Monthly Archives: December 2018

Pardon Paradox And Innocence Follies

We thought we should briefly revisit our earlier post regarding People v. Tiger, a very unfortunate case from the New York Court of Appeals.  And we may revisit that case again, for other reasons.  But we have a particular reason in mind this morning.

One of the things a judge explicitly tells a criminal defendant when they are pleading guilty is that there is no difference between the conviction that results from a guilty plea and one that results from a trial.

Increasingly, and especially in the wake of the Tiger decision, this is a lie.  Tiger holds that a person who pleads guilty cannot contest their factual guilt in a “post-conviction” proceeding whereas a person who is found guilty after trial can, although let’s face it the latter is true in theory but not in practice.

Former-prosecutor-now-appellate-judges really seem to have a Thing for “finality”.  First you get Judge DiFiore:

The plea process is integral to the criminal justice system and we have observed that there are significant public policy reasons for upholding plea agreements, including conserving judicial resources and providing finality in criminal proceedings. To that end, we have recognized that a defendant can plead guilty to a nonexistent or legally impossible offense in satisfaction of an indictment that charges a higher offense. Likewise, we allow defendants to plead guilty while maintaining their innocence by entering an Alford plea. Allowing a collateral attack on a guilty plea obtained in a judicial proceeding that comported with all of the requisite constitutional protections on the basis of a delayed claim of actual innocence would be inconsistent with our jurisprudence and would effectively defeat the finality that attends a constitutionally obtained guilty plea.

Thus, a guilty plea entered in proceedings where the record demonstrates the conviction was constitutionally obtained will presumptively foreclose an independent actual innocence claim.

(citations omitted)

Notice how Judge DiFiore tries to subtly lump Alford pleas in with other guilty pleas in this context.  That’s really, really bad man.  We’ll get back to that shortly.

First, though, we’ll quote Judge Garcia.  He concurs, but wants to “emphasize” something, though we’re not sure what:

I join the majority and agree that defendant’s “freestanding actual innocence” claim is not cognizable under CPL 440.10 (1) (h). I write separately to emphasize that defendant’s “freestanding” claim is foreclosed regardless of whether she raised, or could have raised, an alternative claim.

What he really seems to want to emphasize, however, is how wonderful we are to criminal defendants and how it’s wrong to let them take advantage of our generosity:

Under New York law, a defendant who maintains his or her innocence may employ various procedural protections, and pursue an array of challenges, to ensure that guilt or innocence is fairly and reliably determined.  Initially, a person charged with a crime may elect to proceed to trial…Alternatively, a defendant may forego a trial in favor of a guilty plea. The plea bargaining process, an essential component of our justice system, enables a defendant to concede guilt in exchange for certainty and leniency—oftentimes in the form of a lesser conviction or a more favorable sentence. It also serves a number of critical public policy goals, including conservation of judicial resources and finality in criminal proceedings…

Judge Garcia really likes to “emphasize”:

Under New York’s statutory scheme, a defendant may pursue various claims on appeal to directly or collaterally challenge a judgment of conviction…First, a defendant convicted at trial may bring a direct appeal to challenge the procedural fairness of the proceedings as well as the adequacy of the evidence presented…A convicted defendant may also move to vacate the judgment pursuant to CPL 440.10…New York’s existing framework already contemplates numerous and various relief mechanisms for a defendant who—despite having been convicted—maintains his or her innocence…The CPL’s exhaustive list of specified remedies…Even where these challenges fail, a defendant has further remedies still…

And look how ungrateful they are:

 …a “freestanding” claim would allow a defendant to bargain strategically, only to later attack the factual sufficiency of his or her plea. Having received the benefit of a lenient plea deal, a defendant should not be permitted to subsequently challenge that conviction on the ground that he or she is “innocent” of the charge of conviction…

So, of course:

Having struck a bargain with the People many months ago, defendant cannot now contest her guilt in a belated, jury-less, free-for-all mini-trial.

“Free for all”?  Rhetorical excess much, Judge Garcia?

Judge Garcia quotes the more or less infamous federal habeas case of Herrera v. Collins:

 “In any system of criminal justice, innocence’ or guilt’ must be determined in some sort of judicial proceeding”

But the quote is selective.  On the same page Herrera says this:

After all, the central purpose of any system of criminal justice is to convict the guilty and free the innocent.

Judge Garcia leaves that part out.  Indeed his whole concurring opinion reads more like the rather shrill brief of a party than a judicial opinion.

Want more selectivity?  It is fundamentally and intellectually dishonest, as the majority opinion does, to cite Tollett v. Henderson for the proposition that:

When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.

without also citing the later case of Menna v. New York:

Neither Tollett v. Henderson, 411 U. S. 258 (1973), nor our earlier cases on which it relied, e. g., Brady v. United States, 397 U. S. 742 (1970), and McMann v. Richardson, 397 U. S. 759 (1970), stand for the proposition that counseled guilty pleas inevitably “waive” all antecedent constitutional violations. If they did so hold, the New York Court of Appeals might be correct. However, in Tollett we emphasized that waiver was not the basic ingredient of this line of cases, 411 U. S., at 266. The point of these cases is that a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case. In most cases, factual guilt is a sufficient basis for the State’s imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction, if factual guilt is validly established. Here, however, the claim is that the State may not convict petitioner no matter how validly his factual guilt is established. The guilty plea, therefore, does not bar the claim.

Emphasis supplied, as we say, but particularly importantly here to illustrate the further intellectual dishonesty of trying to lump Alford pleas in with other guilty pleas in this context, since an Alford plea by definition contains no admissions of factual guilt.

It would be fairer, and simpler, to say that the “central purpose of any system of criminal justice” is to free the innocent, because convicting the guilty is properly the responsibility of the executive branch.  It is implicit in this that its determinations of guilt or innocence must be accurate, and so it would also be fairer to say that “finality” doesn’t matter at all in a criminal justice system, but certainly not at the expense of accuracy.  In the civil justice system it does – res judicata, doncha know – but not in the criminal justice system, which has always permitted criminal convictions to be “collaterally” attacked, which would run afoul of the doctrine of res judicata if that doctrine applied.

Which obviously, therefore, doesn’t.

We think prosecutors should be disqualified from being judges.

Finally, the “pardon” thing.  We do not understand how the SCOTUS and now the New York Court of Appeals can claim that “traditionally”, pardons were the last resort for an innocent convicted person.  In fact, traditionally, the acceptance of a pardon has been deemed an admission of guilt along with the need for forgiveness and mercy, such that even those advocating for pardons on the ground of innocence have noted that the idea is paradoxical.

The innocent convicted do not need forgiveness and mercy from us.  We need forgiveness and mercy from them, for convicting them in the first place.

The dissent in Tiger has it right, we say:

“Every wrongful conviction is a stain on the reputation of the courts, eroding public trust and confidence in the legitimacy of our institutional status and the fairness and accuracy of our decisions. This only underscores why the judiciary, the focal point of the entire justice system, is absolutely duty-bound to lead the way in making sure that the criminal justice process is as fair and accurate as humanly possible”

How many criminal defendants have stood in the dock at sentencing being upbraided by the judge for not taking “personal responsibility”, yet a majority of our Court of Appeals judges are now joining the SCOTUS Justices in offering the opinion that the innocent convicted are the responsibility of the executive branch through the pardon power?  It’s a truly shameful abdication.

But at least Judge Wilson is a voice crying in the wilderness:

Today’s decision inexplicably and unnecessarily denies that mission, eschewing our obligation in favor of further legislative action or executive clemency. I will not.

There’s that, then.  But let’s face it, Judge Wilson was writing in dissent on a 5-2 decision.



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The Impeachment Of Trump

Just thought we might cut to the chase on the whole Trump-y thing.  Here’s the dynamic now that the House of Representatives has changed hands but the Senate has not:

The “Mueller probe”, which is not a spacecraft or an uncomfortable medical procedure but rather an anomalous creature of the deep state to officially punish – and more importantly to officially discredit – those it doesn’t like, will finish up with a published report that will variously, and hysterically, and with great media hue and cry, be characterized as “scathing”, “devastating”, and similar such.  And this will form the basis for “articles of impeachment” that originate in the Democrat controlled House and which, you know, at this point they pretty much have to do even if they don’t really want to and know that the Senate (still Republican) will not convict and remove at the trial.

Because, like we said, the discrediting part is actually more important than really punishing anyone, and we all get to say, along with the deep state swamp dwellers, that Trump has suffered the rare “disgrace” of a sitting president to have been “impeached”.

The whole otherwise pointless exercise, in other words, is just so the shrillness that has characterized DC since the beginning of the Trump insurgency can acquire some measure of legitimacy, at least in the minds of swamp dwellers.  Which is not much of a point in the first place, because they don’t need any persuading on that score.

Will anyone else be persuaded?  That’s the only interesting question here.

Our take?  Doubtful.  We don’t think this is just about Trump.

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