Our Criminal Justice System is Failing

Because it has become the “art-of-the-deal.” Plea bargaining is a necessary part of our legal system. It is an offer to the accused that if they plead guilty rather than take a matter to trial, they will receive certain benefits. Perhaps the defendant will plead to a reduced charge in exchange for the original charge being dropped. Perhaps the defendant will agree to plead to the original charge upon a certain sentence or monetary restriction.

For many reasons—some obvious, some not so obvious—plea bargaining is needed. If every case of every accused went to trial, our system would bog down. (If you don’t like jury duty now, when 90-95% of cases are negotiated prior to trial, imagine how many more times you would be called with such an increase of caseload!) We would need to hire more prosecutors (increase taxes), more judges (increase taxes), more court personnel (increase taxes) and build more courtrooms (increase taxes.)

And that is simply to get to the point of hearing a verdict! If we start to impose more sentences, we would need many more jails and prisons. Which would require…I don’t even have to say it, do I?

Let’s make this personal. While out one evening, some miscreant breaks into your home and steals your television. He is caught, charged, and now the prosecutor is offering to have the defendant plead guilty to a lesser offense, most likely receiving minimal or no jail time, some probation and then off he goes.

You probably are mad. And feel a little violated. It was your home—where your children and pets and spouse live. It was your television—you worked hard to earn the money to buy it. You no longer feel safe; you now triple-lock the doors. Who is this punk to waltz through so easily? The law says stealing a television from a home results in a certain crime and a certain punishment; why should they get a break?

But look at it in the bigger picture. While this fellow is (rightly) going through a trial for stealing a television, a child molester is not. Or a wife-beater. Or a rapist. What is a replaceable television as compared to the broken lives waiting for repair? While your criminal is sitting in prison—there are only so many beds. Jails, due to over-crowding, have the right to release prisoners early. Who do you want sitting in prison—a guy who stole a television or a guy who raped his own daughter?

Within the system we ask the victim to sacrifice their justice. As lawyers, judges, prosecutors and probation officers we see case after case after case. To the victim this may be their one and only brush with crime. To us it is case 9,473 out of 10,000. I can understand why the victim feels the system fails to adequately address their needs—they see it once and what they see is a lack of the criminal receiving the appropriate justice. We see it so many times, in order to make it even feasible we compromise over and over.

Unfortunately we have become jaded to the process. Now, everything is about “the deal.” Not the crime, not the victim, not justice—what is the best deal we can make and get out.

It has become too rare we say, “Enough. THIS crime will not ‘get the deal.’ This crime must be addressed.” The case of the Mayor of Detroit is an example of when we need to say “Enough.”

I heard on a news media, there are meetings by which the Mayor’s representatives are meeting with local officials to negotiate the possibility of his resignation in exchange for pleading guilty to a lesser crime. There was even a suggestion he could plead to a misdemeanor in order to keep his law license. (In Michigan, if you are convicted of a felony, your law license is automatically revoked.)

Because the community is tired of this Mayor, because it would be “best for the city,” it would not be surprising to see such a deal emerge. It is what the system does. I think we are slitting our own throats to allow this to happen. He should be tried, and if convicted, receive the appropriate sentence under the statute. Here is why:

You may need a little background. Detroit police officer Gary Brown was investigating an incident surrounding a party alleged to have happened at the Manoogian Mansion (home of the current Detroit Mayor) and as part of that incident, an alleged affair Mayor Kilpatrick was having with his chief of staff, Christine Beatty.

Deputy Brown was fired. He filed suit against the City of Detroit (and others) claiming he was wrongfully fired for doing his job, because he was investigating the Mayor. Mayor Kilpatrick testified repeatedly he had nothing to do with Deputy Brown’s firing and never had an affair with Ms. Beatty. Ms. Beatty testified she had nothing to do with the firing and no affair with Mayor Kilpatrick.

The jury was not persuaded, and awarded a mutli-million dollar verdict against the City of Detroit. The City appealed. In the process of the appeal, the case was settled for almost $9 Million.

It is now claimed that during the settlement negotiations, certain text messages were obtained by subpoena, which appear to completely contradict the Mayor’s testimony. The messages imply both an affair, as well as knowledge of Brown’s firing, and the reason for his being fired. It is claimed the reason the settlement was negotiated was under threat of these messages being released.

As it turns out, many of these messages were released anyway. The prosecutor for the county of Wayne (where Detroit is) decided to charge Mayor Kilpatrick with perjury—lying under oath. I was amazed (and appalled) to see many “human-on-the-street” interviews with citizens who said, “Aw, leave him alone” or “This was peripheral to the case—what does it matter if he lied about something inconsequential?”

The reason it matters is that perjury is our only tool by which we can even reasonably hope a person does not lie in a trial. In Michigan, perjury—deliberately lying under oath— is a felony punishable by up to 15 years in prison.

Look, you can lie to your wife about having an affair. You can lie to the papers. You can lie to Entertainment Tonight. But when we have you in the stand—by golly, we expect the truth! Because THAT, ladies and gentlemen, is what a trial is designed to be—an exercise by which we determine what happened, as best we can with fallible human beings.

We understand you may not remember whether the car accident was on Tuesday or Wednesday. That is not perjury—that is simply being human. Or you may not remember where you were headed that day. But to repeatedly meet a woman in a hotel, and send love note after note, and received love note after love note, and if you had an affair over a period of years—it is not “simply forgetting” to say you didn’t have an affair! It is lying!

When we have a person in the stand, we have only two (2) primary ways to motivate them to tell the truth. First, if they fear we have a document or other testimony contradicting them. And second is perjury. Even if we have no way of finding out whether they are telling the truth, we want them so scared of going to prison—they chose to tell the truth anyway.

We want the witness thinking, “I may be able to lie here, but if I am ever caught, I could face up to 15 years in prison and it is simply not worth it. No matter how much money may be at stake, no matter how much this may hurt, I don’t want to go to prison over an untruth.”

The last thing we want is the witness thinking, “Meh…’under oath’? Big deal, I can lie here just as easily as lying anywhere else.” In order for our system to have any integrity; in order to preserve the concept we are looking for truth within our trial, we must impose a tremendous sanction on those who would willingly violate truth. Otherwise the idea of trial loses all meaning. We may as well have an interesting debate over a beer, and then vote with a thumbs-up or a thumbs-down.

I know it is tempting to want to deal with the Mayor. Sure, it would be better for the city if he stepped down. Yes, this case is extremely economically expensive. But it is self-defeating to offer anything less than a plea to the charges with a significant sentence.

See, the reason plea-bargaining works is because of the threat of a trial. The idea that if we, as the defense, do not take the deal--the real possibility of a trial, with the witnesses telling the truth, will cause us more harm than agreeing to a deal. If, on the other hand, we can lie with no repercussions within a trial—why take the deal? “Get all your friends together. Create an alibi. Don’t worry—if they are lying they may receive a slap on the wrist, if anything at all.”

I am firmly convinced the easy road of offering a deal to this defendant is a significant step backwards within our ability to enforce truth-telling in the courtroom. We may as well throw out the oath entirely; replace “Do you swear or affirm to tell the truth?” with “Please tell the truth unless you don’t want to, ‘kay?”