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Title: 'Tens of Thousands' Wrongly Convicted Based on Unreliable Drug Tests
Source: Reason
URL Source: https://reason.com/blog/2016/07/11/ ... ousands-wrongly-convicted-base
Published: Jul 11, 2016
Author: Jacob Sullum
Post Date: 2016-07-11 09:36:18 by Deckard
Keywords: None
Views: 4927
Comments: 26

A crumb on the floor of your car can make you a felon, even if it's just a crumb.

Sirchie

ProPublica reporters Ryan Gabrielson and Topher Sanders estimate that widely used but notoriously unreliable field tests for drugs have led to "tens of thousands" of wrongful convictions in the United States. The tests are not admissible in court, but that does not matter much, since the vast majority of drug cases—90 percent or more—are resolved by plea deals. Gabrielson and Sanders' story, which was published in The New York Times Magazine over the weekend, illustrates that point with the case of a Louisiana woman, Amy Albritton, whose employment prospects were ruined by a felony conviction after Houston police pulled over her car in 2010 and found a white crumb they mistakenly identified as crack cocaine.

The test that was used to incriminate Albritton involves dropping a suspected drug sample into a vial of cobalt thiocyanate, which is supposed to turn blue in the presence of cocaine. But as Gabrielson and Sanders note, "cobalt thiocyanate also turns blue when it is exposed to more than 80 other compounds, including methadone, certain acne medications and several common household cleaners." That is not the only cause of false positives:

Other tests use three tubes, which the officer can break in a specific order to rule out everything but the drug in question—but if the officer breaks the tubes in the wrong order, that, too, can invalidate the results. The environment can also present problems. Cold weather slows the color development; heat speeds it up, or sometimes prevents a color reaction from taking place at all. Poor lighting on the street—flashing police lights, sun glare, street lamps—often prevents officers from making the fine distinctions that could make the difference between an arrest and a release.

It is hard to say exactly how common false positives are, although a Las Vegas study found that one out of three samples identified as cocaine was in fact something else. In Florida, Gabrielson and Sanders write, "21 percent of evidence that the police listed as methamphetamine after identifying it was not methamphetamine, and half of those false positives were not any kind of illegal drug at all."

Since field tests are widely used and police arrest more than 1 million people for drug possession every year, even a relatively low error rate could lead to thousands of erroneous arrests each year. In their analysis of drug cases in Harris County, Texas (where Albritton was arrested), Gabrielson and Sanders found that 212 people were convicted of possessing a substance that a field test mistakenly identified as an illegal drug between January 2004 and June 2015. "If Albritton's case is one of hundreds in Houston," they write, "there is every reason to suspect that it is just one among thousands of wrongful drug convictions that were based on field tests across the United States." 

Despite the dubious nature of the evidence against her, Albritton ended up taking a plea deal that involved a 45-day jail sentence after she was told that she otherwise could spend up to two years behind bars. She ultimately spent just three weeks in jail, but that was the least of her punishment.

She lost her job as the manager of an apartment complex in Monroe, Louisiana, and her new status as a felon made it impossible to find steady work that paid nearly as well, which in turn made it difficult to care for a son with cerebral palsy. Her whole life was upended by a crumb on the floor of her car that a lab test later found was not any sort of illegal drug. Albritton had no idea she had been exonerated until Gabrielson and Sanders tracked her down and got in touch with her.

In addition to the unreliability of field tests, Albritton's case illustrates the power that cops have thanks to excessive judicial faith in drug-sniffing dogs. Police supposedly stopped her car, which her boyfriend was driving, because he had failed to signal a lane change. It turned out the boyfriend did not have a driver's license, but the registration showed Albritton was the car's owner, making her presumptively responsible for any drugs police might find in it.

At this point the cops had no justification for searching the car, as became clear when they asked her permission. Albritton consented to the search partly because she knew she was not carrying any drugs but also because one of the officers said that otherwise he would bring in a police dog. The implication was clear: Either he would search the car based on her "consent," or he would search it based on the dog's purported "alert," which like the field test might or might not actually indicate the presence of contraband.

One point that Gabrielson and Sanders do not make in their otherwise excellent exposé: It would be utterly absurd and unjust to lock Albritton up and ruin her life even if the speck of material on the floor of her car (which weighed in at less than two-hundredths of a gram) had contained cocaine. But whether or not they have anything to do with illegal drugs, Americans should be alarmed by the the fact that police have the power to stop your car at will, search it at will (assuming they have a dog or use the threat of one to obtain your consent), incriminate you with a test so unreliable that its results cannot be used in court, and railroad you into a felony conviction.  (1 image)

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#1. To: Deckard (#0)

It's a good read. A life ruined by a combination of a faulty field test for drugs, a bored & lazy public defender, and a court system that's addicted to plea deals. An innocent civilian without knowledge of the legal system is no match.

Pinguinite  posted on  2016-07-11   10:56:04 ET  Reply   Trace   Private Reply  


#2. To: Deckard (#0)

[Article] A crumb on the floor of your car can make you a felon, even if it's just a crumb.

ProPublica reporters Ryan Gabrielson and Topher Sanders estimate that widely used but notoriously unreliable field tests for drugs have led to "tens of thousands" of wrongful convictions in the United States. The tests are not admissible in court, but that does not matter much, since the vast majority of drug cases—90 percent or more—are resolved by plea deals.

Presumptive tests are used to establish probable cause. Nobody has ever been convicted solely as a result of a presumptive drug test. Lots of people have been convicted as a result of a guilty plea. There is no need for the confirmatory test when the defendant pleads guilty, admits the possession, and chooses not to rebut the presumptive test result.

nolu chan  posted on  2016-07-11   15:55:28 ET  Reply   Trace   Private Reply  


#3. To: nolu chan (#2)

There is no need for the confirmatory test when the defendant pleads guilty, admits the possession, and chooses not to rebut the presumptive test result.

True in legal terms, but apparently not true in practice, as the full write up illustrates.

The law and/or legal system in place apparently does not do justice when people are persuaded to plead guilty when they are, in fact, innocent.

Pinguinite  posted on  2016-07-11   18:06:31 ET  Reply   Trace   Private Reply  


#4. To: nolu chan (#2)

Presumptive tests are used to establish probable cause. Nobody has ever been convicted solely as a result of a presumptive drug test.

That's absoloutly correct... felony convictions are based on certified crime lab tests for ID and weight... unless some criminal addicted pile of shit pleas to a smoking great deal before the lab results come in BECAUSE THE DEFENDANT KNOWS WHAT THE EVIDENCE WILL COMEBACK AS.

Either way, any idiots attorney who loses a felony trial by peer based on just a field test alone, is a moron and should not reproduce.

I'm the infidel... Allah warned you about. كافر المسلح

GrandIsland  posted on  2016-07-11   19:42:42 ET  Reply   Trace   Private Reply  


#5. To: Deckard (#0)

Despite the dubious nature of the evidence against her, Albritton ended up taking a plea deal that involved a 45-day jail sentence after she was told that she otherwise could spend up to two years behind bars. She ultimately spent just three weeks in jail, but that was the least of her punishment.

The bottom line is she pleaded guilty, now after the fact is claiming innocence.

Too late for that.

TrappedInMd  posted on  2016-07-12   8:23:03 ET  Reply   Trace   Private Reply  


#6. To: TrappedInMd (#5)

The bottom line is she pleaded guilty, now after the fact is claiming innocence.

She was coerced into pleading guilty - in fact, she was and is innocent.

“Truth is treason in the empire of lies.” - Ron Paul

"America is at that awkward stage. It's too late to work within the system, but too early to shoot the bastards."

Deckard  posted on  2016-07-12   8:34:39 ET  Reply   Trace   Private Reply  


#7. To: Pinguinite, GrandIsland (#3)

The thread "article" is a rehash of the original article which appeared in the New York Times Magazine.

The original title "Drug Test Sends Innocent People to Jail" is changed to the more sensational and less true supermarket tabloid styling, "'Tens of Thousands' Wrongly Convicted Based on Unreliable Drug Tests."

Neither article mentions the appellate court Opinion handed down on June 22, 2016.

http://www.nytimes.com/2016/07/10/magazine/how-a-2-roadside-drug-test-sends-innocent-people-to-jail.html

Drug Test Sends Innocent People to Jail

Widespread evidence shows that these tests routinely produce false positives. Why are police departmentsand prosecutors across the country still using them?

By RYAN GABRIELSON and TOPHER SANDERS
JULY 7, 2016

The presumptive test must be confirmed unless the accused does not rebut it, as when he/she chooses to plead guilty.

Few totally innocent people choose to plead guilty to a felony. A felony carries more than a year in prison. The article fails to mention the syringe that was booked into evidence but later found to have insufficient residue for testing.

Incident Report:

EVIDENCE:

OFFICER HELMS FOUND THE CRACK ROCK ON THE PASSENGER FRONT SEAT FLOOR BOARD AND TOOK CUSTODY OF THE EVIDENCE. I FOUND THE UNKNOWN POWER (sic) IN THE CENTER CONSUL (sic) AND THE USED NEEDLE HIDDEN IN BETWEEN THE LINING OF THE ROOF ON THE DRIVERS SIDE. OFFICER HELMS TOOK CUSTODY OF ALL THE EVIDENCE AND THEN TAGGED IT INTO SOUTH EAST NARCOTICS.

Typically, the plea agreement is not a barter over guilt or innocence, but involves a less than maximum possible sentence in return for eliminating the need for a trial.

She could have declined the search, but did not because she knew or suspected that the drug dog would alert on her car. That is the actual implication, not that a phony dog alert would be arranged.

It is quite a leap to conclude the cops had no justification for searching the car. The driver had no license. The owner had permitted an unlicensed driver [Anthony Wilson, 11/17/1981, 808 Otis, Monroe, LA] to operate the vehicle. They had sufficient cause to arrest the owner/operator and impound the vehicle. And Officer Nguyen had observed a partially hidden used syringe. And there was the positive presumptive drug test.

Albritton and Wilson were arrested on 8/3/2010. Albritton was booked on 8/4/2010 at 3:37:00 AM. She pleaded guilty on 08/05/2010.

If she were innocent, her best advice would be to not waive any of her rights, to say nothing beyond that she wants a lawyer, but definitely to say she wants a lawyer. To invoke the Miranda right to counsel, one must make a statement and say so. Remaining silent does not get it done.

Albritton did not even wait for the test results. She chose to plead guilty at the first opportunity upon meeting the judge to be charged, less than 48 hours after being arrested.

State of Texas v. Amy Albritton, Cause# 127297601010

Amy Albritton appealed.

http://law.justia.com/cases/texas/court-of-criminal-appeals/2016/wr-85-184-01.html

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. WR-85,184-01

EX PARTE AMY ALBRITTON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1272976-A IN THE 183rd DISTRICT COURT
FROM HARRIS COUNTY

Per curiam.

O P I N I O N

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of possession of a controlled substance and sentenced to forty-five days’ imprisonment in county jail pursuant to TEX. PENAL CODE § 12.44(a). She did not appeal her conviction.

Applicant contends, inter alia, that her plea was involuntary because, at the time she entered her open plea of guilty, she was not aware of subsequent laboratory testing that showed she did not possess any illicit narcotics in this case.

Based on the record, the trial court determined Applicant’s allegations are true. The trial court also concluded that, because Applicant was not aware of the laboratory results, her plea in this case was unknowing and involuntary. Applicant is entitled to relief. Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014).

Relief is granted. The judgment in Cause No. 1272976-A in the 183rd District Court of Harris County is set aside, and Applicant is remanded to the custody of the Sheriff of Harris County to answer the charges as set out in the indictment. The trial court shall issue any necessary bench warrant within 10 days after the mandate of this Court issues.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional Institutions Division and Pardons and Paroles Division.

Delivered: June 22, 2016

nolu chan  posted on  2016-07-12   14:32:43 ET  Reply   Trace   Private Reply  


#8. To: TrappedInMd (#5)

The bottom line is she pleaded guilty, now after the fact is claiming innocence.

Too late for that.

She has always claimed innocence since the arrest, and never stopped. She agreed to the plea out of expediency and ignorance of the legal system, as well as ignorance of the full consequences that pleading guilty to a felony goes well beyond the time in jail in the form of a felony conviction.

Blaming her for taking the plea is like me blaming you for throwing away your washing machine because you weren't smart enough to know that some internal $5 pump just needed to be replaced.

Common people are simply not smart enough to know how the legal system works. Getting falsely arrested, in this case in a foreign state hundreds of miles from home is absolutely NOT something common people are equipped to handle. It's a completely unexpected interruption of life, emotionally on par with getting kidnapped (as that's really what it amounts to) by a couple of big guys who work out in the gym, as many cops generally do. And regardless of how professional those cops actually are, innocent arrestees know that the all the cops involved believe they are guilty of a crime.

People in that situation are always pressured to compromise in any needed way to be released, regardless of whether they believe they are guilty or innocent. In fact, innocent people are probably more likely to compromise and take a plea than guilty people are because good, innocent, law-abiding people tend to trust the system, and trust the court appointed lawyer who has every motivation to resolve the charge in the most expedient means possible, which means a plea deal.

Every time an innocent person does a plea deal, though some legal blame can *technically* be ascribed to the defendant, it's a failure of the legal system first and foremost.

Pinguinite  posted on  2016-07-12   16:48:24 ET  Reply   Trace   Private Reply  


#9. To: nolu chan (#7)

Few totally innocent people choose to plead guilty to a felony.

I strongly disagree for the reason given in my prior post.

A felony carries more than a year in prison.

The prosecutor can offer the defendant a request to the court for leniency in the form of a partially suspended sentence, in return for a guilty plea.

The article fails to mention the syringe that was booked into evidence but later found to have insufficient residue for testing.

Actually the article does indeed mention that.

Typically, the plea agreement is not a barter over guilt or innocence, but involves a less than maximum possible sentence in return for eliminating the need for a trial.

In the mind of the defendant, I think it's more genuine to say that it's a barter of more guilt vs less guilt, if guilt is being measured by the expected jail term.

She could have declined the search, but did not because she knew or suspected that the drug dog would alert on her car. That is the actual implication, not that a phony dog alert would be arranged.

I disagree with the first statement. I mean, sure it could be true, but law abiding people generally don't refuse any request by police in part because they know they are innocent and want to cooperate to get the best treatment, and also because they trust the police. And we are all taught growing up that when you are polite to others, others are polite to you, and that police officers should be respected, and refusing any request is disrespectful.

And some cops -- I'm sure not all -- get angry when people refuse to surrender rights.

It is quite a leap to conclude the cops had no justification for searching the car. The driver had no license. The owner had permitted an unlicensed driver [Anthony Wilson, 11/17/1981, 808 Otis, Monroe, LA] to operate the vehicle.

I'm not so sure about the search justification. If they had justification to search, then they had no reason to ask the woman for permission to search it. Though I suppose they would ask for permission just to prevent her from later claiming the search was illegal.

The offense of driving without a license is administrative in nature and presents no direct implication of drugs being in the car. Searching the car would in no reasonable way offer the police more evidence of that offense, so why search?

They had sufficient cause to arrest the owner/operator and impound the vehicle.

For the offense of driving without a license and allowing an unlicensed driver to drive, whether it's arrestable depends on jurisdiction, and the same for seizing the car. I do not believe either of those are generally arrestable, though I'll defer to someone who's honest and knowledgable of exact laws. But I'm pretty confident, at the very least, that allowing someone without a license to drive a car is merely a citable offense and not an arrestable offense. Ditto for seizing the car. If the car is in traffic, it can be towed, but otherwise, again, neither of those offense should result in the car being seized. In the present case, they surely seized it because of the supposed drugs, not the license offense.

And Officer Nguyen had observed a partially hidden used syringe. And there was the positive presumptive drug test.

Though that test is, today, understood to be unreliable. If police know a test is unreliable and arrest anyway, then certainly they can be sued.

If she were innocent, her best advice would be to not waive any of her rights, to say nothing beyond that she wants a lawyer, but definitely to say she wants a lawyer. To invoke the Miranda right to counsel, one must make a statement and say so. Remaining silent does not get it done.

Agreed. But remaining silent is not an isuse here, and she did, in fact, get a lawyer. A court appointed one that didn't give a crap about her. And that goes back to my earlier points about how innocent people fare worse in the legal system than do experienced lawbreakers.

Albritton did not even wait for the test results. She chose to plead guilty at the first opportunity upon meeting the judge to be charged, less than 48 hours after being arrested.

She probably had no idea that the field test was inadmissable in court, and certainly figured that if she went to trial she'd be found guilty.

We cannot forget that among the inexperienced, there is a presumption that if you are charged with a crime, you are guilty. Not innocent until proven guilty, Just plain guilty. Albritton merely made decisions that day that she saw as making the best of a bad situation. Now she knows better, but only after suffering all the resulting hardship that she got.

Pinguinite  posted on  2016-07-12   17:19:47 ET  Reply   Trace   Private Reply  


#10. To: Pinguinite (#9)

Though that test is, today, understood to be unreliable. If police know a test is unreliable and arrest anyway, then certainly they can be sued.

Cite any case where this has been successfully done, on the stated basis that the test is unreliable.

A presumptive test is not meant to provide proof beyond a reasonable doubt.

A court appointed one that didn't give a crap about her.

This is based on what? For the initial appearance, the only thing anyone wants to know is how does she plead. At that point, nobody wants to hear why she believes she is innocent. If the prosecutor offers a plea agreement, the attorney must inform the client. The client can accept or reject. The attorney must accept the decision of the client. She pleaded guilty in under 48 hours. The attorney saw her, explained her options, and she took the deal. I do not see enough information to determine whether he gave a crap or not.

nolu chan  posted on  2016-07-12   18:01:51 ET  Reply   Trace   Private Reply  


#11. To: nolu chan (#10)

For the initial appearance, the only thing anyone wants to know is how does she plead. At that point, nobody wants to hear why she believes she is innocent.

A lawyer is an advocate. It's someone who is knowledgeable about the laws and the legal system who will go to bat for the accused. It's someone who applies his skills in the most advantageous way for the accused. So yes, there IS one person who should have wanted to hear why she believed she was innocent, and that person is supposed to be this lawyer. Why? Obviously because if she has a very strong reason for believing her innocence, than it would play a role in the decision whether to plead guilty or not guilty.

If the prosecutor offers a plea agreement, the attorney must inform the client. The client can accept or reject. The attorney must accept the decision of the client.

If all a court appointed lawyer is supposed to do is act as a communication liason between the defendant and the prosecutor, then the courts could save a lot of money by instead appointing court approved email accounts through which they can communicate with the prosecutor directly.

The attorney saw her, explained her options, and she took the deal. I do not see enough information to determine whether he gave a crap or not.

If she was not informed that pleading guilty would mean a felony conviction following her the rest of her life impacting her ability to get a job and have a reasonable career -- and it seems she did not -- then the lawyer failed to do his job.

Pinguinite  posted on  2016-07-13   17:52:22 ET  Reply   Trace   Private Reply  


#12. To: Pinguinite (#11)

She will quickly be brought before a judge for a plea. The judge will not entertain arguments of innocence. He will ascertain a plea of guilty or not guilty. The only available opportunity for going to bat for the defendant at that stage is to try to get a good plea deal from the prosecutor.

The defendant's profession of innocence plays no role in explaining the legal alternatives and explaining an offered plea bargain. In this case, he should have explained that she could take 45 days or plead not guilty and possibly do several years, depending on the confirmatory drug test. Her professions that the drugs belonged to the boyfriend speak to her expectation that the presumptive drug test would be confirmed. It was her car. She got arrested because the evidence was found in her car. If the evidence were to be confirmed, she could/would be convicted.

If she pleaded not guilty and waited for the confirmatory drug test result, there is no guarantee the 45-day offer would still be there. It does not matter whether the presumptive drugs were hers or not, unless the boyfriend wants to claim them. There is a rebuttable presumption that the stuff in her car is hers. She never heard from the 30-day boyfriend again, so I doubt he was in a volunteering mood.

http://www.nytimes.com/2016/07/10/magazine/how-a-2-roadside-drug-test-sends-innocent-people-to-jail.html

From the "Gabrielson and Sanders' story, which was published in The New York Times Magazine."

As Nguyen and Helms continued the search, tensions grew. Albritton, shouting over the sound of traffic, tried to explain that they had the wrong idea — at least about her. She had been dating Wilson for only a month; she implored him to admit that if there were drugs, they were his alone. Wilson just shook his head, Albritton now recalls. Fear surging, she shouted that there weren’t any drugs in her car even as she insisted that she didn’t know that Wilson had brought drugs.

Her choice was to take 45-days or take a chance on several years, in the belief that the evidence was actually drugs. She jumped at the chance for 45-days.

The judge should also have explained her alternatives and had her confirm, on the record, that she understood.

Assume she pleaded not guilty. She was from Louisiana and was out of state in Texas. Would she make bail and would she be allowed to leave the state pending trial? What was the probability that the evidence would be confirmed?

The attorney does more than act as glorified e-mail. He must explain the legal situation and available alternatives. If an offer is tendered, he has a duty to present it to the client. He can explain what he sees as good or bad, but the client must decide. The attorney should present the legal reality and the actual alternatives.

If the confirmatory test came back positive, was her defence viable that she did not know the drugs were in her car, and that the boyfriend must have put them there without her knowledge? Would you have advised her to plead not guilty based on that defence? What other defence would have existed?

Assume you believe her claim that she knew nothing about the alleged drugs. She is totally innocent regarding the alleged drugs except that they were found in her car. How do you know her boyfriend of a month did not put the alleged drugs in the car? Would you wager two years of your life betting that the sample will come back negative? That is what had to be explained to Ms. Amy and then it was her choice to make. It was not a question of whether she was innocent, but whether she found the probability of gaining an acquittal was worth turning down the offer of a 45-day sentence.

The decision had to be made then, not four years later after the test came back negative. Even if she had never used or possessed illegal drugs in her life, she had no way to know that the samples would test negative. How the heck does it seem like her decision was not informed? She had to know, and certify that she knew, it was a felony that she was pleading guilty to.

The attorney tells her what she is pleading to. The plea agreement is specific that it is a felony. If it carries a potential sentence of more than one year, it is a felony. The judge ensures she knows she is pleading guilty to a felony.

The Information stated that Amy Albritton "did then and there unlawfully, intentionally and knowingly possess a controlled substance, namely, COCAINE, weighing less than one gram by aggregate weight, including any adulterants and dilutants." Ms. Amy signed a document that stated she was pleading guilty to "the above felony information."

WAIVER OF INDICTMENT

I am the defendant in the above felony information. My attorney has explained to me my right to be prosecuted by grand jury indictment, which I hereby waive, and I consent to the filing of the above felony information.

APPROVED: s/s illegible
ATTORNEY FOR DEFENDANT

DEFENDANT: /s/ Amy Albritton

On this day, the defendant and his attorney apeared before me in open court. Having been advised by the court of the right to be prosecuted by indictment, the defendant knowingly and voluntarily waived that right.

Done on this _____ day of _____ 20__.

Stamp: AUG - 5 2010

V. Velasquez
JUDGE PRESIDING

INFORMATION/WAIVER OF INDICTMENT

The "Judgment of Conviction by Court—Waiver of Jury Trial" lists the degree of offense as "STATE JAIL FELONY-sec 12.44(a) PC." This document also contains the following: "APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED."

The Attorney Fees Expense Claim indicates a total claim of $125 for one day, with no out-of-court hours. The only attorney date billed was for Thursday, 5 August 2010, the date of the court appearance.

Your insinuation that she did not understand she was pleading guilty to a felony is without merit. She had to know it, she had to allocute to it in court, and she had to document it in writing with her signature.

It seems evident that she knew there would be consequences, starting with pleading guilty to a drug felony and getting sentenced to jail time.

nolu chan  posted on  2016-07-14   16:28:13 ET  Reply   Trace   Private Reply  


#13. To: nolu chan (#12)

Nolu, buddy, you don't get it. You do not understand my point.

But first...:

Your insinuation that she did not understand she was pleading guilty to a felony is without merit. She had to know it, she had to allocute to it in court, and she had to document it in writing with her signature.

I challenge you to go ask some random people in your town what they understand about the total penalties of a felony conviction, even if they plead guilty to it instead of fighting it and having a judge or jury convict. Do that and tell me how many of those people already know that, beyond jail time, it means it will be on their record for life adversely impacting their ability to keep or grow a career.

I'll bet the number that do will be an extreme minority, and that punishment certainly exceeds that of a 45 day jail sentence. Did anyone explain THAT part of the felony conviction to this woman?

But dude.... step back a moment and consider that a woman's life was ... perhaps decimated is too strong a word in all honesty, but she lost a good job and home, and had her middle class life reduced to something close to poverty. All in spite of the fact that she was innocent. Ergo, the legal system FAILED. It FAILED. With a capital F. Okay. It didn't work.

Now, by way of analogy, I'm in the software development field. If I write a program for a client and send it to him, and he calls me back and says it doesn't work, then it doesn't work. He will not be interested in my convoluted explanation about how it really does work. If it doesn't help him, then it doesn't work. Period. And I have to come up with a solution so it does work for him.

Any time an innocent person is convicted of a crime it is a FAILURE of the legal system. Period. End of story. Okay? The purpose of the legal system is to convict those who are guilty and exhonorate those who are accused but really innocent. For those times it doesn't do that, it's a FAILURE of the legal system to serve the public good.

Your convoluted defense of the legal system does not change the fact that an innocent woman had her life ruined by that same legal system. The proof is in the pudding.

As for what I would have advised her, go to discovery and force the lab to do the test. Or if they can't do it in 180 days move to dismiss for denial of right to a speedy trial. Once they get the results, if they are negative, she's free. If not, then she has a clean record and can obtain leniency from the court for a first time offense, likely given the tiny amount of suspected cocaine. It is very unlikely she'd not get leniency and a reduced / suspended sentence given there's no evidence she was selling cocaine. Hell, she might have ended up with the same prison sentence, worst case, or time served if they didn't let her out on bail until trial.

Pinguinite  posted on  2016-07-15   0:54:53 ET  Reply   Trace   Private Reply  


#14. To: Pinguinite (#13)

It appears you are living in a dream world. I don't know anyone who does not know that pleading guilty to a cocaine drug felony has consequences.

the legal system FAILED. It FAILED. With a capital F. Okay. It didn't work.

With the problem remaining that you did not say the legal system failed, you said the defense counsel didn't do his job.

Your convoluted defense of the legal system does not change the fact that an innocent woman had her life ruined by that same legal system.

No, I defended the defense counsel from a baseless charge. I made no defense of the legal system. I did offer some of the realities of it.

As for what I would have advised her, go to discovery and force the lab to do the test. Or if they can't do it in 180 days move to dismiss for denial of right to a speedy trial. Once they get the results, if they are negative, she's free. If not, then she has a clean record and can obtain leniency from the court for a first time offense, likely given the tiny amount of suspected cocaine.

If you are going to dream, dream big.

It was Texas.

https://www.smu.edu/StudentAffairs/HealthCenter/Counseling/DrugFreeCampus/TXStateLawPenalties#details

A state jail felony is punishable by confinement in a state jail for any term of not more than 2 years or less than 180 days and by a fine not to exceed $10,000.

She was charged with a state jail felony. A trial conviction carries a 180-day minimum.

https://www.versustexas.com/criminal/realities-speedy-trial/

Realities of the Right to a Speedy Trial

By Benson Varghese
Posted November 10, 2015 In Criminal

[excerpt]

A “Presumptively Prejudicial” Delay

In assessing whether a defendant has been deprived of his speedy trial right, there must first exist a delay that is “presumptively prejudicial.” There is no set time frame that triggers the presumption, but a delay approaching one year is sufficient to trigger a speedy trial inquiry. Orand v. State, 254 S.W.3d 560 (Tex. App. Fort Worth 2008). Once it has been determined there is a presumptively prejudicial delay, the court will use the Barker Balancing Test to assess whether the defendant was deprived of his speedy trial right, and thus entitled to a dismissal.

At the link is a list of 14 Texas cases that denied claims of speedy trial violations for delays from 13 months to 8 years. It lists 5 Texas cases that upheld claims of speedy trial violations for delays from 2 years 3 months to 6 years. If you just want to set a Texas record, you should shoot for 2 years.

The only remedy for a finding of a violation of the right to a speedy trial is a dismissal of the charges. Unless it is a state with a statute that specifies a shorter time (definitely not Texas), you should wait about eight months to a year before they will take your speedy trial motion seriously.

Inform your client what the law in Texas actually says, not what you think it ought to say. You may be 100% correct that the law should say something else. Feel free to tell your client that you disagree with the law as it is. Then tell her what she actually needs to know, and what you are required to tell her.

Turning down the 45-day offer is great if she has a firm belief that the test will come back negative. Her statements made clear that she held no such belief. Her immediate reaction was to point at the boyfriend.

Waiting for a test result that the client believes will be positive, and planning to ask the judge to waive the 180-day minimum required by law is not much of a plan. If the test came back positive, visit her often and give her pep talks.

The situation was explained to Albritton and she chose to take the 45-day jail sentence and waive any appeal. She got buyer's remorse after the test results came back.

As long as her attorney explained it to her and gave her a fair assessment under the actual laws of Texas, there is no reason to say he did not do his job. He has to work within the system he and his client are stuck with.

nolu chan  posted on  2016-07-15   3:06:58 ET  Reply   Trace   Private Reply  


#15. To: nolu chan (#14)

An innocent woman got saddled with a felony conviction.

Ergo. The system FAILED. Period. End of Story.

Pinguinite  posted on  2016-07-15   3:49:40 ET  Reply   Trace   Private Reply  


#16. To: Pinguinite (#15)

An innocent woman got saddled with a felony conviction.

Ergo. The system FAILED. Period. End of Story.

When the facts are against you, pound on the law. When the law is against you pound on the facts. When both the facts and the law are against you, pound on the lectern.

Harummph, that's all there is to be said, I don't want to talk about it anymore.

A woman voluntarily entered into a plea agreement to avoid the very real probability of a very worse result had she proceeded to trial.

You tried to blame an imaginary system failure on the defense counsel and that effort fell flat as the defense counsel has very little authority in the matter. Indeed, your fallback position is to not identify any failure in the system but to claim the woman was innocent and conclude the system failed. You fail to see that the system worked exactly as it has been designed and is intended to work. That may explain your frustration in attempting to identify the person responsible for the alleged failure. I did not just endorse the system, but I will not say it failed when it worked as designed. It is designed to impel the vast majority of defendants to waive trial and plead guilty.

Moreover, as you cannot identify the failure, you cannot offer any rational proposal for a solution. Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. Try doing away with the plea system and you will need to multiply by many times the number of judges and court facilities. Disposition of charges after plea discussions is not only an essential part of the process, but a highly desirable part for many reasons, not least being that it leads to prompt and largely final disposition of most criminal cases.

Severe minimum sentences serve the deliberate, recognized purpose to encourage plea agreements rather than risk a trial one may lose. That an innocent person may be induced to plead guilty is a recognized factor, rather like collateral damage. You may now deal with the fact that the system did not fail, it worked.

The U.S. Supreme Court found in Bordenkircher v. Hayes, 434 U.S. 357 (1978):

We have recently had occasion to observe:

"Whatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system.

Properly administered, they can benefit all concerned."

Blackledge v. Allison, 431 U. S. 63, 431 U. S. 71. The open acknowledgment of this previously clandestine practice has led this Court to recognize the importance of counsel during plea negotiations, Brady v. United States, 397 U. S. 742, 397 U. S. 758, the need for a public record indicating that a plea was knowingly and voluntarily made, Boykin v. Alabama, 395 U. S. 238, 395 U. S. 242, and the requirement that a prosecutor's plea-bargaining promise must be kept, Santobello v. New York, 404 U. S. 257, 404 U. S. 262.

[...]

Plea bargaining flows from "the mutuality of advantage" to defendants and prosecutors, each with his own reasons for wanting to avoid trial. Brady v. United States, supra at 397 U. S. 752. Defendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation. 397 U.S. at 397 U. S. 758. Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the plea may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial. See ABA Project on Standards for Criminal Justice, Pleas of Guilty § 3.1 (App.Draft 1968);

Note, Plea Bargaining and the Transformation of the Criminal Process, 90 Harv.L.Rev. 564 (1977). Cf. Brady v. United States, supra, at 397 U. S. 751; North Carolina v. Alford, 400 U. S. 25.

While confronting a defendant with the risk of more severe punishment clearly may have a "discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices [is] an inevitable" -- and permissible -- "attribute of any legitimate system which tolerates and encourages the negotiation of pleas." Chaffin v. Stynchcombe, supra, at 412 U. S. 31. It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty.

It is not disputed here that Hayes was properly chargeable under the recidivist statute, since he had, in fact, been convicted of two previous felonies. In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. Within the limits set by the legislature's constitutionally valid definition of chargeable offenses, "the conscious exercise of some selectivity in enforcement is not, in itself, a federal constitutional violation" so long as "the selection was [not] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification." Oyler v. Boles, 368 U. S. 448, 368 U. S. 456. To hold that the prosecutor's desire to induce a guilty plea is an "unjustifiable standard," which, like race or religion, may play no part in his charging decision, would contradict the very premises that underlie the concept of plea bargaining itself. Moreover, a rigid constitutional rule that would prohibit a prosecutor from acting forthrightly in his dealings with the defense could only invite unhealthy subterfuge that would drive the practice of plea bargaining back into the shadows from which it has so recently emerged. See Blackledge v. Allison, 431 U.S. at 431 U. S. 76.

There is no doubt that the breadth of discretion that our country's legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse. And broad though that discretion may be, there are undoubtedly constitutional limits upon its exercise. We hold only that the course of conduct engaged in by the prosecutor in this case, which no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution, did not violate the Due Process Clause of the Fourteenth Amendment.

See also United States v. Ruiz, 536 U.S. 622 (2002):

JUSTICE BREYER delivered the opinion of the Court.

In this case we primarily consider whether the Fifth and Sixth Amendments require federal prosecutors, before entering into a binding plea agreement with a criminal defendant, to disclose "impeachment information relating to any informants or other witnesses." App. to Pet. for Cert. 46a. We hold that the Constitution does not require that disclosure.

Re increased sentencing for those who avail themselves of their right to trial and lose, see United States v. Rodriguez, 162 F.3d 135 (1st Cir. 1998)

C. Disparate Sentencing/Prosecutorial Discretion Claim

Defendants Rosario and Famania argue that they should be resentenced because their sentences were significantly higher than those of their co-conspirators who pled guilty rather than choosing to go to trial. They claim that the disparity in sentencing constituted an impermissible burden on their Sixth Amendment right to a jury trial and violated the Due Process and Equal Protection Clauses of the Constitution.

The government indicted six defendants, charging all of them with engaging in the same conspiracy to distribute crack cocaine. The district court found this conspiracy accountable for the distribution of approximately 5,000 grams of crack cocaine over a 36-week period. At sentencing, the court held Rosario and Famania accountable for all 5,000 grams of the crack cocaine. In contrast, the district court accepted the agreement of the three defendants who had pled guilty--Carvajal, De Jess, and Villafane--which was based on responsibility only for the amount of drugs which each had personally handled. Carvajal, for example, was held accountable for 5 to 20 grams of crack cocaine. This disparity in the drug-quantity attribution led to an even more striking disparity in sentencing, which is the subject of the defendants' complaint. Carvajal was sentenced to the time he had already served, De Jess to 17 months of imprisonment, and Villafane to 60 months of imprisonment. Famania was sentenced to 235 months of imprisonment, and Rosario to 262 months of imprisonment. Rodriguez, who was also charged with engaging in a continuing criminal enterprise, was sentenced to life imprisonment.

[...]

We begin, as we must, with the government's jurisdictional objection. It is settled that "we have no appellate jurisdiction to review a sentence within the applicable sentencing guidelines range if that range was correctly determined." United States v. Panet-Collazo, 960 F.2d 256, 261 (1st Cir. 1992). The defendants' argument is focused on the argued unconstitutional effects of the practices that led to the imposition of such disparate sentences. They do not say that their sentences were improperly calculated. Instead, they claim that the pleabargaining practice of the U.S. Attorney's Office puts undue pressure on defendants, such as Rosario and Famania, to waive their right to a trial and violates Due Process and Equal Protection principles. Because there is no jurisdictional barrier to such an argument, we evaluate the defendants' argument.

[...]

The fact that those who plead generally receive more lenient treatment, or at least a government recommendation of more lenient treatment than co-defendants who go to trial, does not in and of itself constitute an unconstitutional burden on one's right to go to trial and prove its case. See Corbitt v. New Jersey, 439 U.S. 212, 219, 99 S. Ct. 492, 58 L. Ed. 2d 466 (1978) (noting that every burden on the exercise of a constitutional right is not invalid and that there is no per se rule against encouraging guilty pleas, even where those pleas promise the certainty of a lesser penalty). To be sure, the differential which resulted here exacts a high price from those who exercise their constitutional right to trial, but the price is not high enough to constitute a constitutional violation.

Severe sentences after trial are the norm. This is a serious impetus for defendants to accept plea agreements and sign away constitutional and appeal rights.

Arnold Enker, Perspectives on Plea Bargaining, within Task Force Report: The Courts, Task Force on Admnistration of Justice, The President's Commission on Law Enforcement and Administration of Justice (1971)

III. THE RISK THAT INNOCENT DEFENDANTS MAY PLEAD GUILTY

Thus far we have examined plea bargaining from the impersonal perspective of the "system." Some additional perspective can be gained by viewing the practice from the defendant's point of view. A prominent defense law­yer has put it thusly:

These plea bargains perform a useful function. We have to remember that our sentencing laws are for the most part savage, archaic, and make very little sense. The penalties they set are frequently far too tough. . . .

The negotiated plea is a way by which prosecutors can make value judgments. They can take some of the inhumanity out of the law in certain situations. . .

And, further:

If a man is guilty, and the prosecution has a good case, there is little satisfaction to the lawyer or his client in trying conclusions, and getting the maxi­mum punishment. A great deal of good can be done in the plodding everyday routine of the defense lawyer, by mitigating punishment in this manner. Anyone who has ever spent a day in a prison and . experienced, even vicariously, the indignity and suf­fering that incarceration entails realizes full well that the difference between a three-year sentence and a five-year sentence is tremendous, not only for the wrongdoer who is being punished, but for the in­nocent members of his family who love him, and who suffer humiliation and worse while he is away. This is something that the criminal lawyer can rightfully and usefully do for the "guilty" man. In this regard, the criminal lawyer is daily fulfilling a useful function in our society.

Viewed from this perspective, the negotiated plea is not solely a corrupting inducement offered defendants to waive their constitutional rights but is also a device by which defendants and their counsel can manipulate an imperfect system to mitigate its harshness and excesses. It is all too easy to assert that "there is no such thing as a beneficial sentence for an innocent defendant." There is also no such thing as a beneficial conviction for an innocent man. But innocent men may be convicted at trial as well.

The possibility that innocent defendants might be in­duced to plead guilty in order to avoid the possibility of a harsh sentence should they be convicted after trial is obviously cause for concern. Because of the emotional potential of this problem, it is easy to overstate. The truth is that we just do not know how com­mon such a situation is. Indeed, this may be the very vice of the current system of plea negotiation. Because of the invisible, negotiated, consensual nature of the handling of the case in terms which avoid exploration of those factors deemed relevant by the law, we do not really know whether there is in fact cause for concern or not. It is this very uncertainty about such serious consequences that creates uneasiness.

Still, perhaps the problem can be put in a better per­spective. In the first place, trials, too, may not always result in truthful or accurate verdicts. It is interesting to note that disposition by trial and by negotiated plea are similar in that in neither instance do we have any relatively accurate idea of the incidence of mistaken judgments. On one level, then, the significant question is not how many innocent people are induced to plead guilty but is there a significant likelihood that innocent people who would be (or have a fair chance of being) acquitted at trial might be induced to plead guilty?

Further, concern over the possibility that a negotiated plea can result in an erroneous judgment of conviction assumes a frame of reference by which the accuracy of the judgment is to be evaluated. It assumes an ob­jective truth existing in a realm of objective historical fact which it is the sole function of our process to discover. Some, but by no means all, criminal cases fit this image. For example, this is a relatively accurate description of the issues at stake in a case in which the defendant as­serts a defense of mistaken identity. If all other issues were eliminated from the case, there would still exist a world of objective historical fact in which the accused did or did not perpetrate the act at issue. And if he did not, a negotiated guilty plea would represent an errone­ous judgment. In this instance, then, the issue suggested is the comparative likelihood of such erroneous decisions as between trial and negotiation.

But not all criminal cases fit the above picture. The conventional dichotomy between adjudication and dis­position in which the adjudication process is thought of as one of fact determination tends to obscure the non-factual aspect of much of the adjudication process. Much criminal adjudication concerns the passing of value judg­ments on the accused's conduct as is obvious where neg­ligence, recklessness, reasonable apprehension of attack, use of unnecessary force, and the like are at issue. Al­though intent is thought of as a question of fact, it too can represent a judgment of degrees of fault, for ex­ample, in cases where the issue is whether the defendants entertained intent to defraud or intent to kill. In many of these cases, objective truth is more ambiguous, if it exists at all. Such truth exists only as it emerges from the fact-determining process, and accuracy in this con­text really means relative equality of results as between defendants similarly situated and relative congruence be­tween the formal verdict and our understanding of so­ciety's less formally expressed evaluation of such conduct.

The negotiated plea can, then, be an accurate process in this sense. So long as the judgment of experienced counsel as to the likely jury result is the key element en­tering into the bargain, substantial congruence is likely to result. Once we recognize that what lends rationality to the factfinding process in these instances lies not in an attempt to discover objective truth but in the devising of a process to express intelligent judgment, there is no inherent reason why plea negotiation need be regarded any the less rational or intelligent in its results.

Indeed, it may be that in some instances plea negotia­tion leads to more "intelligent" results. A jury can be left with the extreme alternatives of guilty of a crime of the highest degree or not guilty of any crime, with no room for any intermediate judgment. And this is likely to occur in just those cases where an intermediate judgment is the fairest and most "accurate" (or most congruent).

Clearly, the line between responsibility and irrespon­sibility due to insanity is not as sharp as the alternatives posed to a jury would suggest. It may be that such a dividing line exists in some world of objective reality and that the ambiguity arises from the dif­ficulties of accurate factfinding. It is more realistic, how­ever, to view responsibility as a matter of degree at best only roughly expressed in the law's categories of first and second degree murder, manslaughter, etc. The very vis­ibility of the trial process may be one factor that prevents us from offering the jury this compromise in order to preserve the symbolism of uniform rules evenly applied. The low visibility of the negotiated plea allows this com­promise which may be more rational and congruent than the result we are likely to arrive at after a trial. While the desire to protect the symbolism of legality and the concern over lay compromises may warrant limiting the jury to extreme alternative, it does not follow that to allow the defendant to choose such a compromise is an irrational or even a less rational procedure.

There is, moreover, a significant difference between conviction upon trial and by consent that merits further consideration; that relates to the role of defense counsel. Despite defense counsel's best efforts, his innocent client may be convicted at trial. But he cannot be convicted on a plea of guilty without defense counsel's participation and consent. Defendant's consent is also necessary for a guilty plea, but that provides less of an independent check on inaccurate pleas since defendant's prime interest is in minimizing unpleasant consequences. Counsel, on the other hand, as an officer of the court, has a duty to pre­serve the integrity of the process as well. When the sys­tem operates as it is supposed to, defense counsel's con­trol over the plea affords added assurance that the plea is accurate.

We are safe in assuming that the system still works less than ideally. Waiver of counsel is still common in guilty plea cases, and even when the defendant is formally rep­resented, his representation is often perfunctory. But Professor Newman also reports increased inquiry into the factual basis for guilty pleas in all three States studied. This suggests that judges accepting such pleas, if alert to the problem, can exercise greater control by refusing to accept waivers and by careful selection of assigned coun­sel, particularly in those cases in which some lingering doubt as to the defendant's guilt remains.

There is, however, another side to the participation of counsel in the guilty plea. Even counsel may see the occasional practical wisdom of pleading an innocent man guilty. Sworn to uphold the law and at the same time to serve his client's best interests, counsel may be faced with an insoluble human and professional conflict. While such a compromise may serve the defendant's interest in making the best of a bad situation, it can never serve the lawyer's interest in protecting his professional integrity and self-image. At present we have no idea of the extent of this role conflict and its consequences to the profession.

Thus far I have suggested that for those cases in which the key determinant of the plea bargain is experienced counsel's assessment of the chances of conviction, plea bargaining is not likely to impair the accu­racy of the guilt determining process. This assumption, of course, does not always prevail. Additional factors may enter into the bargain. Probably the most significant factor is the possibility that the defendant may be convicted of a crime which carries a mandatory nonsuspendible sentence. Where the sentencing judge retains complete discretion in the imposition of sentence, defense counsel is under less pressure to negotiate a plea and is under little pressure to give up a triable defense. If the defense has sufficient merit so that some doubt may linger even after convic­tion, there may be a fair chance that such doubt will be reflected in the judge's sentence. Because of the rules relating to cross-examination of a defendant, defense counsel are usually of the view that a defendant ordi­narily stands little chance of acquittal unless he has a relatively unblemished background. Where sentencing discretion prevails, such a, background is likely to result in a light sentence upon conviction. Under such cir­cumstances, a plea bargain has the effect of changing a substantial probability of leniency to a certainty, hardly a sufficient inducement for a man to plead guilty to a crime he has not committed. This becomes even more certain in the case of the defendant with an unblemished back­ground, where the conviction is probably more damaging than any sentence he is likely to receive.

The removal of sentencing discretion by the enactment of mandatory sentences alters the picture completely. Once the defendant has been convicted, lingering doubts as to guilt and the defendant's exemplary prior life can no longer be considered. Under such circumstances, the defendant may be forced to give up a fair chance of acquittal by pleading guilty to a different, usually a lesser, charge upon which the judge can impose a more lenient sentence. The impact of legislatively mandated sen­tences on plea negotiations was suggested some time ago by prominent writers. Professor Newman's book re­ports that there was a far greater incidence of bargaining and charge reduction in Michigan, which has legislatively mandated sentences for certain crimes, and in Kansas, whose statutes do not permit the sentencing judge to im­pose probation as an alternative to a prison term for some crimes, than in Wisconsin, where the legislative sentenc­ing structure leaves judges considerably greater dis­cretion.

An additional extraneous factor influencing counsel's judgment was suggested above, namely, the fear of con­viction of a crime carrying a label suggesting abnormal­ity or perversion, and even the fear of going to trial in such a case with its ensuing publicity. Mandatory mini­mum sentences can be eliminated; adverse publicity of this sort probably cannot. It is difficult to say with con­fidence that an innocent defendant's plea of guilty ti disorderly conduct in such a case is never in the defend­ant's best interest if he is innocent. It is presumably not in the best interests of the criminal process, but I would hesitate to insist to a client that he owes the system a duty to defend himself and besmirch his family and reputation. In any event, we can encourage greater judicial sensitivity to this problem and closer judicial supervision of the plea in such cases. New Rule 11 of the Federal Rules of Criminal Procedure and the prac­tice in some courts of holding postpiea hearings or in­vestigations to develop the facts relating to the offense provide methods for such control.

The discussion in this section has not been designed to suggest that there is no reason for concern over the possi­bility that innocent persons might be induced to plead guilty by a system of plea negotiations. Rather, my pur­pose has been to place the problem in what appears to me to be its proper perspective, to demonstrate that there is nothing inherent in such a system that would increase the risks of inaccuracy beyond those present in adjudication by trial, to suggest that plea negotiation has possibilities for more intelligent and more humane disposition of many cases than are available in trial disposition, and to indi­cate that the problem is not beyond effective judicial control.

And what of Albritton's waiver of her right to appeal?

The Federal Rules bless this type of waiver.

https://www.law.cornell.edu/rules/frcrmp/rule_11

Rule 11. Pleas

[...]

(b) Considering and Accepting a Guilty or Nolo Contendere Plea.

(1) Advising and Questioning the Defendant. Before the court accepts a plea of guilty or nolo contendere, the defendant may be placed under oath, and the court must address the defendant personally in open court. During this address, the court must inform the defendant of, and determine that the defendant understands, the following:

[...]

(N) the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence;

Texas bakes in into plea agreements.

http://www.texasappellateprocedurerules.com/section2.html

25.2. Criminal Cases

(a) Rights to Appeal.

(1) Of the State. The State is entitled to appeal a court's order in a criminal case as provided by Code of Criminal Procedure article 44.01

(2) Of the Defendant. A defendant in a criminal case has the right of appeal under Code of Criminal Procedure article 44.02 and these rules. The trial court shall enter a certification of the defendant's right of appeal each time it enters a judgment of guilt or other appealable order. In a plea bargain case – that is, a case in which a defendant's plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant – a defendant may appeal only:

(A) those matters that were raised by a written motion filed and ruled on before trial, or

(B) after getting the trial court's permission to appeal.

In Albritton's case, she must get permission from the trial court in order to file an appeal.

nolu chan  posted on  2016-07-26   15:50:23 ET  Reply   Trace   Private Reply  


#17. To: nolu chan (#16)

When the facts are against you, pound on the law. When the law is against you pound on the facts. When both the facts and the law are against you, pound on the lectern.

How I remember this so well.

In Albritton's case, she must get permission from the trial court in order to file an appeal.

In the federal courts only Final Orders are appealable. In cases where such a case is tried in "piece-meal", what usually happens is some parties are dismissed in the case leaving others still at issue. When the injured party tries to appeal from a matter that is not final, the appellate courts will tell them they have no jurisdiction to hear the appeal as the Notice of Appeal from the party appealing from the district court decision was an interlocutary order or judgment and is not appealable.

goldilucky  posted on  2016-07-26   17:00:50 ET  Reply   Trace   Private Reply  


#18. To: nolu chan (#16)

When the facts are against you, pound on the law. When the law is against you pound on the facts. When both the facts and the law are against you, pound on the lectern.

I'll pound on this fact and this fact is very clear.

She was innocent of the crime she was accused of committing, and for which she received a felony conviction.

You can pour out all kinds of arguments about how it wasn't the system's fault. But it won't change the fact that the system failed to dispense justice in this case. I can understand that such a bitter pill is hard for you to swallow as you seem to regard the legal system with something akin to religious piety. But the cold shower lesson is this: The system failed this woman. Period.

Pinguinite  posted on  2016-07-27   3:23:16 ET  Reply   Trace   Private Reply  


#19. To: Pinguinite, goldilucky (#18)

I can understand that such a bitter pill is hard for you to swallow as you seem to regard the legal system with something akin to religious piety.

You would probably be able to respond more intelligently if you read what you are responding to. As I said,

You tried to blame an imaginary system failure on the defense counsel and that effort fell flat as the defense counsel has very little authority in the matter. Indeed, your fallback position is to not identify any failure in the system but to claim the woman was innocent and conclude the system failed. You fail to see that the system worked exactly as it has been designed and is intended to work. That may explain your frustration in attempting to identify the person responsible for the alleged failure. I did not just endorse the system, but I will not say it failed when it worked as designed. It is designed to impel the vast majority of defendants to waive trial and plead guilty.

It is your profound lack of knowledge of the system, and your ostrich-like living in denial, that leads you to make damfool claims that you would have advised Albritton to go to trial, and if convicted, you would expect the judge to go easy on her and just let her go. It even led you to falsely claim that the defense attorney must have failed to do his job, but when confronted, you could not support your baseless contention and now engage in your inane and spurious change of subject further demonstrating only that you do not understand how the system is designed to work, and how it does work.

I'll pound on this fact and this fact is very clear.

She was innocent of the crime she was accused of committing, and for which she received a felony conviction.

You seem to forget that Albritton pleaded guilty.

Your misbegotten attempt to blame the defense counsel only indicated that you did not understand the system. Your ridiculous claim of a system failure reveals that you have no read and learned.

Only a deaf person has not heard prosecutors cal for a level playing field. Now they have more than a level playing field—for defendant and defense counsel it is an uphill slog with advantage to the prosecution.

I did not pull statistics out of my ass. I pulled them out of the opinion of the U.S. Supreme Court in Missouri v. Frye, No. 10-444 (21 Mar 2012), 566 U.S. ___ (2012), slip op at 7.

Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. See Dept. of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics Online, Table 5.22.2009, http://www.albany.edu/sourcebook/pdf/t5222009.pdf (all Internet materials as visited Mar. 1, 2012, and available in Clerk of Court’s case file); Dept. of Justice, Bureau of Justice Statistics, S. Rosenmerkel, M. Durose, & D. Farole, Felony Sentences in State Courts, 2006-Statistical Tables, p. 1 (NCJ226846, rev. Nov. 2010), http://bjs.ojp.usdoj.gov/content/pub/pdf/fssc06st.pdf; Padilla, supra, at ___ (slip op., at 15) (recognizing pleas account for nearly 95% of all criminal convictions).

Ibid.

Because ours “is for the most part a system of pleas, not a system of trials,” Lafler, post, at 11, it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. “To a large extent . . . horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.” Scott & Stuntz, Plea Bargaining as Contract, 101 Yale L. J. 1909, 1912 (1992). See also Barkow, Separation of Powers and the Criminal Law, 58 Stan. L. Rev. 989, 1034 (2006) (“[Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes. This often results in individuals who accept a plea bargain receiving shorter sentences than other individuals who are less morally culpable but take a chance and go to trial” (footnote omitted)). In to­day’s criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.

95% of convictions result from a guilty plea. If that fell to just 90%, you would have to double the courts, judges, juries, lawyers, and others.

Quite obviously, there is a significant government interest in keeping 95% of convictions resulting from guilty pleas. Such statistics can only be maintained by the demonstrated probability of far more severe outcomes resulting from trial convictions.

There are about 2 million people incarcerated. If 5% resulted from trial conviction, that would be 100,000 processed via trial to conviction. Without guilty pleas, there would be a backlog of 1,900,000. Inducement to plead guilty leads to a system that works like a cattle call.

https://www.propublica.org/article/common-roadside-drug-test-routinely-produces-false-positives

The officers allowed her to make a collect call on the coinless cellblock pay phone. She had a strained relationship with her father and with her son’s father as well; instead she dialed Doug Franklin, an old friend who once dated her sister. No one answered. Near dawn the next morning, guards walked Albritton through a tunnel to the Harris County criminal-justice tower’s basement, where they deposited her in a closet-size holding room with another woman, who told Albritton that she had murdered someone. Albritton prayed someone would explain what would happen next, tell her son she was alive and help her sort out the mess. She had barely slept and still hadn’t eaten anything. She heard her name called and stepped forward to the reinforced window. A tall man with thinning hair and wire-rim glasses approached and introduced himself as Dan Richardson, her court-appointed defense attorney.

Of Dan Richardson, her court-appointed attorney, Albritton said: “You could tell he was very rushed, busy.”

Richardson told Albritton that she was going to be charged with possession of a controlled substance, crack cocaine, at an arraignment that morning. Albritton recalls him explaining that this was a felony, and the maximum penalty was two years in state prison. She doesn’t remember him asking her what actually happened, or if she believed she was innocent. Instead, she recalls, he said that the prosecutor had already offered a deal for much less than two years. If she pleaded guilty, she would receive a 45-day sentence in the county jail, and most likely serve only half that.

Albritton told Richardson that the police were mistaken; she was innocent. But Richardson, she says, was unswayed. The police had found crack in her car. The test proved it. She could spend a few weeks in jail or two years in prison. In despair, Albritton agreed to the deal.

Albritton was escorted to a dark wood-paneled courtroom. A guilty plea requires the defendant to make a series of statements that serve as a confession and to waive multiple constitutional rights. The judge, Vanessa Velasquez, walked her through the recitation, Albritton recalls, but never asked why she couldn’t stop crying long enough to speak in sentences. She had managed to say the one word that mattered: “guilty.”

Ms. Albritton joined the cattle call and pleaded guilty. She entertained no evidence faith that she would be found innocent. They dangled 45-days at her and she jumped at it. That was not a failure of the system, as you like to see it. That is the system. Her case was disposed of quick time with her consent. This is not some failure of the system; it is how the system works in 95% of the cases. Wake up and open your eyes and mind to the real world.

Oh wait. Never mind. Ms. Albritton was not alone when it came time for a professedly innocent defendant to take a plea.

From September 14, 2004

Some five hours after this all began, I was brought out of the cell to go see the 'commissioner'. I was charged with five counts. Three were traffic infractions: Driving without headlights on, Driving without a license, and Refusal to provide registration on demand. The fourth was a criminal misdemeanor: Obstruction of Justice. The fifth was a so-called 'common law' offense: Refusal to obey a reasonable/lawful order.

The commissioner noted that I was actually already in their database as having a suspended license for nonpayment of the traffic fine from 1999. She informed me that the state may amend the charge of driving without a license, but with reasonable time for me to prepare. Cool. That made the charge of driving without a license defective, though it also meant that I needed to keep this incident off my LWAN (Life Without a Number) emailing list until after the trial.

I did not expect the criminal charges. The obstruction charge was criminal and carried a max 60 day penalty. The reasonable/lawful order charge, as a 'common law' offense carried no max penalty defined by statute, meaning it was merely up to the judge or the judicial collective to define what was reasonable.

From October 1, 2004

The charges were read and I was told I had a right to an attorney. I waived it. I was asked to enter a plea. I said not guilty. I was told I had a right to a jury trial due to the common law charge which carried no statutory penalty limitation. In Maryland, any charge carrying a penalty greater than 6 months causes the court to recognize the right to a jury trial, and with common law offenses, the judge told me a 20 year penalty was not held to be unreasonable in past cases. I was therefore entitled ot a jury trial. I was confident, perhaps more confident a judge would recognize the legal line I stood behind more that lay people so I waived the jury trial. The judge asked the prosecutor how long he thought my trial would take. He said about an hour, and it was then that I learned that four of the police officers there were waiting all that afternoon just to testify against me. Four.

They took four officers off the street, away from whatever it is they normally do for an entire afternoon just because of me. Apparently, not giving your name at a traffic stop is taken extremely seriously in these parts. I am bad, bad news.

The judge didn't want to hold up the remaining half dozen people who's business probably wouldn't take long, so I was told to take my seat. And my case was held for last.

I planed to argue my case on the facts alone. In my mind I figured I had a 50/50 chance of winning the most serious criminal charges. The judge, coincidentally, was the same judge I saw 5 years prior on regular traffic charges. A friend of mine won a 'no seatbelt' case with this judge when the citing police officer got just a little lazy giving his account of events. I felt I could predict how this judge would respond, and I could possibly win.

Finally it was time. By now it was about 4:30 PM, which is the closing time for the courthouse. The room was about empty except for those involved with my case and a friend who came to support me. I was called back up, but this time the prosecutor told the judge that he hadn't yet spoken with me because he couldn't get to everyone before formal activities began and he offered me a plea bargin. If I plead guilty to the refusal to obey charge -- the common law offense -- and the driving without a license charge, he'd not prosecute the remaining charges and ask the judge for a 'Probation Before Judgment'.

Probation Before Judgment, or PBJ, is where the judge offers the accused the chance to have his/her record free of any criminal charges. In order to qualify for that limited time offer, the accused has to waive the right to appeal and in the case of criminal matters (as opposed to traffic), usually some probation term during which you gotta stay out of trouble. Failure to satisfy the terms of probation means you get the criminal record anyway.

The prosecutor told me he couldn't guarantee the judge would grant PBJ, only that he'd ask for it, and at that point the judge said 'I'll bind myself' to giving me the PBJ if I accepted that deal.

A lot of things ran through my mind in that moment.

* If I really was going to expatriate at some point, having no criminal record was certainly a plus. Countries generally take a dim view of aliens who have criminal records. Or they perhaps should.

* I am not guilty of these charges.

* I had already entertained the idea of getting a MD driver license, as it was possible in Maryland without an SSN. PBJ means no points, whereas and the penalty for no DL in Maryland is 12 points, which is revocation. (Never mind I don't have one to revoke. They'd figure out a way to do that). Of course I'll have to drive regardless just to put food on the table, and driving revoked, according to this state's rules is up to a 1 year in jail. If I took the PBJ I could avoid the points actually get a DL.

* 'Why am I doing this?'

* It's late in the day and in extending this PBJ promise to me on a silver platter, it seems this judge wants to go home. Would he appreciate my keeping him here late when he's made such an offer, or might my proceeding to trial irritate him and serve to my disfavor?

* I thought of my web site where I knew I would be documenting all of this. With that, it's not like I'd not get to give my side of the story. I would, and all of this would come to light. Taking the PBJ however, is nothing to boast about.

* If I proceed, I've got a 50/50 chance of winning, but I'm being handed a sure 'win' of sorts -- in the form of no criminal record -- on a silver platter.

At that moment the expatriation argument seemed to weigh heaviest of all things. This whole 'justice' system is a joke and I had the opportunity to make it all go away.

I looked at the judge and in what might be my most infamous moment, said 'I'll take it'. In that instant, I gave up on my case, gave up on the system, and quite possibly, I gave up on America. In my conscience, I was innocent of any wrongdoing, guilty of no crime, but it came down to this. I could have won, but I chose instead to put my own self interests first, and chose not to fight.

What followed was a series of questions from the judge ensuring everything was above board -- standard for pleas, like if I was free of drug impairment. There were two questions that stuck in my mind: 'Has anyone offered you any promises in exchange for your pleading guilty?'

'Well, um.... yeah. You did. You promised me PBJ if I plead guilty.' I didn't say that, of course. That's not how the game is played. I would later realize that the judge probably broke protocol in promising me the PBJ. But it was time to give the lie. The answer that the system expected. Besides, it's not like I was under oath. Never in that room did I take any oath to tell the truth. 'No'.

Soon after: 'Are you pleading guilty because you actually believe you're guilty?'

I had a flashback to when I was in a Baltimore courtroom supporting a friend charged with practicing dentistry without a license (his was not renewed by the system solely for lack of an SSN). I witnessed some other defendant pleading guilty to some drug charge and the judge (I recall his last name was 'Nance') asked him that same question. Taken back, the kid of some 20 years old shook his head showing he did not actually believe he was guilty. He was apparently only pleading guilty as a matter of expediency, not because his conscience was actually troubling him. Just like me.

With a slam of a gavel Nance bellowed out 'Let the trial begin'. That kid's attorney put his arm around the kid's shoulders and whispered to him for a couple minutes. When he was done, the judge repeated the question and the kid then answered yes, he admitted he really was guilty of the charge. Nance humiliated him right then and there about how he was not going to put up with nonsense. Judge Nance was an arrogant expletive who did not belong on that bench.

I think the people who came up with this plea bargin idea, whoever they were, were concerned about the possibility of innocent people being persuaded to plea guilty. They must have figured a good way to keep that from happening was to ask all defendants these questions. That way, if anyone ever suggested the system was snagging innocent people, they could just point to the transcript and say 'See, he admitted he was guilty so the system works just fine'. If that's the idea, it is a complete farce.

Now it was my turn. Of course I believed I was innocent. The 'correct' answer, however -- the one they want to hear -- is 'yes'. Again, I took no oath in that courtroom. The expectation was to play the game. Am I pleading guilty because I believe I'm guilty? With a shrug, I replied 'With this agreement, I guess I am'. Of course, that was a most ridiculous answer as no one can agree to believe anything, and I no more believed I was guilty of those two charges than the police officer believed I was not guilty of the other three that were dropped. But my answer was apparently good enough for government work and the judge moved on.

I was told that I was also giving up the right to appeal. Perhaps that was how the system views things, but the court of public opinion hears all appeals. Always. And that's something with which I must now be content.

So, it was over and no trial ever took place. My case was never heard by the judicial system. Whether that judge would have ruled in my favor I will likely never know for as long as I live.

Let me explain something.

I think the people who came up with this plea bargin idea, whoever they were, were concerned about the possibility of innocent people being persuaded to plea guilty. They must have figured a good way to keep that from happening was to ask all defendants these questions. That way, if anyone ever suggested the system was snagging innocent people, they could just point to the transcript and say 'See, he admitted he was guilty so the system works just fine'. If that's the idea, it is a complete farce.

The reason the defendant must allocute and answer those questions is so that the defendant cannot later make a plausible claim of being so dumb, stupid, or ignorant that he or she did not understand what he or she was doing. The defendant knows he or she swore to having done the deed, he or she stated they were guilty, and said their admission was voluntary, etc. This is not done because the system has some heartwarming concern for the defendant possibly being innocent, it has a concern for the defendant having grounds for appeal because of some claimed rights infringement. The defendant does not get the deal without acknowledging that they have been informed of and provided their rights. The system figured out a good way for the defendant to document that he or she had been informed and provided their rights.

In return for some peanut butter and jelly (PBJ), the previously defiant defendant said whatever they asked him to say. And the previously defiant defendant thought damn, a PBJ just sounds so much better than the alternative. This pro se defendant did not appear to have blamed his defense lawyer for incompetent assistance of counsel. He does not blame this incompetent legal advice for a proessedly innocent defendant pleading guilty.

As for the people who came up with the system of plea bargaining, it appears to have existed in this country for over two centuries.

People v. Selikoff, 35 N.Y.2d 227, 232-33 (N.Y. 1974)

Throughout history the punishment to be imposed upon wrongdoers has been subject to negotiation (see Comment, The Plea Bargain in Historical Perspective, 23 Buffalo L. Rev. 499, 500-501). Plea negotiation, in some form, has existed in this country since at least 1804 (see p. 512). Even in England, where there are no public prosecutors, no inflexible sentencing standards, and considerably less pressure on the trial courts, a limited form of plea negotiation seems to be developing (compare Cooper, Plea Bargaining: A Comparative Analysis, 5 N.Y.U. Journal of Int. Law Politics 427, 435; Thomas, Plea Bargaining and the Turner Case, 1970 Crim. L. Rev. [Eng.] 559, 561-565 with Davis, Sentences For Sale: A New Look at Plea Bargaining in England America, 1971 Crim. L. Rev. [Eng.] 150, 223, 225). Moreover, convictions upon guilty pleas, pleas probably to lesser crimes, have been high since 1839 both in rural, where there is little trial court congestion, and in urban areas, where there is much congestion (Nineteenth Annual Report of N.Y. Judicial Conference, 1974, A-97-A-99, A-129; Moley, The Vanishing Jury, 2 So. Calif. L. Rev. 96, 107, 109). History and perspective suggest, then, that plea negotiation is not caused solely, or even largely, by overcrowded dockets. This is not to say, however, that plea negotiation is not acutely essential to relieve court calendar congestion, as indeed it is (U.S. President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society, 135 [1967]).

In budget-starved urban criminal courts, the negotiated plea literally staves off collapse of the law enforcement system, not just as to the courts but also to local detention facilities.

nolu chan  posted on  2016-07-28   0:16:41 ET  Reply   Trace   Private Reply  


#20. To: nolu chan (#19)

You would probably be able to respond more intelligently if you read what you are responding to.

And you might have people like me read your entire responses if it did not take a half hour to do so.

You tried to blame an imaginary system failure on the defense counsel and that effort fell flat as the defense counsel has very little authority in the matter.

Number 1) It was not an "imaginary system failure". It was a very REAL failure, because an innocent person got saddled with a felony conviction. As I've stated many times but which have your head too stuck in legal morass to understand is that the purpose of the legal system is to punish the guilty without harming the innocent. Apparently you just do not get that, can not understand that very simple, basic principle.

Number 2) The whole point of having legal council is to have an advocate that understands the legal system and will do there best to act and advise in the best interest of the accused. It does not appear that the 2nd part of this was exercised by the attorney, and from your responses, it seems you don't even agree that this 2nd purpose exists. As I stated, if all this woman needed was a means of communicating with the prosecuting attorney about her options, she only needed to speak the same language.

I am of the opinion that these court appointed attorneys do NOT care about the many defendants they supposedly serve. Why would they? It's not like they are paying customers. These lawyers are probably a few years out of law school, bored to tears with the people they are told they have to represent, and certainly many or most of the ones they represent truly are guilty. Of course that would be the statistical truth. But it's also true that it's as statistical impossibility for them not to have innocent people commonly assigned to them.

That's real life. That is the human element part of these court appointed attorneys that compromise the whole idea of having court appointed attorneys. So yes, based on what I've read of this case, the court appointed attorney failed to give adequate representation to this woman. On the other hand, is it his fault for not caring about his clients if he's simply has no vested reason to care about them? Maybe not.

Indeed, your fallback position is to not identify any failure in the system but to claim the woman was innocent

No claim about it. She was innocent. That's a fact as the evidence was conclusively shown to not be any illegal drug.

and conclude the system failed. You fail to see that the system worked exactly as it has been designed and is intended to work.

The system did fail in this case. How it is you see it working well when an innocent woman ended up with criminal conviction demonstrates to me exactly WHY it fails, and it's because of this exact mindset which is probably shared by the vast majority of buffoons that make up the legal system. You are too blind to see the big picture.

That may explain your frustration in attempting to identify the person responsible for the alleged failure.

Why do you insist I would only only find fault with single people?

I did not just endorse the system, but I will not say it failed when it worked as designed. It is designed to impel the vast majority of defendants to waive trial and plead guilty.

If that is how it's designed, then that is a PROBLEM. You don't get that? I would say plea bargaining should be outlawed, exactly because it perverts justice.

It is your profound lack of knowledge of the system, and your ostrich-like living in denial, that leads you to make damfool claims that you would have advised Albritton to go to trial, and if convicted, you would expect the judge to go easy on her and just let her go.

If anyone had advised that to Albritton and she had taken it, she would have been acquitted. Or more likely, the charges would have been dropped for complete lack of evidence. That you seem to think it's a good idea for people to be coerced into pleading guilty before there is even any confirmed evidence against them is .... I'm at a loss for words, Nolu. You are just really empty in the head, I guess.

It even led you to falsely claim that the defense attorney must have failed to do his job, but when confronted, you could not support your baseless contention and now engage in your inane and spurious change of subject further demonstrating only that you do not understand how the system is designed to work, and how it does work.

Perhaps my comments on this post clarify my position about both the attorney and the system.

You seem to forget that Albritton pleaded guilty.

Let me spell it out. She pleaded guilty. Let me spell this out too. She pleaded guilty to a crime she did not commit. DO YOU GET THAT?? You don't seem to acknowledge that at all.

I'll skip the citations you made from your holy book.

95% of convictions result from a guilty plea. If that fell to just 90%, you would have to double the courts, judges, juries, lawyers, and others.

Oohhhhhhh no you wouldn't. That's funny. That's really, really funny, Nolu. The USA -- aka the "land of the free" -- has the highest incarceration rate of any country on the planet. Remember that point. Now let's apply some real world common sense to the situation.

Now, what happens when you make the court system prosecute all cases and do away with plea bargaining, given that the court systems are already so overwhelmed with cases? Budgets are tight now so....

First thing that happens is prosecutors start dropping cases that are least important. They only prosecute the worst crimes. Petty stuff involving no victims, much like the woman in the above case, don't go to trial at all. Prosecutors see a single tiny questionable crumb and send her home. Police get the message as well, to only arrest and charge people who are truly a problem. Then the record high incarceration rate of the USA starts to drop.

Or maybe society as a whole see prosecutors letting too many people go, maybe some that are a real problem for society. In that case, society has to up the budget to prosecute. But at least the prison population has dropped off so there's some money savings from that. And then when people like Albritton don't have needless and unjust felony convictions on their record, they earn more money and pay more in taxes, so the economy is better off as well.

Ms. Albritton joined the cattle call and pleaded guilty. She entertained no evidence faith that she would be found innocent. They dangled 45-days at her and she jumped at it. That was not a failure of the system, as you like to see it. That is the system.

You don't understand that she was innocent. A first grader could grasp this concept. But it is somehow beyond your intellect. You don't understand that she agreed to the plea under duress and under kidnapping conditions. You don't understand that pleas are never supposed to be made in exchange for any reward or promise, yet a promise of a reduced sentence is PRECISELY what is dangled like a carrot as an incentive for not troubling the system with accommodating her with her silly right to a trial. That's a right which no one can rightly be punished for exercising, as all rights are. The system FAILED.

And now I notice your knack for digging up stuff is pretty impressive. Or not. When people freely publish things, copying & pasting is pretty easy.

I'm an honest guy Nolu. I count that a virtue, and I don't apologize for it. No one is perfect. Not you, not me. Not anyone. Life is about learning and doing the best one can to do the right thing. I do not answer to you or anyone else here about decisions I make in my own life. I answer to my own conscience alone.

Pinguinite  posted on  2016-07-28   1:42:51 ET  Reply   Trace   Private Reply  


#21. To: Pinguinite (#20)

Ms. Albritton joined the cattle call and pleaded guilty. She entertained no evidence faith that she would be found innocent. They dangled 45-days at her and she jumped at it. That was not a failure of the system, as you like to see it. That is the system.

You don't understand that she was innocent. A first grader could grasp this concept. But it is somehow beyond your intellect.

I understand perfectly well that at the time Albritton pleaded guilty, her chances of getting acquitted were about as good as yours when you absolutely jumped at a plea bargain. So stop the bullshit. Whether or not to take a plea deal must be judged at the time the offer is made, not under different circumstances that may later arise.

The very late testing on the Albritton evidence did not and could not prove innocence. The absence of evidence is neither proof of innocence nor guilt. Even a court acquittal is not proof of innocence.

You wrote series of self-serving, pie in the sky articles:

(1) Traffic Stop, Arrest, May 17, 2004 (September 14, 2004)

(2) Strategy, Preparation ad Vales (Septeber 19, 2004)

(3) The Trial (October 1, 2004)

(4) The Trial Aftermath (Regrets?) (November 11, 2004)

As you stated in episode 3, "A lot of things ran through my mind in that moment. ... * I am not guilty of these charges."

And after your recitation of things that ran through your mind, came, "I looked at the judge and in what might be my most infamous moment, said 'I'll take it.'"

Where did the system fail that time? You acted as your own lawyer. You made the decision. Did you fail the system as the defendant or as your own lawyer?

You had a simple traffic stop for not having your headlights on. You were the self-professed man living Life Without a Number [LWAN]. Your LWAN crap led to a second charge of driving without a license which turned out to actually be an expired license. In addition, there was the refusal to provide registration on demand, obstruction of justice, and refusal to obey a reasonable/lawful order. To simplify it, you had a routine stop for not using headlights and amplified it with four more charges for being a pain in the ass.

As for Life Without A Number [LWAN], in episode 4, after you got your mind right, you applied to a drivers license and gave the following account:

Clerk: What's your social security number?

Me: I don't have one.

He pokes some keys on his computer and asks some more demographic information.

Clerk: I'm showing that you have one. Did you know that?

Me: Is your computer hooked up to the Social Security Administration?

Clerk: Yes it is, and I'm showing you have an SSN.

Now the application for a driver license in Pennsylvania obligated the applicant to permit PennDOT to inquire of the SSA on behalf of the applicant, but the Maryland application had no such preprinted authorization paragraph. Was this guy's tying into the SSA database to make inquiries of me without my permission a violation of federal law?

Me: I don't have an SSN. It's against my religious beliefs.

Clerk: Well, it's doesn't get printed on the driver license.

His words were spoken as though he understood my sentiments better than I did. He then did something that stunned me. Without any further questions, he picked up his pen, went to the SSN box, crossed out my printed word 'None' and wrote in a nine digit number. This stunned me because what this guy from the Westminster office of Maryland's Motor Vehicle Administration did was modify a document signed true and correct under penalty of perjury. He doctored a sworn document. That has to be a crime, and a serious one. I've not looked it up, but what he did *must* be a crime.

Now, what the hell and I going to do about this?

To make a long story short, you saw the light and took the license. Apparently, Life Without A Number [LWAN] is making believe you do not have a Social Security number.

As I've stated many times but which have your head too stuck in legal morass to understand is that the purpose of the legal system is to punish the guilty without harming the innocent. Apparently you just do not get that, can not understand that very simple, basic principle.

So tell me, what made you, a professedly innocent man, plead guilty? Was it a failure in the system? What system prevents a person from pleading guilty?

Now, what happens when you make the court system prosecute all cases and do away with plea bargaining, given that the court systems are already so overwhelmed with cases? Budgets are tight now so....

First thing that happens is prosecutors start dropping cases that are least important. They only prosecute the worst crimes. Petty stuff involving no victims, much like the woman in the above case, don't go to trial at all. Prosecutors see a single tiny questionable crumb and send her home. Police get the message as well, to only arrest and charge people who are truly a problem. Then the record high incarceration rate of the USA starts to drop.

This works well in your dreamworld, especially in the world of mandatory mimimum sentences and in a Federal system without parole. It begins with a single step... one person refuses to consider any plea bargain... and he is joined by another... and another... and pretty soon it is a movement. Just think, you could have taken the first step.

I had this debate with an idiot about 15 years ago regarding the military justice system. If all service members just refused Article 15 administrative punishment, and demanded Court-Martial, the system would fall apart. Somehow, the movement has never taken hold. It seems few want to go first as there will be draconian sentences. Paging Eddie Slovik.

The record high incarceration will not drop while it remains a money making business.

So you now feel they should have forced you to stand trial. When given the choice in real life, you grabbed a plea agreement at first offer, and you were your own lawyer. You did not even attempt to negotiate for a better deal — because you did not believe all your proclamations of innocence.

You have told me that, as Albritton's attorney, you would have advised her to refuse the 21-day offer. Acting as your own advocate, representing yourself, when faced with far less jeopardy, you snatched up a deal as fast as you could. Albritton, faced with two years minimum, in prison, took a deal for 21 days in jail.

Why is it a system failure when Albritton takes a deal in her self-interest, but it is not when you make a conscious and knowing decision to take a plea in far less serious circumstances of your own making?

You don't understand that she agreed to the plea under duress and under kidnapping conditions.

You fully understand that you are full of shit, but make believe anyway. Your absurd point has been weighed, measured, and found wanting. It has zero legal merit and you, of all people, know that. When you were offered a plea bargain, you jumped at it. You swore you were not coerced, it was your choice. You were not about to be kidnapped.

Number 2) The whole point of having legal council is to have an advocate that understands the legal system and will do there best to act and advise in the best interest of the accused. It does not appear that the 2nd part of this was exercised by the attorney, and from your responses, it seems you don't even agree that this 2nd purpose exists. As I stated, if all this woman needed was a means of communicating with the prosecuting attorney about her options, she only needed to speak the same language.

I am of the opinion that these court appointed attorneys do NOT care about the many defendants they supposedly serve. Why would they? It's not like they are paying customers. These lawyers are probably a few years out of law school, bored to tears with the people they are told they have to represent, and certainly many or most of the ones they represent truly are guilty. Of course that would be the statistical truth. But it's also true that it's as statistical impossibility for them not to have innocent people commonly assigned to them.

That's real life. That is the human element part of these court appointed attorneys that compromise the whole idea of having court appointed attorneys. So yes, based on what I've read of this case, the court appointed attorney failed to give adequate representation to this woman. On the other hand, is it his fault for not caring about his clients if he's simply has no vested reason to care about them? Maybe not.

Albritton was told of her options, in English.

Well, hot diggity damn. In your own case, you spoke English, but every time you opened your mouth you seemed to create another problem for yourself. You chose to represent yourself, so there was no problem of a legal counsel who did not have your best interest at heart. You communicated as you pleased and the system communicated directly to you.

Another source who has an excellent reputation for really putting a cog in the gears suggested that I demand my right to 'assistance of counsel' in court. That's not a lawyer. That's not an attorney. That's not 'counsel'. That's 'assistance of counsel', which is the actual wording of our rights in the 6th Amendment. Assistance is different from 'counsel' in that with 'assistance', you are not represented. You manage your own case, but demand the assistance of one educated in protecting your constitutionally protected rights and court procedure with whom you may confer as needed. With any charge that might generate jail time, if you do not appear with an attorney, judges will ask you if you want to waive your right to an attorney. Standard court rules in jailable offenses is that trial cannot proceed until either you have an attorney or you waive the right to an attorney, or in this case, 'assistance of counsel'. This should, in theory at least, jam the wheels of the courts ability to proceed because no attorney will ever sign an agreement to serve in that capacity.

I was sent a copy of a contract that I could present to attorneies which provides the terms for being my 'assistance of counsel' and it seemed reasonable overall, but for reasons on which I was unclear, no attorney will sign it. Since it would be my obligation to find someone qualified to be my assistance, my strategy would be to provide the judge evidence that I was really, really trying to find 'assistance of counsel', but that 'none of the 150 attorneys I've found so far is willing to serve as assistance of counsel. There are still a couple thousand more I need to ask so I just need some more time'. Without my waiving that right, trial could not proceed, so it would be delayed indefinitely until they just got tired of it and removed it from the docket.

That's what I was told, anyway.

And you believe that bullshit???

You could at least pick up a dictionary and look up assistance of counsel.

Assistance of counsel. Sixth Amendment to Federal Constitution, guaranteeing accused i criminal prosecutions "assistance of counsel" for his defense, means effective assistance, as distinguished from bad faith, sham, mere pretense or want of opportunity for conferences and preparation.

Black's Law Dictionary, Sixth Edition, citations omitted.

First, if they are to appear in a criminal case, they damn sure have to be lawyers or attorneys with a valid bar card. You spent too much time around felons who fleeced people and appeared in administrative cases.

See U.S. v. Grismore, 546 F.2d 844 (10th Cir. 1976)

Grismore contends that he was denied his right to counsel as guaranteed by the Sixth Amendment to the Constitution of the United States because he was not allowed to have the person he requested represent him. Grismore requested the court to allow Jerome Daly to represent him. Mr. Daly is not a member of any Bar Association, having been disbarred by the Minnesota Supreme Court. In re Daly, 291 Minn. 488, 189 N.W.2d 176 (1971). The court denied Grismore's request:

. . . the procedure which will be followed in this case will be that either you represent yourself or you have counsel retained who is a member of the Bar of this Court, or you may proceed with your court appointed counsel.

(R., Vol. I, p. 4.)

Grismore chose to be represented by court appointed counsel who handled all arguments and the examination of all witnesses.

The Constitution does not provide the right of representation by a lay person. "Counsel" as referred to in the Sixth Amendment does not include a lay person, rather "counsel" refers to a person authorized to the practice of law. United States v. Cooper, 493 F.2d 473 (5th Cir. 1974), cert. denied, 419 U.S. 859, 95 S. Ct. 108, 42 L. Ed. 2d 93 (1974); Guajardo v. Luna, 432 F.2d 1324 (5th Cir. 1970); Harrison v. United States, 128 U.S.App.D.C. 245, 387 F.2d 203 (1967), reversed on other grounds, 392 U.S. 219, 88 S. Ct. 2008, 20 L. Ed. 2d 1047 (1968); McKinzie v. Ellis, 287 F.2d 549 (5th Cir. 1961).

[...]

In United States v. Hines, 470 F.2d 225, 232 (3rd Cir. 1972), cert. denied, 410 U.S. 968, 93 S. Ct. 1452, 35 L. Ed. 2d 703 (1973), the court held that, " . . . Effective assistance does not demand that every possible motion be filed, but only those having solid foundation." On this basis, we hold that Grismore's counsel was not compelled to argue that the Federal Reserve System is unconstitutional.

The test for incompetent counsel in this circuit is set forth in Ellis v. State of Oklahoma, 430 F.2d 1352 (10th Cir. 1970), cert. denied, 401 U.S. 1010, 91 S. Ct. 1260, 28 L. Ed. 2d 546 (1971):. . . that relief from a final conviction on the ground of incompetent or ineffective counsel will be granted only when the trial was a farce, or a mockery of justice, or was shocking to the conscience of the reviewing court, or the purported representation was only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation. Goforth v. United States, 314 F.2d 868 (10th Cir. 1963).

430 F.2d, at 1356.

The term you were too lazy to look up was standby counsel. And no, you do not have some constitutional right to have one appointed to you if you proceed pro se. If you dismiss your court appointed attorney and demand to proceed pro se, the court may permit you to proceed as your own attorney. If you desire a standby counsel, the court may agree or refuse. If the court agrees to provide one, it may be the appointed counsel you just dismissed, now serving as standby counsel. No counsel is required to make any motion which has no legal basis, such as most of your rubbish. And none of this will jam the wheels of the system for eternity.

U.S. Supreme Court

McKaskle v. Wiggins, 465 U.S. 168 (1984)

Syllabus

At his state robbery trial, respondent was permitted to proceed pro se, but the trial court appointed standby counsel to assist him. Before and during the trial, respondent frequently changed his mind regarding the standby counsel's role, objecting to counsel's participation on some occasions but agreeing to it on other occasions. Following his conviction, respondent unsuccessfully moved for a new trial on the ground that his standby counsel had unfairly interfered with his presentation of his defense. After exhausting direct appellate and state habeas corpus review, respondent filed a habeas petition in Federal District Court, claiming that standby counsel's conduct deprived him of his right to present his own defense, as guaranteed by Faretta v. California, 422 U. S. 806. The District Court denied the petition, but the Court of Appeals reversed, holding that respondent's Sixth Amendment right of self-representation was violated by the unsolicited participation of overzealous standby counsel.

Held: Respondent's Sixth Amendment right to conduct his own defense was not violated, since it appears that he was allowed to make his own appearances as he saw fit, and that his standby counsel's unsolicited involvement was held within reasonable limits. Pp. 465 U. S. 173-187.

(a) The Counsel Clause of the Sixth Amendment implies a right in the defendant to conduct his own defense, with assistance at what is his, not counsel's, trial. Here, the record reveals that respondent was accorded the rights of a pro se defendant to control the organization and conduct of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial. Pp. 465 U. S. 173-175.

(b) The objectives of affirming a pro se defendant's dignity and autonomy and of allowing the presentation of what may be his best possible defense can both be achieved without categorically silencing standby counsel. In determining whether a defendant's Faretta rights have been respected, the primary focus must be on whether he had a fair chance to present his case in his own way. Such rights, however, do impose limits on the extent of standby counsel's unsolicited participation.

First, the pro se defendant is entitled to preserve actual control over the case he chooses to present to the jury, and, second, standby counsel's participation without the defendant's consent should not be allowed to destroy the jury's perception that the defendant is representing himself. Pp. 465 U. S. 176-179.

(c) The appearance of a pro se defendant's self-representation will not be undermined by standby counsel's participation outside the jury's presence. In this case, most of the incidents of which respondent complains occurred when the jury was not in the courtroom, and, while some of those incidents were regrettable, counsel's participation fully satisfied the first limitation noted above. Respondent was given ample opportunity to present his own position to the court on every matter discussed, and all conflicts between respondent and counsel were resolved in respondent's favor. Pp. 465 U. S. 179-181.

(d) It is when standby counsel participate in the jury's presence that a defendant may legitimately claim that excessive involvement by counsel will destroy the appearance that the defendant is acting pro se. Nevertheless, a categorical bar on counsel's participation is unnecessary. Here, where respondent's pro se efforts were undermined primarily by his own changes of mind regarding counsel's role, it is very difficult to determine how much of counsel's participation was, in fact, contrary to respondent's desires. If a defendant is given the opportunity and elects to have counsel appear before the court or a jury, his complaints concerning counsel's subsequent unsolicited participation lose much of their force. Once a pro se defendant invites or agrees to any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the defendant's acquiescence, at least until the defendant expressly and unambiguously renews his request that standby counsel be silenced. Pp. 465 U. S. 181-183.

(e) A defendant's Sixth Amendment rights are not violated when a trial judge appoints standby counsel -- even over the defendant's objection -- to relieve the judge of the need to explain and enforce basic rules of courtroom protocol or to assist the defendant in overcoming routine obstacles that stand in the way of his achievement of his own clearly indicated goals. At respondent's trial, a significant part of standby counsel's participation involved such basic procedures, and none interfered with respondent's control over his defense or undermined his appearance before the jury in the status of a pro se defendant. Pp. 465 U. S. 183-185.

(f) Aside from standby counsel's participation that was either approved by respondent or attendant to routine clerical or procedural matters, counsel's unsolicited comments in front of the jury were not substantial or frequent enough to have seriously undermined respondent's appearance before the jury in the status of representing himself. Pp. 465 U. S. 185-187.

681 F.2d 266, reversed.

Anne Bowen POULIN, The Role of Standby Counsel in Criminal Cases, In the Twilight Zone of the Criminal Justice System, N.Y.U. Law Review, June 2000, pp. 676-736, at 677-78 and 683-85, extensive footnotes omitted.

When a defendant exercises the right to proceed pro se, she imposes a greater burden on the trial court and the justice system to ensure a fair and efficient trial. Pro se representation threatens to create a disorderly and unfair trial because the defendant is both unversed in courtroom etiquette and uneducated in the law. Courts often provide standby counsel to alleviate the burden of presiding over the trial of a pro se criminal defendant and possibly to avert an unfair trial.' On the other hand, some courts regard pro se defendants as clever manipulators of the justice system. Judges may perceive defendants' requests for substitution of counsel as dilatory tactics and then respond by presenting defendants the choice of proceeding with an unsatisfactory attorney or representing themselves with appointed standby counsel.

[...]

In short, the constitutional guidance concerning standby counsel is limited. The pro se defendant cannot demand the assistance of standby counsel. A court may appoint standby counsel but is not required to. Appointed standby counsel may actively assist the pro se defendant but cannot interfere with the defendant's control of the case or the defendant's appearance of control. This bare standard reveals the importance of establishing more defined guidelines for the appointment of standby counsel and the obligations of the designated attorney.

PROBLEMS IN CURRENT PRACTICE

Judicial decisions addressing pro se defendants' complaints reveal troubling patterns in the appointment of standby counsel that heighten the importance of better defining standby counsel's role. The cases depict problems in how defendants choose to represent themselves and how courts assign standby counsel. The decision whether to appoint standby counsel for a pro se defendant generally falls within the trial court's discretion, although appointment is considered the better practice.

Nevertheless, many courts are ambivalent about whether a defendant who waives assistance of counsel should receive the benefit of standby counsel. Most decisions hold that a trial court may properly refuse to appoint standby counsel, and some courts are actually hostile to defendants' requests for assistance. For example, one court argued that "[t]he appointment of standby counsel frequently creates more problems than it solves and often is viewed by defendants as an important factor in making the decision to proceed pro se."' In Brookner v. Superior Court, a California appellate court suggested that the defendant be given the stark choice of self-representation (with no standby counsel) or assistance of counsel: "A self-representing defendant should be flying solo without the comforting knowledge that if turbulence shakes his confidence, a superbly qualified pilot is sitting in the front row of first class."

Before you tell everyone how the law works, you may want to make a minimal effort to learn how the law works.

From the positive point of view, when you represented yourself and you faced criminal charges of which you had every probability of being convicted, although you wrote patriotically of your professed innocence, you sensibly advised yourself to take a plea agreement, and you took your sensible, competent advice to plead guilty.

nolu chan  posted on  2016-07-29   13:53:50 ET  Reply   Trace   Private Reply  


#22. To: nolu chan (#21) (Edited)

When a defendant exercises the right to proceed pro se, she imposes a greater burden on the trial court and the justice system to ensure a fair and efficient trial. Pro se representation threatens to create a disorderly and unfair trial because the defendant is both unversed in courtroom etiquette and uneducated in the law.

The actual reason a party representing themselves pro se has become a burden on the court system is because they are not members of the bar. Therefore they cannot be sanctioned as a member of the bar can. The courts have great power over members of the bar officers of the courts. The courts can sanction and even throw out a member of the bar. The courts have no actual power over pro se litigants. It is not so much that pro se litigants are unschooled in law. It is more to say that many of those nonmembers of the bar are far more intelligent than law clerks working in those federal district courts. Just because a law clerk works in a federal district court does not make them far better educated than a pro se litigant. And by the way, guess who writes those opinions in those federal courts? It sure as hell are not the federal magistrate judges who sign off on those Orders. They don't even read what those law clerks are writing and cutting and pasting boilerplate case law. Refer to this article abovethelaw.com/2016/04/s...ting-to-their-law-clerks/

Most decisions hold that a trial court may properly refuse to appoint standby counsel, and some courts are actually hostile to defendants' requests for assistance.

Again, pro se litigants are treated with contempt even before they file their cases because they are not members of the courts. The federal court system is actually not a court system designed for hearing criminal cases as it was designed for bankruptcy and commerce. Bankruptcy and commerce courts operate solely as a business. This is why some federal courts generally do not acknowledge a litigants rights to represent themselves and argue their cases. You don't mix a criminal case court system with Courts of War (bankruptcy and commerce).

goldilucky  posted on  2016-07-29   15:34:44 ET  Reply   Trace   Private Reply  


#23. To: nolu chan (#21)

I understand perfectly well that at the time Albritton pleaded guilty, her chances of getting acquitted were about as good as yours when you absolutely jumped at a plea bargain. So stop the bullshit. Whether or not to take a plea deal must be judged at the time the offer is made, not under different circumstances that may later arise.

Her chances were 100% of either aquittal or, more likely, charges dropped. Pleas can be changed later. Or is your idea of a decent justice system one where innocent people are compelled to gamble with the outcome?

The very late testing on the Albritton evidence did not and could not prove innocence. The absence of evidence is neither proof of innocence nor guilt.

The absence of guilt means "not guilty" and you know that, so you cut the bullshit. "Proof of innocence" is proof of a negative and not the burden of the defense.

Why is it a system failure when Albritton takes a deal in her self-interest, but it is not when you make a conscious and knowing decision to take a plea in far less serious circumstances of your own making?

It was in both cases. Plea bargains are a judicial sham. If the state has a case, it should be compelled to make it. A right to a trial is just that. Punishing people more because they choose one is a violation of a constitutional right. Ergo, plea bargains in exchange for a lessor penalty are really a violation of that right. That people freely choose them due to personal considerations doesn't change that.

Yesterday after seeing your response, I went out to the market. Bought some strawberries, grapes and a few other produce items from the local market. Had an argument with the the spanish speaking indigenous woman who sold the grapes. She said they were $1/pound at first but the price changed to $1.50/pound after she weighed it. Pineapples here are 50 cents each. They are the smaller variety, maybe a little less than half the size as the ones typically sold in the US, but I find they are sweeter. Strawberries are available year round here, as are many fruits, some of which I'd never seen before leaving the USA.

Living outside the USA is a very eye-opening experience, and one that gives a good contrast of culture and law as well, among other things. You learn that what works in the end is the final arbiter of winning or losing, not any laws per se. Though you'd disagree, human laws are actually fickle. We've seen that even in the USA with the decision not to prosecute Hillary over her emails. It's not a perfect world, and the institution of laws don't change that. You want to believe the system works perfectly, but it doesn't. It can't.

I do respect you for your tenacity and ability to cite so much legal material, court cases and such. Academically speaking, it's admirable. I guess I could be flattered you consider my writings worth whatever attention you've given them. But I would point out that you do cite legal references much as a Southern Baptist preacher cites the bible, and more so. Certainly there's far, far more so-called "case law" in a legal library than there is biblical writings, perhaps on the order of magnitude of 10,000 to 1? But for you, I get the very honest sense that law is nothing less than a full blown religion. Your approach and advocacy of about everything you post is from the perspective of "the law". Doubtless you are a very good real life personification of Inspector Javert, the antagonist police inpector from "Les Miserables" who oversaw the jailing of bread thief Jean Valjean and after his escape, later pursued him as his life's passion. All because "the law is the law".

I'm guessing you've never been arrested, charged with a crime or sued. Maybe you are a lawyer and have gone to law school, and obviously you do a lot of research on the net, but unless and until you have been through the system from the perspective of being accused, arrested unexpectedly by strangers and hauled away without preparation, held against your will and treated like cattle and verbally shunned by people that don't know you, all your academics is simply that. You have zero personal experience with the legal system. And no matter how much you think you know, and no matter how much you do know, I know more than you do, and so does Albritton, along with many millions of other Americans who've been at the receiving end of the legal system you cherish so much. So until you've walked the walk, don't talk the talk. It's just a lot of hot air, and you're nothing more than the modern equivalent of a biblical Pharisee.... one who knows theory but clueless on real life application.

Pinguinite  posted on  2016-07-30   12:52:15 ET  Reply   Trace   Private Reply  


#24. To: Pinguinite (#23)

"Plea bargains are a judicial sham. If the state has a case, it should be compelled to make it. A right to a trial is just that. Punishing people more because they choose one is a violation of a constitutional right. Ergo, plea bargains in exchange for a lessor penalty are really a violation of that right. That people freely choose them due to personal considerations doesn't change that." - Pinguinite

This should be a famous quote so I'll make it one.

goldilucky  posted on  2016-07-30   14:35:44 ET  Reply   Trace   Private Reply  


#25. To: goldilucky (#24)

Thank you, but it's just stating the obvious.

Pinguinite  posted on  2016-07-30   19:56:43 ET  Reply   Trace   Private Reply  


#26. To: Pinguinite (#23)

[nolu chan #21] Whether or not to take a plea deal must be judged at the time the offer is made, not under different circumstances that may later arise.

[Pinguinite #23] Her chances were 100% of either aquittal or, more likely, charges dropped. Pleas can be changed later. Or is your idea of a decent justice system one where innocent people are compelled to gamble with the outcome?

Her chances, at the time she pleaded, were about 100% for conviction. Her only hope was that the confirmatory test came back negative, and she was blaming the drugs on the 30-day boyfriend. And once your guilty plea is accepted, it not often that you get a mulligan.

Who keeps "a used needle hidden in the lining on the roof," also identified as a syringe? It was confiscated for suspected trace evidence. It was not tested at the much later date. If the syringe were stuck in the lining, trace evidence could have been wiped off when it was inserted and removed. Had the case gone to a contested trial, the area where the syringe was inserted very well might have had a sample removed and subjected to testing. The guilty plea made that unnecessary.

The absence of guilt means "not guilty" and you know that, so you cut the bullshit. "Proof of innocence" is proof of a negative and not the burden of the defense.

Not guilty does not mean innocent. It means not being proven guilty beyond a reasonable doubt. O.J. was found not criminally guilty by proof beyond a reasonable doubt, but the civil case, O.J. was found liable by a preponderance of the evidence. The absence of evidence did not prove Albritton innocent.

Or is your idea of a decent justice system one where innocent people are compelled to gamble with the outcome?

As your agreement to a plea bargain spoke so eloquently, you did not want to gamble on trying to sell your legal theories to a jury or a judge.

Perhaps your idea of the ideal justice system is one without plea bargains. In such a system, you can plead guilty or go to trial on every case. So, the innocent murder defendant cannot plead to a lesser offense. He must take his chances. Undoubtedly, more innocent people are sentenced to death after a jury verdict than after a plea bargain. The Innocence Project (Barry Scheck, Peter Neufeld, et al.) regularly proves that juries are not infallible, prosecutors do not play by the rules, and law enforcement or expert witnesses tell lies and present junk science. You are greatly mistaken in your belief that an innocent person will gain an acquittal at a jury trial.

Speaking of your faith in jury trials, I note that before you entered into a plea bargain, you had already waived your right to a jury trial and chosen a bench trial.

Albritton choose not to risk trial for good reason. She had no reasonable expectation that the confirmatory test would be negative.

Choosing to go to trial was a crap shoot you chose not to make, for good reason. You had no reasonable expectation that anyone would accept your excuses.

Plea bargains are a judicial sham. If the state has a case, it should be compelled to make it. A right to a trial is just that.

There is a way to enjoy that right. Plead not guilty. This argument is a sham. It's like your Fifth Amendment right to remain silent. You can waive it.

Your problem, like Albritton, was that you did not have a case. Albritton had only a Hail Mary that the confirmatory test would be negative. She was not willing to bet years of her life on a prayer she did not believe in.

Your Cliff's Notes defense:

With that, of the five charges, (no headlights, no DL, refusal to provide registration, refusal to obey, and obstruction of justice), the second should be defective since I was actualy driving on a suspended license (a technicality, but acquitals have been made on less). The third, fourth and fifth should be beatable for lack of evidence of an actual order that was not obeyed and/or his coercive illegal order. The headlight charge appears the hardest to beat.

I took another look at the penalties for driving without a license and driving on a suspended license and discovered the laws had changed since I'd examined them in 1999. Back then, those two charges were punished identically: first offense was a fine, second and subsequent offenses earned up to 60 days in jail. (Incidentally, that is the reason I didn't bother to pay the fines from 1999. Maryland would have considered my subsequent driving illegal whether I paid the fines or not. Since I could not obtain a lawful driver license from either PA or Maryland, my choice was either be driving without a license or driving on a suspended. But with each carrying identical penalties there was no legal advantage in paying the fine so simply I opted to keep my money).

Now the laws had changed to driving without a license being only a fine for the first offense, and up to a year on the second offense while driving on a suspended was up to a year on the first offense. (A year!?) With that it appeared I benefited somewhat by getting charged with obstruction which 'only' carries a 60 day max penalty compared to a year with suspended. Perhaps I handled this arrest incident favorably after all.

(1) Driving down the street with the streetlights on, and your headlights off, and being stopped for not using headlights is hard to beat. It was May, 9:26 p.m., in Maryland. Sunset was at 8:13 p.m. and it was raining severely.

(2) No drivers license. As you said, "Maryland had me down for a suspended license." The lawyers straighten that out before trial. You can rely on, "I tried hard to get PA to take my application for one without the SSN, but failed. Driving for reasons of personal affair is still by moral dictates a right (it has to be)." Actually, operating a motor vehicle on the roads without a license is a crime. Having no registration does not fall under a secret moral rights codicil to the Constitution either.

(3) Refusal to provide registration. Cop wins. The cop will testify. And, as you said, "I don't even need to testify, probably, given the officer's own statement." Not testifying would be a wise decision, with the understanding that any argument would be hopeless, and you could only make things worse.

(4) Refusal to obey. As in refusal to provide any identification.

(5) Obstruction of justice.

Gerald Thomas Titus, Jr. v. State of Maryland

No. 6, September Term 2011, Opinion by Greene, J.

CRIMINAL LAW - OBSTRUCTING AND HINDERING A LAW ENFORCEMENT OFFICER IN THE PERFORMANCE OF A DUTY

The State has the burden of proving beyond a reasonable doubt each of the following elements of the common law offense of obstructing and hindering a law enforcement officer in the performance of his or her duty: (1) a police officer engaged in the performance of a duty; (2) an act, or perhaps an omission, by the accused which obstructs or hinders the officer in the performance of that duty; (3) knowledge by the accused of facts comprising element (1); and (4) intent to obstruct or hinder the officer by the act or omission constituting element (2). A conviction for this offense requires proof beyond a reasonable doubt of actual obstruction or hindrance of a police officer. The four-part test for obstructing and hindering applies to all categories of the offense.

Hiibel v. Sixth Jud. Dist. Ct. of Nev., Humboldt Cty, 542 U.S. 177, 180 (2004)

The petitioner was arrested and convicted for refusing to identify himself during a stop allowed by Terry v. Ohio, 392 U. S. 1 (1968). He challenges his conviction under the Fourth and Fifth Amendments to the United States Constitution, applicable to the States through the Fourteenth Amendment.

I

The sheriff’s department in Humboldt County, Nevada, received an afternoon telephone call reporting an assault. The caller reported seeing a man assault a woman in a red and silver GMC truck on Grass Valley Road. Deputy Sheriff Lee Dove was dispatched to investigate. When the officer arrived at the scene, he found the truck parked on the side of the road. A man was standing by the truck, and a young woman was sitting inside it. The officer observed skid marks in the gravel behind the vehicle, leading him to believe it had come to a sudden stop.

The officer approached the man and explained that he was investigating a report of a fight. The man appeared to be intoxicated. The officer asked him if he had “any identification on [him],” which we understand as a request to produce a driver’s license or some other form of written identification. The man refused and asked why the officer wanted to see identification. The officer responded that he was conducting an investigation and needed to see some identification. The unidentified man became agitated and insisted he had done nothing wrong. The officer explained that he wanted to find out who the man was and what he was doing there. After continued refusals to comply with the officer’s request for identification, the man began to taunt the officer by placing his hands behind his back and telling the officer to arrest him and take him to jail. This routine kept up for several minutes: the officer asked for identification 11 times and was refused each time. After warning the man that he would be arrested if he continued to refuse to comply, the officer placed him under arrest.

We now know that the man arrested on Grass Valley Road is Larry Dudley Hiibel. Hiibel was charged with “willfully resist[ing], delay[ing], or obstruct[ing] a public officer in discharging or attempting to discharge any legal duty of his office” in violation of Nev. Rev. Stat. (NRS) §199.280 (2003). The government reasoned that Hiibel had obstructed the officer in carrying out his duties under §171.123, a Nevada statute that defines the legal rights and duties of a police officer in the context of an investigative stop. Section 171.123 provides in relevant part:

“1. Any peace officer may detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime.

. . . . .

“3. The officer may detain the person pursuant to this section only to ascertain his identity and the suspicious circumstances surrounding his presence abroad. Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer.”

Hiibel was tried in the Justice Court of Union Township. The court agreed that Hiibel’s refusal to identify himself as required by §171.123 “obstructed and delayed Dove as a public officer in attempting to discharge his duty” in violation of §199.280. App. 5. Hiibel was convicted and fined $250. The Sixth Judicial District Court affirmed, rejecting Hiibel’s argument that the application of §171.123 to his case violated the Fourth and Fifth Amendments. On review the Supreme Court of Nevada rejected the Fourth Amendment challenge in a divided opinion. 118 Nev. 868, 59 P. 3d 1201 (2002). Hiibel petitioned for rehearing, seeking explicit resolution of his Fifth Amendment challenge. The petition was denied without opinion. We granted certiorari. 540 U. S. 965 (2003).

[...]

Hiibel argues that his conviction cannot stand because the officer’s conduct violated his Fourth Amendment rights. We disagree.

Asking questions is an essential part of police investigations. In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment. “[I]nterrogation relating to one’s identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure.” INS v. Delgado, 466 U. S. 210, 216 (1984). Beginning with Terry v. Ohio, 392 U. S. 1 (1968), the Court has recognized that a law enforcement officer’s reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further.

[...]

Petitioner further contends that his conviction violates the Fifth Amendment’s prohibition on compelled self-incrimination. The Fifth Amendment states that “[n]o person … shall be compelled in any criminal case to be a witness against himself.” To qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled. See United States v. Hubbell, 530 U. S. 27, 34–38 (2000).

Respondents urge us to hold that the statements NRS §171.123(3) requires are nontestimonial, and so outside the Clause’s scope. We decline to resolve the case on that basis. “[T]o be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Doe v. United States, 487 U. S. 201, 210 (1988). See also Hubbell, 530 U. S., at 35. Stating one’s name may qualify as an assertion of fact relating to identity. Production of identity documents might meet the definition as well. As we noted in Hubbell, acts of production may yield testimony establishing “the existence, authenticity, and custody of items [the police seek].” Id., at 41. Even if these required actions are testimonial, however, petitioner’s challenge must fail because in this case disclosure of his name presented no reasonable danger of incrimination.

The Fifth Amendment prohibits only compelled testimony that is incriminating. See Brown v. Walker, 161 U. S. 591, 598 (1896) (noting that where “the answer of the witness will not directly show his infamy, but only tend to disgrace him, he is bound to answer”).

[...]

As best we can tell, petitioner refused to identify himself only because he thought his name was none of the officer’s business. Even today, petitioner does not explain how the disclosure of his name could have been used against him in a criminal case. While we recognize petitioner’s strong belief that he should not have to disclose his identity, the Fifth Amendment does not override the Nevada Legislature’s judgment to the contrary absent a reasonable belief that the disclosure would tend to incriminate him.

[...]

You could have argued in court, as you did in blog, that in Hiibel, "Contrary to popular belief, the question facing the court was not whether Hiibel was within his rights to refuse to give his name. That answer was already well documented and understood. The real question tackled was: 'What is the average IQ of the current supreme court justices' to which a majority gave a very unflattering answer."

I would not consider it a winning strategy. You can only be just so much of a dickhead with a cop, in the rain, backing up traffic, until a routine traffic stop threatens to be a stretch in jail. You were lucky to evade trial. They had you by the short and curlies.

Punishing people more because they choose one is a violation of a constitutional right. Ergo, plea bargains in exchange for a lessor penalty are really a violation of that right. That people freely choose them due to personal considerations doesn't change that.

You are entitled to your opinion and the courts are entitled to theirs. As I always say, their's carries more weight, so it pays to know what their opinion is before jumping in a pile of shit. Your novel idea of the constitution sounds good on a blog, but you hjave demonstrated that you know better than to try it in court when it is your own ass on the line.

As I quoted from the U.S. Supreme Court in Frye at #19,

Because ours “is for the most part a system of pleas, not a system of trials,” Lafler, post, at 11, it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. “To a large extent . . . horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.” Scott & Stuntz, Plea Bargaining as Contract, 101 Yale L. J. 1909, 1912 (1992). See also Barkow, Separation of Powers and the Criminal Law, 58 Stan. L. Rev. 989, 1034 (2006) (“[Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes. This often results in individuals who accept a plea bargain receiving shorter sentences than other individuals who are less morally culpable but take a chance and go to trial” (footnote omitted)). In to­day’s criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.

That is not my opinion. It is the U.S. Supreme Court describing the system as it is. It is reality and not one of your fantasies.

Yesterday after seeing your response, I went out to the market. Bought some strawberries....

I take it you already had some steel balls to roll around in your hand, and someone stole your strawberries.

Living outside the USA is a very eye-opening experience, and one that gives a good contrast of culture and law as well, among other things.

You get to shop for fresas and uvas and ananas and such at the mercado. And vino may be cheaper than coca-cola. I am reasonably certain that I have spent several times over whatever time you have spent outside the USA.

You learn that what works in the end is the final arbiter of winning or losing, not any laws per se.

To the contrary, I learned that under the Roman Code system, what is in the laws counts. It does not rely on a system of precedents as does the English Common Law System (the U.S. system). I understand Ecuador uses a Civil Code system, typical of Latin countries, and in the USA unique to Louisiana state law, derived from the Napoleanic Codes. Your comment leads me to believe you have not yet enjoyed the experience of being a party to litigation under the code system.

Though you'd disagree, human laws are actually fickle. We've seen that even in the USA with the decision not to prosecute Hillary over her emails.

Hillary was politics, not law. That was all the Executive Branch and there was no referral to the Judicial Branch. The judiciary is empowered to interpret and construe the law. Your fanciful proclamations of the law are presented to a blog. When it was time to try it in court, you wisely chose not to. It was your voluntary choice.

I do respect you for your tenacity and ability to cite so much legal material, court cases and such.

I respect that you have convinced yourself to the point that you so ardently believe the way things ought to be, that you ignore the way they actually are. If some poor dumb slob reads your junk and believes it, and acts on that belief, he can wind up in prison. I do write extensive corrections of the law not because I value legal fantasy, but because it poses a danger to the public.

As for using your magic eight ball to make all sorts of wild guesses about me, your magic eight ball appears to get everything wrong.

You have zero personal experience with the legal system.

I have a great deal more personal experience than you. You definitely need a new magic eight ball. You know even less about me than you do about the law.

nolu chan  posted on  2016-08-01   0:03:03 ET  Reply   Trace   Private Reply  


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