Monday, August 11, 2008

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?”


  1. And that's why Clinton deserved impeachment. I'm no fan of Bush (I used to be). Bush's crimes are probably worse. But Clinton really lied on the stand about Monica to avoid prosecution in the Paula Jones case. Frankly I don't see the adultery as a big deal in his case, because I don't think his wife has any problem with it. She knows very well that this is how he operates, and she doesn't seem to mind, so what business is it of mine? To each his own. But he lied on the stand under oath. That's a big deal.

  2. Great post. Americans have been trading the truth for all sorts of plea bargains as if they had no choice in the matter. Black populist idiots like Kirkpatrick are the modern black equivalent of the Lester Maddoxes and the George Wallaces of yesteryear. Detroit definitely HAS to get rid of him. When they do, they will have a lot to celebrate about their city; after all, Detroit can correct itself.

    Jon, Clinton's conduct, while indefensible, was not grounds for impeachment (I'm a Republican btw). Neither are Bush's crimes impeachable as we gave him the green light to do all that he has done. That it was a crime to begin with is irrelevant. We define what is a crime, and we condoned it.

  3. Actually, Jon, to a small extent I respect Bill Clinton a little in this regard.

    See, he at least respected the oath enough to weasel around it. In his mind, he did not want to actually lie, so he created (in his mind) the legal technicality that a blow job was NOT sex (as defined by Jones’ lawyers) and therefore was answering truthfully when asked, “Did you have sex with Lewinsky?”

    The fact he was avoiding lying under oath demonstrates his respect for the oath. Believe it nor not. Had he been asked…other questions…and said “No,”—then I could see the disregard for the oath.

    Obviously President Bush has not been placed in the same situation, so we won’t know. I suspect, due to what seems to be a total disregard for the law in other areas, if he felt justified to lie under oath as some sort of National Security Issue—he would not hesitate. He wouldn’t weasel like Bill—he would proudly say “No” and even more proudly think of how he lied to protect what he finds a “greater ideal.”

    Jim Jordan – whether it is grounds for impeachment is an interesting question. The U.S. Constitution has most certainly NOT given Bush the green light for what he has done, and whether the populace, even if the majority approves of it, this does not make it non-impeachable.

  4. The fact he was avoiding lying under oath demonstrates his respect for the oath.

    You're kidding, Dagoods, right?

    There is no impeachable offense by the last two presidents. The Clinton debacle was politically motivated, and there has been no real effort to impeach Bush.

  5. Jim Jordan,

    No, I am not kidding. Do you brazenly approach a skunk, trying to poke it with a stick? Or do you walk around it veerrryyy carefully out of respect for what it could do.

    If Bill Clinton didn’t respect the oath, he would have lied outright. The fact he tried to avoid lying under oath (whether he was successful is a different discussion) demonstrates his concern.

    Whether there has been an effort to impeach Bush, and whether he should be impeached are two different questions

  6. "I did not have sexual relations with that woman: Ms. Lewinsky!" - Bill Clinton.

    Now, he forgot to mention that anything less than penetration are not sexual relations. He was giving himself a free pass for missing, I suppose. Just like your skunk analogy, Clinton was being cautious because of the consequences.

    Regarding Bush, I think I heard it said once, "Behind every unimpeachable president is a more terrible vice-president." :-)

  7. "I did not have sexual relations with that woman: Ms. Lewinsky! [sic]" - Bill Clinton.

    Jim, did Bill Clinton say that in his testimony before the grand jury? No. He said it in a press conference. Press conferences are generally not considered sworn testimony.

    William Jefferson Clinton was tried and acquitted of perjury by the United States Senate. Jones' lawsuit was ultimately thrown out on summary judgment.

    Articles of impeachment have been introduced in the House against George Walker Bush. They may or may not be voted upon before January, though rumor has it John Conyers is preparing to get it out of his committee and onto the floor.

    I'm a Republican btw

    At least you admit it now.

  8. Flycandler, you really need to buy a pet rock to take your frustrations out on. :-)

    "I did not have sexual relations with that woman: Ms. Lewinsky! [sic]" - Bill Clinton.

    What is the sic for, by the way?

    P.S. - Jones' lawsuit should read "Jones's lawsuit". (Sic) right back at ya, buddy.


    Eventually, the court dismissed the lawsuit, before trial, on the grounds that Jones failed to demonstrate any damages. However, while the dismissal was on appeal, Clinton entered into an out-of-court settlement by agreeing to pay Jones $850,000.

    Nonetheless, Detroit has to get rid of Kwame and, while they're at it, they should get rid of Flycandler.......even though he's not from there. :-)

  9. You really think Clinton was answering truthfully? Here's the definition:

    For the purposes of this deposition, a person engages in "sexual relations" when the person knowingly engages in or causes -

    1. contact with the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to arouse or gratify the sexual desire of any person;
    2. contact between any part of the person's body or an object and the genitals or anus of another person; or
    3. contact between the genitals or anus of the person and any part of another person's body.

    "Contact" means intentional touching, either directly or through clothing.

    I understand he's trying to weasel, and he wants to say that she had sex with him, but he did not have sex with her. Obviously this is dubious, but let's grant that this is possible. On that theory you might say that he did not engage in 1 if he didn't touch her at all, which is doubtful. He could get around 2 maybe. But I see no way around 3. If he engaged in oral sex his genitals were in contact with a part of her body. There's no way around that.

    I don't know if I'd say Clinton respects the law. He fears the law. So he was smart enough to do some weaseling. At a minimum he intentionally misled the court for the purpose of avoiding prosecution for sexual harassment. He did just what Kwame did, right? Or can you see a way around 3?

  10. I have been thinking about this post for a couple of days now.

    What is our "criminal justice system?" Isn't it a bevy of written codes written by people, interpreted and implemented by people?

    There is so much to this topic that it's hard to know where to begin. I wonder if "criminal justice system" is a misnomer, and that it wouldn't be more accurately labeled "our criminal justice and mercy system." Can a written code fairly dole out both?

    Isn't the "system" a tool in the hands of people, vs. the people are subject to the system? So, is it really the "system" that is failing, or is it the people who are implementing the system that are failing?

    Who gets to decide what is right and wrong? "We the people...?" People lie to protect themselves. Our law against perjury exists to ensure that we can ascertain the truth, but what about the right to privacy?

  11. Jim, pick up a sixth grade grammar textbook and review the proper use of the apostrophe in English. You home school your child?

    After that, we can talk about what a "settlement" means and why it says nothing about guilt or innocence.

    < /snark >

    Dagoods, I'd be interested to see how this subject is treated differently between Common Law (US, UK, Canada) and Civil Law (France, Italy, Spain) jurisdictions. We're used to the adversarial system of the former (the judge as completely impartial to both sides) as opposed to the inquisitorial system of the latter (the judge has a role in investigating the matter at hand).

    Any insights?

  12. But Jon, that was not the definition which was used at the deposition:

    A lengthy debate followed between the two teams of lawyers. It turned out points 2 and 3 were too broad: anyone accidentally brushing their hips against another person could be accused of having "sex." Judge Susan Webber Wright therefore eliminated points 2 and 3. However, notice that point 3 would have clearly included oral sex performed on Clinton. Its removal set the stage for the controversy to follow.

    Unfortunately, the definition still contained ambiguities. Who are the "persons" mentioned in the definition? Clinton interpreted it this way:

    "For the purposes of this deposition, a person [the deponent, in this case, Clinton] engages in sexual relations when the person [Clinton] knowingly engages in or causes:

    1. Contact with the genitalia, anus, groin, breast, inner thigh, or buttocks of any person [that is, any
    other person, in this case, Monica Lewinsky] with an intent to arouse or gratify the sexual desire of any person [Lewinsky];

    Contact means intentional touching, either directly or through clothing."

    Given that understanding, the definition clearly does not include oral sex performed on Clinton. Why? Because oral sex is performed with the mouth, and "mouth" is not listed among the other body parts in point 1.

    The bottom line is that the definition crafted by the Jones’ team was deeply flawed, and allowed Clinton to make legally accurate answers in spite of what actually happened.

    From here

    Curious, eh? This further bolsters Clinton’s ability to weasel out of telling the truth. Notice we all agree oral sex would have violated number 3. But number 3 was removed! This leaves the question of whether oral sex violates number 1. If Oral sex was considered covered in number 1—why have number 3 at all? Like saying,

    “1. Sex is genitals of a Person intentionally touching the anus, mouth or vagina of a Person.”
    “2. Sex is genitals of Person A intentionally touching the mouth of Person B.”

    In that scenario, if we say, “Don’t use definition number 2,” the question is whether that is covered under Definition 1. If it was, definition 2 was superfluous. If it was not, then the fact we violated definition 2 creates the question as to whether we violated definition 1. Fascinating legal machinations. (In the end, it is our duty as lawyers to ask the questions with specificity enough to avoid such complications.)

    Tangentially, think about this. I am aware you grew up in a similar conservative background as I. In a social setting where pre-marital sex was wrong. Immoral. Forbidden. Sin.

    I suspect you know people, as I did, who engaged in oral sex or digital penetration or hand manipulation prior to marriage, under the theory it was not “technically” sex, since it did not involve the very limited form of a penis entering a vagina. Everything BUT that.

    The people I know were attempting to justify it to a God (let alone a court) that they were not having sex. Odd how the definition of sex can change….(doesn’t apply in this case, of course, since we have a specific definition.)

    I would agree it was respect out of fear. This is the reason most people testify truthfully. It is not out of veneration of our system, or a reverence for truth. It is fear of punishment.

    And no, I do not think Clinton answered truthfully. And I do think he committed perjury. I just think he danced

  13. Paul, you ask some good questions. I will have to blog on it, rather than merely respond in a comment.

  14. Flycandler,

    Actually, Jim Jordan is correct. When a person’s name ends in “s”, the correct form of possession is “s’s’. Mr. Jones owning a car would be “Mr. Jones’s.” You can see I screwed it up earlier, too. *grin*

    As to your question about our laws (which I know well) as compared to other jurisdictions (which I do not know as well) are you talking about plea-bargaining in general or perjury?

  15. Thanks for that info DagoodS. I was unaware that the definition had been changed from what I had provided. Misled by a google search. Can you believe it? I found a factual error on the internet.


    "Jones" is one of the exceptions. Trust me, I know of where I speak.


    As to the legal question, I was specifically wondering about the differences in how eyewitness testimony is treated between a system where a judge has to impartially consider testimony and one where s/he is an active inquisitor and able to directly participate in the questioning.

  17. Forgive me for a sec here, Dagoods.


    Jim, it's really classless to take the argument to your blog without telling anyone, turning on comment moderation and preventing a response to your insults.

  18. Flycandler,

    The difference would depend on the judge. First of all, if it was solely a judge, the process would move through far quicker. The judge would only ask the areas s/he felt were relevant, and would not tangent off. They could get to the heart of the matter faster.

    We often talk to jurors afterward. And more common than not, the jurors will ask the two lawyers, “Why didn’t you ask this question?” or “Why did you spend so much time in this area?” We don’t know what they find important. What I may think is a key point—they may make up their mind in a matter of minutes and all the additional evidence presented is a waste of time. Or they may think something was very important—yet we only touch upon it. With a judge, this wouldn’t happen.

    The problem that would arise, though, is how does one limit a judge? We have rules of evidence which keep us from presenting evidence not relevant to the case. Imagine having a judge who was a strict conservative. And you, flycandler, are charged with embezzlement. What if the judge asked, “Are you a homosexual?” Now, this is completely irrelevant to the charged crime—obviously homosexuals are as likely to embezzle or not, as much as heterosexuals or bisexuals.

    And, knowing this judge is a strict conservative, he was far more likely to suspect you of wrong-doing for something that has nothing whatsoever to do with the case! In our adversarial system, I could object, and the information you are (or are not) a homosexual would never enter the case. As it should be. With a judge doing the inquisition, there is a difficulty in preventing this sort of thing happening.

    As to perjury, it would be harder on the witness. What bothers you more—if someone lies to you or someone lies to me? While untruths are bad, it always seems more…personal…when a person lies to you. We see this all the time. Lie to a lawyer? Heck—that’s part of the game, right? Lie to the judge? Whoa—now they are mad!

    Even within the adversarial system, judges ask questions. As the trier-of-fact (non-jury) they are allowed to ask the witness all they want. And often do. In front of a jury, they tend to be more careful. They try to clarify what the lawyers have managed to muddy. *grin*

    I have had to (respectfully) object to a judge’s own question. And, on one or two occasions, the judge has heard my objection, agreed with, and withdrawn the question! But that is part of the adversarial process.

    The biggest problem with judge being inquisitor and the individual making the determination, as far as I see, is what to keep them from asking non-relevant questions and making determinations on non-relevant basis. (Would you want to be an Arab, or Muslim and have George W. Bush be your judge? It wouldn’t matter what you are charged with—we know the verdict would be “guilty” due to your race or religion. Not the facts.)