Theory Meets Reality

And it is not a happy encounter.

All the discussion about whether a criminal defendant has received his constitutionally required “fair trial” really should take into account the reality that almost every criminal conviction is “obtained” through a guilty plea that follows a bargaining process.  So that much is all right.

But this is the SCOTUS, and it’s more about drawing lines and setting rules than some messy negotiation.  Scalia doesn’t like “constitutionalizing” the whole thing, and he has a point of course.  But at some point you have to confront the disconnect between theoretical braying about fair trials when trials of any kind as a practical matter do not exist.

Once again the Justices wind up talking around the problem:  it’s a stacked deck.  This is what the lawyer knows but is always a depressing revelation to a noobie client.  If you want to address the abuse that plea bargaining has often become, a lot of deference this and deference that is going to have to go by the wayside.  Abusive prosecutors and lackey judges who indulge them are not entitled to deference.

When is the prosecutor abusive and when is the judge a lackey?  No doubt there could be close questions, but there are also situations in which it is quite clear.  In no case, however, is it an easy call.  Powerful interests are in play.

Far easier then, from this point of view, to focus on the bit player:  the defense lawyer.  The thesis that a miscarriage of justice through a misfire of the plea bargaining process is the result of defense lawyer incompetence rather than prosecutorial abuse is way more agreeable because it upsets no one other than the defense lawyer.  If even that.  And then we all get to go on pretending that nothing major is wrong and that a few incompetent lawyers are the only problem.

It would be a lot clearer to attack this problem from the other side.  If the prosecutor is offering a substantial reduction in severity of conviction and punishment he must necessarily believe that it is in the interest of justice and the public to do so.  Can he then in good faith argue at a trial for a greatly increased liability and punishment?  If the prosecutor is not acting in good faith at a trial isn’t that a “fair trial” constitutional problem?

In civil cases you’re not allowed to use the other side’s offer of compromise against them at a trial.  Maybe the rule should be different for criminal cases (though at present it isn’t) since there are constitutional considerations of a fair trial involved.  If that matters at all.

But thinking along these lines would have a real impact on the process.  It would also shift the focus from the easy target – the defense lawyer – to the much more problematic ones:  the prosecutor and the trial judge.  The SCOTUS has a great technique for keeping things calm, however:  you just don’t take any cases looking at issues from the more problematic angle.


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Filed under Judicial lying/cheating, Striking lawyers, wrongful convictions

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