Due Process – Let’s Make a Deal: The Plea Bargain (Aired 12/9/12)
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Due Process – Let’s Make a Deal: The Plea Bargain (Aired 12/9/12)

September 14, 2019

due process winner of 21 regional Emmy Awards including the 2010
New York Emmy for our coverage of voting rights and
the 2012 mid-atlantic Emmys for outstanding interview special and outstanding discussion series due
process is a presentation Rutgers School of Law Newark and the
Edward J blasting School of Planning and public policy studio facilities
provided by the Rutgers I’m TV studio Division of
Continuing Studies what percentage have cases actually go
to trial its a I’d say probably in a 23 percent but what happens to all the others the
more than 95 percent that never get to trial the answer in two words plea bargains I Drive to set up in a sexy that we is a time served the deals between the
prosecution and defense that keep the criminal court system
moving and the focus serve this edition due process major funding for due process provided
by the fun for New Jersey supporting inform citizens for an
effective democracy the plea bargain we know it’s a fact of
american justice but can you imagine where we’d be without it
in fact without the plea deal the system would simply grind to a halt and should that be cause
for concern I’m Sandra King and on this edition of
due process we ponder the hypothetical question does the plea
bargain promote justice or impeded and what would happen if
every accused were to say I’m entitled to a trial and I want it
like what we’ve seen on law and order for
years I’m like in real life the crime is usually followed by a trial the one offer may crop up somewhere
along the way murder one for the mailman assault one
attempted murder to Catherine Lansing and you open up on
the cases you know that play for the Oprah murder 2 for the
mailman assault 3 for Lansing 25 to life now you make this dealer mister bergstrom in
Iraq here but while cases on law and order tend to find their way to trial the real deal is just perhaps a negotiated agreement a plea deal in
lieu of trial in almost every case you willing to
plead guilty three fans have criminal restraint you know with that crime means yes
alright and you know that since it is a
third-degree crime it’s punishable by a maximum of five years imprisonment in the New Jersey State Prison to
understand yet what percentage cases windup actually going to trial its one to two percent for example here in
Essex County in the last 12 months we had just about forty five hundred criminal indictments and we had I
believe 83 trials mister camara agrees to attracted not guilty in plead guilty to
counts 6 at the indictment which is resisting my
flight some most cases don’t go to trial of
very very few actually do very few cases go to trial yet every
defendant has the right to a jury trial correct the American
justice system may not have started out that way but it’s grown to be a matter love let’s
make a deal and by now the courts the criminals the
prosecution and defense the all rely on reaching a bargain before a jury is ever called with
defense lawyer’s perspective a plea bargain is a circumstance for
your client materially benefit from a negotiated this position with the
government effect in order for the really be a plea were you feel good
about he needs to have got more than he
deserved in terms of concessions with the state’s recommendation five
Irish Setter in a sex change that me is a time served time served 35 days just a month in jail in exchange for a
plea have one count have resisting arrest the other more serious counts dismissed along with the
rents I’ve real time had he gone to trial and
been convicted and everything with which he was charged
with his exposure have been everything that was in the indictment
everything would have been menem twenty years plea bargains give
everybody in the system an opportunity to advance arguments for what you might call a
relatively just a result why not for those cases are people that
are usually charge for third- and fourth-degree offenses which are the
lower-level offenses who even if you went to trial and
receive the conviction we get probation anyway why not enter into a plea bargain
we could do that had a time and concentrate those other resources
torch trials over you more serious offenders evaluating this particular 1i think it’s
a good send a fax a good defendant who is
likely to be rehabilitated by in the pre-trial intervention program Rs county prosecutor Bobby and he says
Hill never plea bargain on a murder charge at
least a more scanning if you take somebody else’s life in you
do it knowingly and purposefully we’re trying the case but everything else is up for
negotiation week ago hiney typically on these armed
robberies were giving 12 years if it’s a real serious armed robbery you could be
looking at 24 offer his personal issue over it now it
more that was the contemplation in the system prosecutors handling said to give 24 we want to make sure we
entered the fair and reasonable plea offer so that we don’t jam the court
system so we can try it was really important cases he signs with the still so most times
it’s a case of clearing the calendar but sometimes it’s a matter the deal in
exchange for cooperation for helping the state to get
a bigger fish something that may not always sit well
with the victim a scenario taken to an extreme in this
Hollywood version have a plea deal sixty pick up a little
girl to him her big sister and we’re too
perfect service however you could win this case can take a chance and its aftermath
historic with Petraeus who should sorry me to do hoc this is how the justice system works this picture of the vengeful violence
victim enraged at the state me challenge eventuality but what may be nearly as shocking to
the viewers a law and order that minuscule number of
criminal cases than ever gets close to a jury not guilty what percentage have cases actually go to trial its a I’d say probably in a 23 percent it’s it’s a small number in any county still by law all defendants could demand trials and what if they did the system would be overwhelmed United
States simple switch say it would be over want if everyone else
for a jury trial would have a twenty five-year backlog for the
governor and legislature would have to I’m beef up the bench considerably consider considerably and our friend judge Costello may
understate what would happen so should we celebrate the ubiquitous
plea deal but does it open the door to potential
abuse are the deals dealt out evenly could the
innocent ever be copping a plea and how did we
get here anyway for some answers we turn to a lawyer
who’s worked the justice system on both sides John Vasquez %uh former First Assistant
AG for New Jersey now partnered with our friend my quickly
on that defense side and from the ACLU of New Jersey its
policy counsel Alex shalom a former public defender and
one-time clerk to Chief Justice Dept reports welcome to
you both let me start by asking you Alex you’ve been on the defense side for your career the plea bargain has served your clients by March good thing I think a system without plea
bargaining out would not be good for clients will
would not be good for society but I think look it clear that our criminal justice
system as it exists now cannot continue unless we continue to
have plea bargains at the same rates at first but 16 what ninety eight-percent have cases dispose without trial well that’s what
we need to perpetually our current criminal justice system which begs the
question: do we want to protect perpetuate the
current criminal justice and if we think it’s a system that needs changing perhaps one place to start is with
plea-bargaining and some ninety percent in some counties as much as 99 percent
in the lowest counties ninety-seven percent that’s a lot and the only way that
system can work is by making the difference between the result the
defendant receives after a plea bargain very different much more favorable than
that which he would receive after trial and so everyone has a hand in
essentially pushing while defendants technically enjoy the
right to go to trial making it a right in name only at up interesting article from the kato institute says the the truth is that
government officials have deliberately engineer the system to assure that the
jury system established by the Constitution a seldom-used fair a fair statement no I don’t believe so anybody who wrote
that article never practiced criminal law either the prosecution or defense side
the theoretically everybody has the right to
go to trial but in reality unless our government was going to put
maybe ninefold judges on the bench increase the defense
bar and prosecution bar similarly you still wouldn’t be able to do it
because you just don’t have enough jurors to serve it’s difficult to get
people to give up time at their lives to come in and hear that many cases it
would be impractical okay so I it seems to me though that
that statement is not cancelled out by what you just
said but brother that government officials continue to perpetuate this system be cost it would be unworkable but with what we
have but footage fast lol the open suggested that
we would need more judges John just mention that we would need
more jurors but there’s another another way to skin a cat which is we need fewer defendants so perhaps in a
system that employed plea-bargaining less often we
would see some prior decision made by prosecutors about which cases were indicted perhaps you’d see fewer of
the nonviolent drug crimes brought to that just to trial but to the
charging states that there would be decisions made at the charging and if plea bargains
will espresso okay so John you you’re now on the defense side but you I’m your career is heavy on prosecution experience what he’d say to Alex when he
suggests that we change the way we look at crime
in this country perhaps don’t become don’t remain the job number one jailer of our people for the entire world does that sit well
with you well in a row as a prosecutor which is
my former role a believe it or not that’s really not my
decision to make we react to the laws are enacted by the
legislature but it’s giving you a unique perspective
and I’m asking you to take what you’ve seen and give us a candid a appraisal love whether that system could be improved by doing I what alex
says which is a maybe you don’t have as many have offenses charged maybe you don’t
have as long a sentences maybe you don’t have as many
prisons as any that workable well I think without saying is that if
you’re not going to increase the resources to try the cases you’re
going to have to logically reduce the number of cases if you want the system
to survive I think it’s a fair point arm but I
guess what you’re asking is the whose role would be a I doesn’t make sense is that nonsense to
say maybe we should have fewer defendants
ordered is that really a a good proposal cuz I think Alex isn’t
only saying that this would be more practical but also that this would
be a positive and you be ultimately more just well I
think it does happen in actuality if you go to certain
counties a in the state of New Jersey depending
upon where you are certain cases may be prosecuted due to the volume in the abilities at the office by wave
resources upon other counties they will not be prosecuted or they’ll
be remanded to municipal court so I think a it does happen I you
certainly in an urban county where they’re
overwhelmed I’ll may have a different view towards 0 less
violent or the non-violent case as opposed to a
rural county where the volume is just not there so in a way it
does work in that manner just based on resources I but I think it’s difficult to say to the prosecutor you have to stop
prosecuting these cases when there’s laws on the book that say these are violations a war I I’m not so
sure that they’re all the prosecutor that would be more the legislative role
in my view because you’re speaking for the world the people arm and well everybody likes to complain
about the criminal justice system you get in there realize how hard
defense counsel prosecutors and the judges work a as well as the people who serve as
jurors I it’s not as easy as people might think
but you know when a prosecutor is for net no one says to that person as far as I know you know what it’s your job to dispose I love ninety-seven percent or more if
your case is without a trial you’re right that’s not that’s not a
dictator yeah that’s how it works in fact there is a important consequence
prosecutor prosecutorial discretion in which they can decide here she go
over the past year maybe can decide whether to take the case in the first place I the but you’re absolutely right it is not a
mandate I guess the question is why do we have so many please and maybe the reasons beyond a what we
see is far as it the resource issue want
them to be clients on the defense side like find
out the you like certainty okay judges to our sport like certainty as to
believe it or not trial works there’s always a risk there because
you’re putting your client’s life in the hands of 12 people you do not know so sometimes a as mister Bowman
indicated you’ve done your job if you think you’ve done better than you might
otherwise do but sometimes clients may take the a
plea deal which the Council defense council recommends
against because it provides some certainty and the fear
the unknown is a big fears got shorter sentence invariably then if there’s a conviction
not always I it depends upon the play if you look
at the Federal Police system a that’s a little different than the
state’s total different right mean you see certain people taking
please where you wonder if maybe they would have been better going off better going to trial you said I think
certainly some people plea because their risk averse and they want the certainty
that the john was talking about but we have a
system that to I think we can all envision a system
that would say to a defendant listen because there’s a certain risk
that attach to the state and that attach is to be with you
eliminate that risk and except the conviction without putting stated that
proves we can give you a slight discount on the
expected sentence for gonna give you 10 percent of fifteen percent of 20
percent but it’s not it’s not getting up 200-300 sacked four hundred percent and
500 I’d let us as rate hikes that certainly that’s
possible yes I am the open a defendant who receive time served that’s so in every case you have a certain
coercive affects the 35 days twenty years there’s a course in effect
from what we call the trial tax which is the phenomenon of the judge giving a
sentence that extremely harsh after trial an extremely lenient before trial
notwithstanding fact the judge is required in both instances two-way
aggravating and mitigating factors but that coercive effect is magnified
for poor defendants and that’s because when their pre-trial
detainees when they’re locked up before trial and they’re given the choice of either
plead guilty and go home or assert your rights and have a trial
which might take six months might take a year in my take
18 months might take four years from the time you first or pre-trial detainee to the time
you receipt rosso aside from what that says to our
conceptions have a presumption of innocence think about the pressure that that
exerts on a poor defendant to plead guilty notwithstanding his factual in its okay exactly so that begs the question do we therefore have reason to worry that we have innocent defendants who are told by a
lawyer who is absolutely you know being forthright
listen you know if you go we don’t know what
could happen with the jury you could have years in prison but
they’re willing to give you a non-custodial sentence or they’re
willing to give you a much shorter sentence do you worry that there are people who
play even though they’re innocent i think is a practical matter a without having any direct evidence I’m
sure there are people plea today a who are not actually guilty of
the crimes which depleting I I don’t think it look any more than
something like the Innocence Project we see people on death row the most
serious crime no series penalty being exonerated because at the end I if
those folks can get to our system to be convicted
when they actually did not commit the crime then there’s not a doubt in my mind
other people will plead even if they’re not guilty as a defense counsel we like to tell our
clients that innocence helps but it’s not this positive because it’s the evidence and
unfortunately one of the weaknesses in our system is
because none of us to have a crystal ball can see precisely what happened
we’re dealing with shadows and remnants events what we call evidence and that
evidence will control and you have to weigh the obviously in a
sense but you also have to wait what are the chances of conviction if I fight
this okay so this seems to me to be a big
problem eat it certainly is that the innocent
people plead guilty and John referenced the Innocence Project
and people who are exonerated after going to trial but any innocence project’s long list that
exonerees includes a whole has two people who pled
guilty and were later exonerated in those for people probably who looked at the evidence and
decided they were risk-averse and didn’t want to take the chance with a death sentence or sentences life in
prison without parole and accepted a lesser sentence and Donald a lower scale
in the lower level scale that happens every day now technically
New Jersey we don’t allow the innocent to plead guilty by rule of court and by out rules of
professional conduct wires aren’t allowed to advise their
clients to plead guilty but it’s really a hobson’s choice for a
lawyer to say to a client whose stuck in jail no no if you’re
telling me you’re not guilty you must see in jail for six more months and face the chance to
go to prison for a long time rather than getting out of jail today
it’s a reality that everyone is in the system that was about that innocent people do in fact plead
guilty and in some states in some jurisdictions we allow someone to stand up and say I’m
not guilty but I want to accept this plea deal but
we don’t allow I don’t last night in New Jersey we actually force the person to say yes I did this that’s right and that seems to me almost more hideous its piling on a even even more what do we do we’ve got about four minutes left in I
really don’t know what the answer is we’ve gotten one proposal here from Alex
which might allow us to have more trials but
the whole system now relies on depends on the plea bargain is there any way to get past that so
that we don’t have this kind of horrendous happening well again i mean
the question is do you want to get past it so for instance in the example we saw
with the gentleman who got 35 days when he was facing a minimum of 20 years what don’t we know what the underlying
assumption that the substantive case was a good
case the case may fall apart on the prosecutor you know a witness to a change your
testimony evidence did not come through so what I in that case we may well
understand it but i’m talking about. what is the the underside evolve this
which is the innocent person who may cop a plea just be costs the uncertainty and the
long sentences is looming I think if we want to reduce
the risk that innocent people plead guilty if we want increase the justice quotient in our
system what we need to do is diminish the difference between a
result after plea and a result after trial however
acknowledges that for to induce please there has to be some
difference but we don’t want that difference to be so coercive the impact
the trial tax to be so high that a defendant is afraid to exercise
his constitutional rights when he’s in fact in this and how does that sit with you I agree with as his comments I mean in I
guess it depends what system your AI at personally at me and bed in the
federal system as we reference they do a real conduct sentencing
meaning regardless of your plea okay that may set the statutory minimum
maximum but after you set those parameters they look at what actually
happened if you use a gun if there were more than five
participants things of that nature see you could end up in a situation which is
not much better than if you want to try long walks I think when you turn to the state
system I you would have a right to it its its
back different that you would wind up in a situation
where do you agree with that out for you you would actually get something close
to what you have got my head you lost a try I think it depends really dramatically on a case by case
basis certainly you don’t get the benefit of the
substantial assistance usually three points week which can matter
depending on the case I any depends how the fax lay out and
play out but I I think the difference between plea
and trial in the state system is more disparate
than it is I definitely agree with a comma and and
and that’s not to say that the federal system wrong I’m just saying that the the
benefit that you get sometimes is not nearly as great as that you might
receive at the state level and I think one reason for that Sandy is
usually when prosecutions are brought in federal court by the time the indictments is levied
that the prosecution is solid so I don’t think there are many indictments levied
in federal court that are very flimsy there are in state
court flimsy indictments there’s overcharging which is why you see prosecutors offering 35 days on a
20-year case we haven’t even gotten to talk in word
got thirty seconds left we haven’t gotten to talk about the
exchange kinda deal I that will have to wait for for another
try but let me just ask you quickly if we come back here a couple have years
will anything if change well those numbers 97 98 99 percent plea deals change as we see stricter
sentences and more mandatory minimums fewer people exercise the right to a
trial I agree that you you’ll see the trend is West trials
not more and we will still be where we are now made with high
percentages on the please well with my text to Alex shalom and John
Vasquez for exploring a topic we think gets too
little attention the kind of talk you’ll find here every
weekend on our new website on demand every day a due process TV da trekkers
dot you for a man who had this one of for
associate producer time even know about and all of us here back to process I’m
Sandra King see you next week percentage cases windup actually going to trial its one to two percent for example here in
Essex County in the last 12 months we had just about 4500 criminal indictments and we had from 83 trials ninety trouble somewhere in
that neighborhood 83 trials out how many 4400 is that a good thing are I think it’s the right thing by its by
the way it’s the same across the state and across the nation
year after year after year and it’s not too far off the percentage
in civil we also try about 2 percent of the cases
that are filed in the court I don’t think it’s a bad thing I think
it’s the way the system works want even more insight on Law and
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  1. What seems to be the argument or basis for the plea bargain is that the lesser of two evils is offered the accused.  But nothing is said as to how the prosecution can convincingly determine (or propose) the trial outcome even before the hearing? 

  2. So here lies a problem with the plea bargain:  the prosecution has the power to accurately pre-determine the sentencing should the defendant exercise their right to a trial–and again, this predetermination occurs even before the hearing….

  3. So, to beat this corrupt judicial system EVERYONE SHOULD GO TO TRIAL. The system doesnt have the resources or staff to accomadate a trial on every case so lots of cases will quickly be dismissed. Systems are oppressive, but they are often flawed and can be easily worked against on a collective level. DEMAND TRIAL AND OVERWHELM THE SYSTEM!

  4. "Could the innocent be copping a plea? " – Yes. I was inncocent of a crime I was arrested for. Because I was arrested with no money on me & with no friends or family in the same area code as the jail I could not contact anybody. I sat in jail for 40 days & though I didn't want to take a plea deal my public defender said " if we take it to trial we might win but if we don't you will serve 10+ years in prison." Then proceeded to encourage me to take the plea deal dropping the1 felony to a misdemeanor & dropping two other felonies altogether & giving me 4 years probation, 52 weeks of classes @ $50 a class and thousands of dollars in fines. For some shit I didn't do that a drug addict said I did. SMH Fuck the system & fuck myself for not sticking to my own decision and taking a plea.

  5. I know all about it! I took a plea deal! I was never guilty…… I was horrified! And I'm still very very traumatized over the event.

  6. The Law & Order tv show is funny isn't it? In real life, the only trial that 95% of America's trial lawyers have ever had is crackers & cheese when they shop at Costco

    What isn't funny as well as unbelievable, is how the US Supreme Court could have praised that crime, known as, the "plea bargain"…even going as far as opining that "the plea bargain is necessary for the criminal justice system".

    Apparently the current SCOTUS, never learned that the Anglo-American method of proper adjudication was developed from the mindset perceiving that it would be better for a criminal to escape justice, on occasion, than for one not guilty soul to be attributed with the legal status of criminal

    The fact that every known procedural precautionary guard against the tragedy of a false conviction, has been included within the constituting of America's legal process that is due, is why it could be presumed that prosecuting offices will have the automatic inclination to make great effort to circumnavigate any & all obstacles imposed upon them while pursuing a conviction…and indeed, such a complete circumnavigating is precisely what has been effectively achieved by the prosecutorially invented "plea bargain"

    Crime is something that criminals like…that's why the government perpetrates so much of it. Also, crime victimizes the not guilty party that gets "caught up" within a criminal occurrence. The "plea bargain" is something that criminals like…because they receive light punishment…and once again, the government perpetrates it much. But when plea bargaining makes victims, it is always only the not guilty defendants that are victimized…or the victims of the guilty defendants, for whom, justice was not served or, perhaps, were denied of their much needed remedy, due to dropped charges

    Pure & simply, "plea bargaining" possesses all the anatomy of crime…because that's precisely what it is

    I possess yet more evidential information, proving "plea bargaining" to be a crime
    However, this has already been sufficient for this occasion

  7. The plea bargain concept will F you even with a paid attorney. Think about it… your pricey private attorney has to keep a good rapport with the DA's office and attorneys. If your private attorney does not, you attorney will only receive shitty plea bargains… thus, clients will never go to said attorney when people get sentenced or only offered crappy deals. That pricey attorney will throw people under the bus to keep harmony with the DA's office. It's a complete shitty system — whether you get an overworked PD or a paid attorney.

  8. Said exactly as one NON lawyer would expect.   Pure dysfunctional system that in no way offers any knowledge to the accused about how the law works and what is to be sought out for discovery when almost ALL prosecutors assume guilt and will not find any neutral quest for justice. These guys all say it is not as easy as you thin as they have almost invested in 700  indictments per year for their $300-400K.  Trail lawyers may actually talk to a client and pose options and get some discovery or evidence before he sends his man down the river unlike the other TWO=  Pub def & DA who never even really review the case I think they figure every hour is worth 2 years. Some 5 year sentences take < 1 day of shell game.


  10. It's not fair at all. plea bargains are often used as blackmail. It allows the prosecutors and law enforcement to use evidence they don't actually have, or that doesnt even exist! Two cases have been brought against me which were false and vexatious. The first didnt even have a witness. I was put in jail with excessive bail and denied a bail hearing so after 3 weeks I reluctantly accepted the plea deal to go home the next day (when I had overwhelming evidence of my innocense). Turns out that had I not accepted the peal and resisted the overwhelming pressure from the public defender, as I'd wanted to do, the DA would have had to admit at the Preliminary Hearing the next day that they had no witness and Id have been released anyway. I tried to withdraw my plea, it was denied. SOOOOO WRONG! Im not even going to get into the 2nd case cause its so unbelievably corrupted. There needs to be some extra layer of verification that the DA actually has real, admissible evidence to support the original charges, and the plea actually

  11. I wonder how can an lawyer or an attorney truly know what they are made of if they never go to trial. Smh this is bull shit

  12. I watched this video for a criminal procedures class. The video was probably okay, but the exceptionally poor captioning was so distracting that it made it very difficult to follow what was actually being said. At one point, the captioning read, "week ago hiney" when the actual video said, "We could go high." This was far from the only error in the captioning. It was like watching someone pick their nose while they were talking. It was distracting and ineffective.

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