Eating Dogs and Bargaining Pleas

In the movie Hombre, Paul Newman played John Russell, a man raised by Apaches. Because of his blue eyes and fair skin, his fellow stagecoach travelers were unaware and naturally insensitive to his Apache upbringing. They talked of Apaches, and of Apaches eating dogs. Audra Favor, the prim and proper wife of an unscrupulous Indian agent, made her disdain known through grimace and words.

Audra Favor: I can't imagine eating a dog and not thinking anything of it.

John Russell: You even been hungry, lady? Not just ready for supper. Hungry enough so that your belly swells?

Audra Favor: I wouldn't care how hungry I got. I know I wouldn't eat one of those camp dogs.

John Russell: You'd eat it. You'd fight for the bones, too.

For those of you convinced you would never plead guilty to a crime you didn’t commit, I suggest you reconsider. Not only might you plead guilty, you might figuratively fight for the bones.

Assume for the remainder of this post that you are under arrest for armed robbery of a bank. Assume also, if you wish, that you are innocent. That last assumption will have virtually no impact on the outcome, other than to increase your sense of injustice and increase the time you may spend in prison. But assume you are innocent.

Assume also I’m your court appointed attorney. I’ll help you through this best I can. I concede I don’t know too much about your case, and that we haven’t talked except that one time just before your arraignment, but I hope you’ll cut me some slack; I have 149 other cases also demanding my attention.

I realize you’ve been in jail for a few weeks now, five to be accurate, and you want out. I’m trying to make that happen. I submitted a motion to have your bail reduced, but it was denied. It’s still at $200,000. If you can’t somehow come up with the $24,000 non-refundable fee to the bail bondsman, you’ll simply have to wait it out here. Sorry.

If you insist on going to trial, and that is certainly your right, the trial might not occur for a while. Yes, you have a right to a speedy trial, but the courts have been rather generous in their interpretation of the Sixth Amendment. The definition of a speedy trial varies from state-to-state, but here the trial must begin within 180 days of the arraignment. So I guess we’re looking at four or five months, unless we agree to a postponement, and there are reasons we might want to do that. Did I mention that I have another 149 cases demanding my attention?

So what’s going to happen now is the DA is going to come in and talk to you about the possibility of avoiding the trial completely by pleading guilty. We’ll try to get the best deal she has to offer, then you can decide whether or not you want to plead guilty for a substantial reduction in sentence.  I’ll be right here, sitting close by, and I’ll quietly explain to you what’s going on. We won’t be recorded, and she won’t be able to hear us speak to one another if we keep our voices down. So let’s get this show on the road.

DA: You’ve been charged with violation of USC 2113(a). Given that you have no criminal record, that carries a base sentence of 33 to 41 months. Since you used a gun, even though no shots were fired and no one was hurt, that bumps the range up to 78 to 97 months. Those numbers are based on the federal sentencing guidelines, and there’s not much I can do about them. I'm going to be honest with you. If we go to trial, I’ll be asking for the maximum, but it will be up the judge to make the final decision on that. I assure you, though, they tend to sentence near the upper limit. So let’s just say you’re looking at 97 months if you go to trial. That’s eight years.

You: But I didn’t do anything.

DA: The evidence says otherwise.

You: What evidence?

DA: That’s not what I’m here to discuss.

Me: If we go to trial, they’ll have to provide us all the evidence they have beforehand. We call that discovery. But they have no legal obligation to provide any discovery material before discussing a plea bargain. I know it doesn’t sound fair, but that’s the way the system works. Even if she tells you about evidence they may have, she doesn’t have to be truthful. The courts have ruled that she can lie about the evidence she has in order to secure a confession. That’s what’s going on here. They want you to confess to robbing the bank, and if you do so, they’ll give you a break.

You: But I didn’t rob the bank. I keep telling you that.

Me: It doesn’t matter what I think. What matters is whether we can convince a jury. Conviction rates for robbery cases are around 75%. Keep in mind that you have no alibi, so I wouldn’t put too much stock in the jury voting to acquit.

You: But I’m innocent!

DA: Here’s what I’m offering. If you plead guilty to robbery, we’ll forget that it was a bank and ask the judge to give you the minimum. That will cut the sentence down to 63 months. That’s almost three years off. With time off for good behaviour, you could be out in half that, say 32 months.

You: I don’t care. I want a trial. I want a jury to hear my side of the story. I’ll never confess to a crime I didn’t commit. Never!

DA: Counselor, have you explained the facts of life to your client?

Me: There are several problems with proclaiming your innocence. First if you take the stand to proclaim your innocence to the jury, the DA can use your criminal past to impeach your testimony. You don’t have a record so that is no concern here, though it is for most my clients.

You: I’m not like all your other clients. I’m innocent.

Me. Yes, yes. I understand. Consider this: if you testify and are found guilty, the judge can increase your sentence on the assumption that you perjured yourself based solely on the jury’s guilty verdict. None of them believed you, so you must have been lying. Like it or not, that’s not only allowed, it’s called for explicitly in the sentencing guidelines. It’s considered an obstruction of justice enhancement to the sentence, and they frequently apply it. In this case, that would add 24 months to the maximum she was talking about. That would mean you’re looking at 121 months, more than ten years. If we go to trial, and that is completely up to you, I will advise that you not testify for several reasons, not the least of which is the sentencing enhancement.

You: But that’s not fair. I have a constitutional right to testify.

Me: Yes you do, but she has a congressional act that tells her the judge can add to the sentence just as I described, and she’s experienced enough to know it happens frequently. This has nothing to do with fairness or innocence, or truth or fact. This is our justice system. You are bargaining from a weak position. The only thing you have to trade are your constitutional protections, such as they are.

You: That’s not right. I’m innocent. I didn’t do it. I’m not going to confess to a crime I didn’t commit, ever.

Me: That brings up the third point you need to know. If you are found guilty and you refuse to convincingly acknowledge your guilt while in prison, it is extremely unlikely you will be paroled. They will deem you to be unrepentant and not rehabilitated. You will serve the full time.

You: But that’s not fair!

DA: Let me see if I can make your decision easier. If you elect to go to trial, and that is of course your constitutional right, I feel I’ll have no choice other than to show that you, not your accomplice, who by the way is being much more cooperative, that you played an aggravating role in the robbery, that you were the primary planner and leader. I’ll also prove to the jury that your actions had the effect of physically restraining the bank employees and clientele. Assuming I’m successful, and in this case I’m confident I will be, especially after my discussions with your accomplice, those two enhancements will add 24 and 30 months, respectively. That will bring your total to 151 months, assuming no enhancement for perjuring yourself on the stand. That’s twelve and a half years, assuming no perjury enhancement. And unless you’re later willing to admit your guilt, you’ll probably serve the full sentence. I’m sure counsel has explained that to you.

You: But I’m innocent!

DA: Did I mention your accomplice is willing to testify against you if I set him free right now? That doesn’t seem like the kind of thing a friend would do, but you know people. Don’t worry, though. I’m not going to let him out without serving some time, a few months at least.

You: Can she do that? Can she let someone off for testifying against someone else? Isn’t that like bribery? Wouldn’t it be like her paying him for his testimony?

Me: The courts don’t see it that way. As long as she has some evidence to corroborate his testimony, and it doesn’t take much, then she can trade sentencing for testimony as she wishes.

You: But that’s not right!

DA: Now, on the other hand, if you’ll plead guilty here, right now, before I leave this room, I’ll be willing to reduce the charge to simple robbery. We’ll forget the fact that it was a bank, that you used a gun, that you were the leader, and that you restrained people during the commission of a felony. I’ll also ask the judge to give you the minimum. That means you’re looking at 33 months, you’ll be out in 16 months. Take it or leave it. I don’t care one way or the other.

Me: Trust me, she cares. She wants a conviction and she wants it easy. She has only so much time in a year, and any one trial can consume a substantial portion of that time. She wants a conviction so badly, she’ll plead out 95% of her cases this year, just as she did last year, and just as she will next year. It’s one of the few advantages you have, knowing how badly she wants you to plead. Hang out a little longer, she’ll sweeten the pot a little more.

You: But I’m innocent!

DA: And if you plead guilty, the sentencing guidelines call for another 6 month reduction. That’s almost automatic. I can also make a motion to the judge that you be granted an additional further reduction for assisting this investigation by notifying us on a timely basis that you intend to plead guilty. And I’ll do that for you. I’ll make that motion, but only if you decide in a timely fashion, like now, like before I leave. That will reduce the sentence to 24 months. You’ll be out in 12 months, one year instead of twelve and a half. It’s the best I can do.

You: I don’t know what to do.

Me: Take the deal.

You: But that’s a year for a crime I didn’t commit. If I go to trial, they might free me. You think they will believe me?

Me: Odds are if you go to trial, you’ll go to prison. Seventy-five percent chance. I’ll try my best, but I can’t promise anything. Did I mention I have 149 other cases?

You: I don’t know what to do.

DA: This might not be a good time, but I should let your counsel know I plan to ask for a six-month continuance. He thinks he has a heavy workload, but he should see my desk. I’m sure the judge will understand that there’s only so much we can do with the staff they give us, and I know the judge’s docket is pretty packed anyway, so we’ll just have to see how that goes. The point is, I guess, that if you plead guilty, you could be walking free before your trial would otherwise start.

You: I don’t know what to do.

DA: Did I mention that if you go to trial and are convicted, you also face a $75,000 fine?