or not. It becomes instead of justice, 0:17:41.040 --> 0:17:47.440 it just becomes convenient. Having said that, the reason this 0:17:47.520 --> 0:17:50.399 is going on is because of most cases the very 0:17:50.480 --> 0:17:53.160 high penalties that you faced if you go to trial. 0:17:54.119 --> 0:17:57.600 So basically the way the plate coloque we works very 0:17:57.640 --> 0:18:00.640 similar to the one you described in the federal court. 0:18:00.680 --> 0:18:03.280 Where you sit, you get to the part of the 0:18:03.400 --> 0:18:07.040 questioning where the court says to the defendant, are you 0:18:07.160 --> 0:18:10.280 in fact guilty? It's a simple yes or no question 0:18:10.920 --> 0:18:13.199 if the person is under oath, right, And I'm a 0:18:13.280 --> 0:18:16.680 lawyer and I can't have some body under oath that's 0:18:16.760 --> 0:18:19.359 knowingly committing perjury. So if I've got a client who 0:18:19.480 --> 0:18:22.120 is wanting to take advantage of a plea deal basically 0:18:22.400 --> 0:18:25.600 to avoid say a mandatory minimum, but at the same 0:18:25.640 --> 0:18:28.800 time they maintain their innocence, we can't give it yes 0:18:28.880 --> 0:18:31.000 or no answer. So we've got to telegraph to the 0:18:31.000 --> 0:18:32.760 court ahead of time that this is going to be 0:18:33.480 --> 0:18:36.320 plea made under under offer and Basically, all that the 0:18:36.400 --> 0:18:39.480 judge does is say, you know, your lawyer has told 0:18:39.480 --> 0:18:42.399 me that you want to enter a plea and that 0:18:42.560 --> 0:18:45.840 you still maintain your innocence. In order for me to 0:18:45.880 --> 0:18:49.479 accept your plea, Mr or misdefendant, you've got to satisfy me, 0:18:49.560 --> 0:18:53.640 as the judge, that you think that the prosecution may 0:18:53.720 --> 0:18:56.280 very well be able to convict you, and that because 0:18:56.280 --> 0:18:59.080 of that it's in your best interest to take advantage 0:18:59.119 --> 0:19:01.160 of this plea. Is that what you want to do? 0:19:01.440 --> 0:19:02.960 And so then they bull it down to just a 0:19:03.000 --> 0:19:05.880 different yes or no question, But it takes about five 0:19:05.920 --> 0:19:10.600 minutes or less. Well that that is certainly streamline. Oh, 0:19:10.640 --> 0:19:12.879 I was in court last week and I saw a 0:19:12.960 --> 0:19:16.520 judge and we were one of the cases literally stand 0:19:16.720 --> 0:19:19.080 I think it was twelve defendants in the well of 0:19:19.119 --> 0:19:22.800 the courtroom and uh have them standing side by side 0:19:22.800 --> 0:19:26.240 with their counsel just doing mass please, Uh, just going 0:19:26.280 --> 0:19:29.679 through the questionnaire that you Mr. So and so, you 0:19:29.800 --> 0:19:31.439 miss so and so, and then just yes or no 0:19:31.600 --> 0:19:33.439 all the way down. And they were doing you know, 0:19:33.480 --> 0:19:37.520 ten or twelve at the time. The blame in part 0:19:38.200 --> 0:19:42.840 is on all of us because this would not be 0:19:42.960 --> 0:19:47.119 occurring or not occurring in the extreme way that we're describing. 0:19:47.320 --> 0:19:54.360 If there were more judges, more resources for criminal defense lawyers, 0:19:54.880 --> 0:20:02.800 especially for indigence or in depth enquiries, lower penalties. Why 0:20:02.920 --> 0:20:05.959 do we have all this? We have all this because 0:20:06.000 --> 0:20:11.840 the legislature toughened up in their view in the nineties, seventies, eighties, 0:20:11.880 --> 0:20:16.800 and nineties to combat what was an undeadly rising crime rates. 0:20:17.359 --> 0:20:20.520 Crime rates have come way down since then, but the 0:20:20.600 --> 0:20:25.320 laws remain on the books. Two plus million people are 0:20:25.680 --> 0:20:30.920 the jail or prison, and we have these very superficial proceedings. 0:20:31.359 --> 0:20:34.359 If you took the person in the street and showed 0:20:34.359 --> 0:20:38.520 them what you just described the mass play, I think 0:20:38.600 --> 0:20:41.240 most people would say, oh my gosh, I ever thought 0:20:41.240 --> 0:20:43.080 of work like that. I mean, that's like what they 0:20:43.160 --> 0:20:46.440 used to do in Soviet Russia. That's not that's not justice. 0:20:46.920 --> 0:21:04.840 But they have no idea. Ashley Merchant and I see 0:21:05.160 --> 0:21:08.280 very similar types of cases in our law practices. So 0:21:08.320 --> 0:21:11.320 I wanted to get her thoughts on Alfred please, and 0:21:11.520 --> 0:21:14.800 on Judge Rakoff's assessment of what he sees as the 0:21:14.840 --> 0:21:18.720 problem with Alfred. Please. She brought up this new point, 0:21:18.920 --> 0:21:22.840 and that is that Alfred is another area where prosecutors 0:21:22.920 --> 0:21:26.639 can control the charges by refusing to even offer a 0:21:26.680 --> 0:21:31.080 plea bargain unless the defendant admits guilt. I have another 0:21:31.160 --> 0:21:33.520 case that I can give a parallel to where I 0:21:33.560 --> 0:21:36.119 have a child who was fifteen years old at the time. 0:21:36.520 --> 0:21:41.480 He was alleged to have abused his younger cousin and 0:21:41.840 --> 0:21:44.200 he said he didn't do it. And he was fifteen, 0:21:44.240 --> 0:21:46.120 I mean, he was a kid, but he was charged 0:21:46.160 --> 0:21:48.720 as an adult. It's a twenty year mandatory prison sentence 0:21:48.760 --> 0:21:51.440 on that. So he was offered ten years pre trial 0:21:51.960 --> 0:21:54.720 and but a lifetime sex offender registrate and pre trial. 0:21:54.800 --> 0:21:57.720 He just said, I can't agree that I did something 0:21:57.760 --> 0:22:00.159 I didn't do. And in that case, the prosecut or 0:22:00.240 --> 0:22:03.720 was not willing to accept this Alfred plea. Part of 0:22:03.720 --> 0:22:06.280 the plea deal in order to reduce the charges from 0:22:06.280 --> 0:22:09.280 the charges that carried that twenty year mandatory minimum, said 0:22:09.320 --> 0:22:11.840 if you don't admit guilt, I'm not going to get 0:22:11.920 --> 0:22:13.400 rid of that charge and let you get the ten 0:22:13.440 --> 0:22:15.879 year sentence. He just said, I can't do it. I 0:22:15.920 --> 0:22:17.679 can't admit that I did something I didn't do. So 0:22:17.720 --> 0:22:20.439 he went to trial. He was convicted. Only was the 0:22:20.440 --> 0:22:23.520 testimony of his cousin he testified that he didn't do it, 0:22:24.080 --> 0:22:26.479 and we're now on appeal. I didn't represent him at 0:22:26.480 --> 0:22:28.520 the trial, but I now represent him on appeal, and 0:22:28.560 --> 0:22:31.720 we've gotten an offer to fifteen years, and he's told 0:22:31.760 --> 0:22:34.680 me he wants to take it, but he cannot admit guild. 0:22:34.880 --> 0:22:37.280 And I told the prosecutor, you know, I can't put 0:22:37.359 --> 0:22:39.680 him up and have him under oath admit guilt because 0:22:39.680 --> 0:22:41.720 I don't think he did it. And I can't put 0:22:41.760 --> 0:22:43.359 him up there and have him commit perjury. And of 0:22:43.359 --> 0:22:45.840 course they're saying, well, he's not committing perjury's lying to you. 0:22:46.280 --> 0:22:48.840 But how do you know. He's asked me, do I 0:22:48.880 --> 0:22:51.160 need to lie to get this deal? And you can't lie. 0:22:51.240 --> 0:22:53.200 I can't have you lie on the stand. I can't 0:22:53.200 --> 0:22:55.439 have you under oath lie about something. But at the 0:22:55.480 --> 0:22:57.720 same time, I don't want to be the reason that 0:22:57.840 --> 0:23:00.359 he can't get a lesser sentence and can't get out prison. 0:23:00.440 --> 0:23:02.520 You know, he's a kid. I think a lot of 0:23:02.560 --> 0:23:04.720 times criminal defendants get up there and they lie and 0:23:04.760 --> 0:23:06.840 say they did something they didn't do just to get 0:23:06.840 --> 0:23:10.399 the deal, and I cannot say I blame them. Said 0:23:10.440 --> 0:23:12.760 that in the federal system, of course, where he works. 0:23:12.960 --> 0:23:16.119 I think he used the phrase theoretically, this is possible, 0:23:16.600 --> 0:23:21.119 and he very not so suddenly indicated that's really the 0:23:21.200 --> 0:23:24.600 exception rather than the rule, at least in the framework 0:23:24.640 --> 0:23:27.679 of the cases that he sees in the federal system. 0:23:27.920 --> 0:23:30.359 And I said, Judge, you know what if I told 0:23:30.400 --> 0:23:33.159 you that it's really really common, and I've done several 0:23:33.240 --> 0:23:37.280 already this year in the state system here alone. He 0:23:37.680 --> 0:23:39.800 seemed to be a little bit surprised by that. But 0:23:40.000 --> 0:23:42.960 it's really something that's used a lot, and it's used 0:23:43.040 --> 0:23:46.480 as a way, I think, to permit people to take 0:23:46.520 --> 0:23:49.280 advantage of plea offers because they think they're gonna get 0:23:49.280 --> 0:23:53.199 hammered by a judge or by mandatory minimum sentence if 0:23:53.240 --> 0:23:55.560 they don't take some kind of a plea deal, and 0:23:55.600 --> 0:23:58.080 so they have this mechanism called an alpha plea and 0:23:58.080 --> 0:24:00.639 they use it to get past that question when the 0:24:00.720 --> 0:24:02.520 judge says, are you in fact guilty? And all you 0:24:02.520 --> 0:24:04.840