Plot bunny: plea bargaining dilemma

Last week I gave you a plot bunny (big city cop in a small town!), and here I am with another. This one will work pretty well if you want a sympathetic protagonist with a criminal record.

Here are the facts. About 95% of criminal cases never make it to trial. The primary reason for that is plea bargaining, in which the defendant agrees to plead guilty—often to lesser charges—in exchange for a reduced sentence. (For more on plea bargains, check this previous post.)

Plea bargains offer a lot of potential benefits. The defense attorney has a lighter caseload. So does the prosecutor—who also gets another conviction credited to her. The courts have fewer cases, resulting in less expense and less backlog. And guilty defendants get a lighter punishment.

But. What if the defendant is innocent? What if he honestly didn’t commit the crime, but his defense attorney comes to him with a deal from the DA: plead guilty and spend, say, 5 years in prison, or go to trial and risk getting convicted and spending  even longer locked up? What if the stakes in this gamble are really high—as in a potential life sentence? What’s our poor, innocent hero going to do? Well??

(Incidentally, that handsome plot bunny was drawn by the very talented Catherine Dair. You should check out her other work!)

What lawyers really do

Word association time! When I say lawyer, what image comes to mind? Probably someone in a suit, standing in a courtroom and making passionate arguments. And sure, some lawyers do that. In reality, however, the vast bulk of attorneys’ work in criminal cases—whether the lawyers are defense attorneys or prosecutors—takes place outside the courtroom.

The United Kingdom and some other common law countries have two kinds of lawyers: barristers act as advocates in court, whereas solicitors do most of the out-of-court work. We don’t make this distinction in the US, however, and even the UK has blurred the lines in recent years.

Only about 5% of criminal cases ever get to trial. In the other cases, the charges are dropped, the defendant pleads guilty, or a plea bargain is reached. That means that in 95% of criminal cases, the lawyers will never step foot in court.

But of course that doesn’t mean they aren’t busy. They’re leading investigations into the evidence; interviewing the defendant, victim, and/or witnesses; doing research into the law; filing paperwork such as pretrial motions; and discussing the case with the opposing side. Depending on the complexity of the case, these activities will last months or even years. And if the case does end up in court, while the trial is going on the lawyers will continue to do a lot of work behind the scenes.

I know trials make for exciting drama on the screen and in our pages. It’s a bit more challenging to draw excitement out of a scene in which someone’s drafting a motion or memorandum. (“Heart racing, she paused with her finger hovering over the mouse button. Should she click Search now, or were her Boolean terms too broad?”) But if you’re going for accuracy in your depiction of a lawyer in a criminal case, you should at least acknowledge the amount of effort going on outside the courtroom.

Changes of venue

Among other things, the 6th Amendment guarantees defendants the right to an impartial jury. Seems simple enough. But what if a case is so high-profile or notorious that everyone in the vicinity has heard the details, and it becomes impossible to find potential jurors who haven’t already drawn conclusions about the defendant’s guilt? In that situation, a lawyer can file a motion for a change of venue.

If a change of venue motion is granted, the trial will be moved to another jurisdiction. If the defendant is being prosecuted under state law (as most are), the case will end up in another county in the same state. If the case is being prosecuted by the feds, the case will move to another state.

There’s a strong reluctance within the justice system to grant changes of venue. One reason for this is that the 6th Amendment states that the jury should be “of the state and district wherein the crime shall have been committed.” More practically, however, changing venue is expensive. The entire legal teams for both sides have to travel and temporarily relocate, as do witnesses. And the defendant will need to be transported, usually along with a lot of police.

Sometimes, though, it’s going to be nearly impossible to constitute a fair jury. This is sometimes demonstrated by the requesting party via public opinion polls or other research showing high local levels of knowledge about the case and showing that most locals have already drawn conclusions about the defendant’s guilt.

Either side can request a change of venue. It’s far more often the defense who files this motion, but the prosecution can as well. Very recently, for example, the prosecutor moved for a change of venue for a white University of Cincinnati policeman charged with murdering a black man.

You may be familiar with some famous cases in which changes of venue were granted, such as Timothy McVeigh (the Oklahoma City bomber) or the LAPD officers in the Rodney King case. Nevertheless, granting these motions is a rare thing.

Even in high profile cases, judges will deny change of venue motions if they believe it’s possible to obtain a fair jury, or if they believe the case is so notorious that moving it won’t do much good. When Boston Marathon bomber Dzhokhar Tsarnaev was tried in 2015, for instance, the judge refused to move the case.


Telling the truth about verdicts

George fidgeted in his chair while he waited for the jury to return to the courtroom. His lawyer claimed to be optimistic, but still George worried. If he was convicted, he was looking at a hard stint in prison. He crossed his fingers and prayed silently: Please, God, let them find me innocent.

Ah, poor George. He may or may not escape prison, but his prayer is not going to be answered.

A jury decision is called a verdict. The word comes from Latin by way of French, from roots meaning “true speech.” In the United States, criminal verdicts are most often determined by  jury, although occasionally both sides waive the jury, in which case the judge determines the verdict instead (this is called a bench trial).

In our system, only two verdicts are possible.

  • Guilty: This means the jury finds that the prosecutor proved every element of the crime beyond a reasonable doubt.
  • Not guilty: This means the jury finds that the prosecutor failed to prove every element of the crime beyond a reasonable doubt.

That’s it. You’ll note that “innocent” is not an available verdict—ever.

A not-guilty verdict might indicate a number of things. For example, it might mean that the jury is fairly sure that the defendant did it, but they still possess some reasonable doubts. It might mean that the prosecutor proved almost everything but left out something key. Or it might mean that the jury truly believes the defendant is innocent. From a legal perspective, it doesn’t matter; in any of those cases, the result is the same. George is acquitted and goes home.

While the law doesn’t care about the difference between not guilty and innocent, George might. Records of his arrest and trial might still affect his life in various ways, even if he was ultimately acquitted. In some jurisdictions, he can file a factual innocence motion asking the court to enter a finding that he really is innocent. A hearing will be held, during which George (or his lawyer) can present evidence. If the judge finds in George’s favor, his arrest records will be sealed and eventually destroyed. Few defendants go this route, however.

Incidentally, once a not-guilty verdict has been entered, the defendant can never, ever be retried for that particular crime in that jurisdiction, no matter how much wonderful evidence shows up later on. That’s because of the double jeopardy clause, which I blogged about earlier.


Pleas, please

Let’s begin with a bit of etymology ’cause that’s the way we roll. “Plea” and “please” come from the same Latin root, placere, meaning “to please.” Plea made its way into English via French, and by medieval times, plea meant “lawsuit.” The English had a complicated judicial system that included the Court of Common Pleas as well as the Exchequer of Pleas, and US states such as Pennsylvania and Ohio still have common pleas courts.

But eventually plea took on another meaning as well: a formal answer to criminal charges. That’s the kind of plea we’re discussing today.

The typical procedure in the US is for a defendant to enter a plea at some point during the legal proceedings. The precise point is going to depend on the jurisdiction and the severity of the charges. Whenever it occurs, the defendant has two (or possibly three) options:

  • Guilty: This plea means the defendant admits to the charges. No trial is necessary. In practice, a guilty plea often occurs as a result of plea bargaining, during which the prosecutor agrees to reduce the initial charges and the defendant agrees to plead guilty to those reduced charges.
  • Not guilty: This means the defendant denies part or all of the charges. Unless he changes his mind, a plea agreement is reached, or the prosecutor drops the charges, the case will go to trial.
  • Nolo contendere: Also called no contest. This means the defendant does not admit to the charges–but she doesn’t deny them either. Why would this happen? Usually it’s the result of a plea bargain. The defendant’s still going to be punished the same as if she had pled guilty. The advantage from her standpoint is that a nolo contendere plea can’t usually be used as evidence against the defendant in any related civil lawsuits (but a guilty plea or a conviction can). Not all jurisdictions allow this plea.
Peine forte et dure.

Peine forte et dure.

At common law (i.e., in Merrie Olde England), a trial could not proceed until the defendant entered a plea. As you might imagine, this could cause problems when stubborn defendants kept their mouths shut. In those cases, English law allowed something called peine forte et dure (forceful and hard punishment) or, in English, pressing. The defendant would be tied down, a board would be put on him, and then weights or stones would be piled on the board until he either entered a plea—guilty or not guilty—or died. If he entered a plea, the weights would be removed and he’d go to trial. Some defendants chose to die instead. Why? Because if they went to trial, the consequences could be terrible for their family, including torture or forfeiture of property. But if the defendant was pressed to death, his family remained unscathed and got to keep his estate.

The English abolished pressing in the 18th century, as did Colonial America. Today, if someone stands mute (refuses to enter a plea), the court will automatically enter a plea of not guilty for them.

If a defendant enters a not-guilty plea, he can change it later on. This happens all the time during plea bargaining, and it’s strongly encouraged because it reduces costs and court backlogs. On the other hand, it’s much harder for a defendant to withdraw a guilty plea. It has to be allowed by the judge, who will do so only under certain circumstances, such as a strong proof that the defendant is actually innocent or evidence that the defendant didn’t understand what was happening.

The good news is that, no matter what, today’s defendants won’t be squished under weights.

Incidentally, just as defendants are limited in what pleas they can enter, juries are limited in what verdicts they can decide. Juries have only two options: guilty or not guilty. I’ll discuss that in a later post.



Letting the victims have their say

The US criminal justice system was never meant to serve victims. This may seem harsh, but it’s the reality. After all, look at the names of criminal cases: People of the State of California v. Smith. United States v. Jones. Criminal law is a battle between the government and the defendant. The government is, at least in theory, representing the residents of that jurisdiction who have allegedly been harmed by the defendant’s actions.

I know what you’re thinking. The residents have been harmed? What about the victims?

The main answer is that the civil law system is for victims. If someone is injured by a criminal act, the victim can almost always bring a civil lawsuit against the offender, whether or not that offender has been criminally convicted. The standard of proof will be easier to meet in a civil case than in a criminal case, which means that even when a defendant is found not guilty on criminal charges, he can still be held liable in a civil case (as happened, famously, to both OJ Simpson and Robert Blake). Furthermore, if the defendant was convicted, that conviction can be used as evidence in the civil lawsuit.

But victims might not want to get involved in a civil suit for various reasons. And even if they win, the most they can get is an award for money damages—which isn’t going to do them much good if the bad guy’s broke or sitting in prison.

Victims often do take part in criminal cases as witnesses, but whether they testify and what questions they answer are completely within the lawyers’ discretion and intended to serve the lawyers’ needs. By the time cross-examination is over, some (but certainly not all) victims may feel even further traumatized by the process.

Some years ago, a new way for victims to participate in the criminal justice process arose: victim impact statements. These come after defendants are convicted and before they are sentenced. They allow the victims to address the court directly—without being questioned by attorneys—and talk about the impact of the crime on them. The statements are usually prepared ahead of time and read in court, although some jurisdictions allow some or all of the statement to be video recorded.

Victim advocates say that these statements are a powerful tool, allowing victims the psychological satisfaction of having had their say and also, perhaps, informing the court on an appropriate sentence. But the statements are controversial. Critics say they introduce unnecessary bias and emotion. Critics also claim that those who attack powerful or well-loved victims are more likely to receive harsher punishment than those whose victims were already marginalized. If a homeless man is murdered, for instance, who will appear in court to talk about the effects of his death? But does that mean his life is less valuable than, say, a wealthy person with a large family?

What the sentencer (usually the judge) does with the victim impact statement is entirely discretionary. The sentencer might ignore it. Or the sentencer might take it to heart and award the maximum allowable punishment.

Incidentally, from an author’s perspective, a victim impact statement could make for a wonderfully emotional scene. It might also be a good way to allow otherwise silent characters to talk about their lives and feelings, so it could serve as an expository device.


But I’m Innocent, I Say!

Fred fidgeted as the jury filed into the courtroom. He couldn’t read their faces; they seemed neither happy nor sad. Just determined to announce their verdict. And, he guessed, eager to go home to their families.

He wondered if he’d ever get to go home. To his golden retriever, Spot, and his Siamese cat, Mr. Mittens. To his comfortable bed and his collection of Dr. Who bobbleheads. To his 75-inch television with Netflix and HBO and the surround sound speakers he’d installed himself, the quality so amazing that when he watched Star Wars, he could swear he was actually in the Millennium Falcon.

Or maybe he’d spend the rest of his life locked up in the state pen, doing time for a crime he didn’t commit.

The jury foreman stood and cleared his throat. Fred held his breath. “Your honor,” the foreman said. “We pronounce the defendant innocent!”

Fred fainted dead away.

Now, Fred probably fainted from relief. But if he knew anything about the law, he might instead have fainted because the author got things so very wrong.

In the US, there are only two verdicts a jury can issue in a criminal case: guilty or not guilty. That’s it. A guilty verdict means the jury found that the prosecutor proved every element of the crime beyond a reasonable doubt. A not-guilty verdict means the jury found that the prosecutor failed to prove at least one element beyond a reasonable doubt.

There are a couple of implications in this. One is that a jury may be pretty sure the defendant committed the crime, but they must still find him not guilty (also called an acquittal) if they have a reasonable doubt about any element of the crime.

But another implication is that even if the jury is dead certain the defendant is innocent, the legal system doesn’t allow them to officially say so. All they can do is say he’s not guilty–and that doesn’t have quite the same ring to it as “innocent,” does it?

This situation helps us understand why someone can be acquitted of a crime but then successfully sued for the same actions. O.J. Simpson, for instance, was found not guilty of murdering his ex-wife and her friend—because, presumably, the jury had a doubt about some of the evidence. But when the victims’ families sued him for wrongful death, the families won judgments against him of over $35 million. The standard of proof in civil cases is much lighter than in a criminal case; in civil cases, it’s just a preponderance of the evidence (meaning the winning side has slightly more evidence in its favor). While the criminal jury found the evidence insufficient to meet the high burden in a criminal case, the civil jury found the evidence against Simpson more convincing than not.

Some states do have procedures that allow people accused of crimes to have a court declare them factually innocent, but these procedures are used only rarely and in limited circumstances.

So if the jury finds our friend Fred not guilty, he will get to return home to his beloved pets and his home entertainment system. Unfortunately, he may find that the trial and the criminal accusations hang over him for years, especially since they’re matters of public record. Hopefully, Spot and Mr. Mittens will console him.




Order in the Court

Straight-backed and steely-eyed, Amanda Bennis gazed at the jury. “You’ve heard what the prosecutor has to say. Mr. Jones would have you believe that my client, poor sweet Jack Durham, is a monster. But you know in your heart that’s not true. Not a single shred of the prosecution’s evidence stands up to even the simplest scrutiny. Mr. Durham has never harmed anyone in his life. Please do the right thing. Uphold justice—let my client go!”

Although Amanda’s voice rang strongly throughout the packed courtroom, everyone could tell that the jury wasn’t swayed. Twelve pairs of eyes glared in Jack’s direction, twelve mouths turned down in scowls. Jack blinked, trying to keep the tears at bay. He was an innocent man, but nobody except Amanda cared. He was going to rot in prison.

But then, just as all hope was lost, a man stood up from his seat near the back of the courtroom. “Jack didn’t do it!” he yelled. “It was I!”

As the room erupted into chaos, Jack began to sob. Thank God. His evil twin had finally seen the light.

Dramatic courtroom scenes: the bread-and-butter of countless movies, TV shows, and books. Fun to watch, fun to write. In real life, though, few cases ever make it to court.

Criminologists like to talk about the funnel model of criminal justice. Out of every 1000 serious crimes that happen in the US, only about half are reported to police. Eighty percent of the reported crimes go unsolved, meaning we’re left with only 100 arrests. Sixty percent of those defendants will be referred to juvenile court or have their cases dropped early by the prosecutor. Ten of the remaining forty will jump bail or flee, never to face trial. So we’re left with only 30 cases going to trial.

But wait! There’s more! Of those 30 cases, 27 will result in plea bargains, almost always well before anyone steps into the courtroom. If you’ve done the math, you’ll realize that out of 1000 cases, only three will end up before a jury. (Of those three cases, two will result in convictions and one in an acquittal.)

It may be a little discouraging to look at these statistics, and the practice of plea bargaining is controversial. But imagine how backlogged our courts would be if the vast majority of criminal cases didn’t shake out before going to court.

It’s fine if you want to include courtroom scenes in your book. Just keep in mind how rare they are. You might want to acknowledge, at least in passing, that plea bargains are the norm. Give your defendant a good reason for refusing the plea deal—but give your prosecutor a strong enough case that it’s credible she’d bother to take it to trial.