Please Plea Me

The L.A. Times' Dana Parsons tells the incredible case of James Ochoa.

Usually when a prosecutor offers a plea bargain and the defendant declines, insisting on a trial, the prosecutor (and sometimes the judge) throws the book at him—for stubbornly wasting the state's time on such constitutional frivolities (see Richard Paey).

That's basically what happened to Ochoa, accused in 2005 of a carjacking.

Though prosecutors had DNA from the actual carjacker's clothing, and that DNA didn't match Ochoa's, they pushed forward with their prosecution anyway, thanks to two eyewitnesses who insisted Ochoa was the culprit. They then let Ochoa listen in person as one eyewitness implicated him before offering him a plea. Ochoa also got to hear the judge who would be sentencing him promise the maximum sentence allowable by law—25 years to life—if Ochoa insisted on a trial and was convicted. If you've ever wondered how an innocent person could cop to a crime he didn't commit, this is certainly one way it happens. Ochoa took the plea, and accepted a two-year prison term.

Ten months into Ochoa's sentence, DNA testing connected the carjacker's clothing to that of a man already convicted of other carjackings. Prosecutors now admit that Ochoa is innocent, and he's been released from prison.

Under California law, Ochoa is now due compensation for his wrongful conviction. But the attorney general's office is holding back. Their reasoning is a hoot: They say Ochoa is partly responsible for his own wrongful conviction because he "voluntarily" plead guilty to a crime he didn't commit. Deputy Attorney General Catherine Chatman wrote in a report arguing against compensation that, "Mr. Ochoa's fear of a lengthy prison term and the mistaken but positive eyewitness identification appear to have been the truly motivating factors" for his wrongful imprisonment.

So according to Chatman, the real culprit here is Ochoa's cowardice. He wasn't wrongfully convicted because the prosecutor went forward with charges despite the presence of exculpatory DNA evidence (it isn't clear from the article if that evidence was turned over to the defense), he was wrongfully convicted because Ochoa himself didn't have the guts to roll the dice with a 25-year prison term. It's his own damned fault.

I guess my question is, if this is truly what the AG's office believes, why stop at merely denying Ochoa compensation? If Ochoa's confession was uncoerced as a matter of law, then he voluntarily confessed under oath to a crime he didn't commit, didn't he?

Why not now charge him with perjury and obstruction of justice?

And if not, why is Catherine Chatman so soft on crime?

Comments

[thoreau]

Why not now charge him with perjury and obstruction of justice?

DON'T GIVE THEM ANY IDEAS!!!

Compensation isn't enough. A prosecutor should lose his job.

[crimethink]

Well, technically he wasn't even convicted. IANAL, but it seems to me that he fell through a crack in the wrongful-conviction-compensation law. Unless it explicitly includes people who plea-bargain to avoid prosecution for a higher crime, it doesn't cover his situation at all.

In any case, the prosecutor is a total douchebag, and if he didn't turn over the DNA evidence, he should be Nifonged.

[Brando]

I really wish that the wave of anger about prosecutors behaving badly would continue. It's too bad that this can't happen to some white college boys every time. Then the blow hard commentators would have something to chew on for years to come.

[de stijl]

Compensation isn't enough. A prosecutor should lose his job.

If determined to be a wrongful conviction, the prosecutor should serve the term the defendant was sentenced to.

[thoreau]

de stijl-

I disagree. There are two distinct questions here, with two distinct burdens of proof:

1) Should the prosecutor keep his position of authority? On that question, the burden of proof should be on the prosecutor.

2) Should the prosecutor lose his liberty and go to prison? On that question, the burden of the proof should be on whoever prosecutes the prosecutor. (Perhaps I need some additional nouns or pronouns.)

[Fluffy]

Every time you see a "plea bargain abuse" story like this, just remember:

Applications of game theory don't produce just or fair outcomes; they produce the outcomes desired by the person who designs the parameters of the game.

The purpose of plea bargaining is to make life easier for prosecutors, not to obtain just or fair outcomes. As a result we shouldn't be surprised by injustices we find within the system.

[crimethink]

Fluffy,

Well, a more charitable interpretation of the purpose of a plea bargain is to free up public resources for the prosecution of more serious crimes. Even a libertopian prosecutor would plea bargain in some cases.

And, as one who's plea-bargained out of hefty fines for speeding, which I definitely was guilty of, I'll say that I'm happy for the existence of plea-bargaining. Plea bargain abuse isn't a symptom of the existence of plea-bargains; it's a symptom of corrupt prosecutors.

[Pro Libertate]

Well, if states had Censors, too, this would be easy. I removeth thee, Mr. Bad Prosecutor Man.

[martin]

thoreau,

Why restrict yourself to the prosecutors when the system enabling them is fundamentally corrupt?

[crimethink]

And, in this case, it wasn't a case of plea bargain abuse, but rather a prosecutor moving ahead with a prosecution of a person he knew was innocent.

[Dan T.]

Their reasoning is a hoot: They say Ochoa is partly responsible for his own wrongful conviction because he "voluntarily" plead guilty to a crime he didn't commit.

Well, this reasoning may be "a hoot" but it's not inaccurate.

[P Brooks]

And Larry King is planning to give Ochoa an hour on CNN to tell his story.

[Reinmoose]

Clearly if Ochoa would plead guilty to a crime he didn't commit, he must be guilty of something, right? Only a generally guilty person would fear the justice for all people of our great nation!

The prosecutor should be picked up for a crime he didn't commit, intimidated with witnesses who said he did it, and then asked if he'd prefer 2 years in prison or 25.

[Randolph Carter]

P Brooks - are you serious, or is that Paris Hilton bitterness bubbling through?

[Michael Pack]

This doesen't suprise me.In Dui cases a person is pretty much guilty when charged,the proof being a machine that has a 20% margine of error either way.In most states it's inadmissable to challange this in court.In my home state of Ohio a newspaper found that law enforcement officers and attorneys pulled over for drinking almost always refuse to take any tests what so ever.Seems their not to confidant in the process.

[D.A. Ridgely]

Hey, let's not forget that Ochoa owes the state for those nine months of room and board, too. Prisons ain't cheap, ya know.

[Warren]

Prosecutors now admit that Ochoa is innocent, and he's been released from prison.

I'd say that makes this prosecutor one of the most defendant friendly in the nation.

From what I see, prosecutors care only for convictions. Innocence doesn't enter into it. Having a conviction overturned, not only takes one out of the win column, it suggests that the prosecutor is not the infallible minister of divine justice, that he is capable of error. That is something most prosecutors will fight to the death.

[Timothy]

I think the issue is that we reward conviction stats and don't punish wrongful convictions. Prosecutors with high conviction rates are praised, but no one every questions whether or not the convictions are proper. Most of the voting public is fairly persuaded that the system works because most of them never interact with it, so unless there's some high profile Rich White Guy case they never think about wrongful convictions...and the cycle continues.

[crimethink]

Randolph Carter,

Maybe there's such a thing as trickle-down justice!

[Dan T.]

H&R posts like this one are begging for some context. Nobody is surprised that innocent people are convicted of crimes occasionally as no system is going to be perfect.

But we need to know what percentage of convictions are not legitimate, and we also need to decide what percentage of wrongful convictions we are willing to consider acceptable. The occasional anecdote about them doesn't really help us see the big picture.

[D.A. Ridgely]

Prosecutors wield enormous power, but they're not the only ones at fault nor could they stop the plea bargain system if they wanted to. Criminal courts, especially in urban areas, are high volume operations. Anyone ever involved knows that if defendants began to demand trials in significant percentages the system would collapse.

Now I'm going to say something I'll get jumped on for. The overwhelming majority of criminal defendants are guilty and the plea bargain system works well for them. Many repeat offenders know the going plea rate for a felony better than their (court appointed) attorneys do.

That said, sure, any prosecutor who willfully coerced a plea from a defendant he had sufficient reason to believe was innocent or withheld possibly exculpatory evidence from the defense is a bad prosecutor and we can find case after case after case of abuse, incompetence, negligence, etc. throughout the system. But prosecutors generally are just as caught up in the mass market of criminal law as the other participants.

So here's the deal. For the sake of this argument, take drug legalization off the table ('cause it ain't happening any time soon) and the question then becomes how much more are you willing to spend on the criminal justice system to prevent wrongful incarcerations? I don't know what the increased cost would be or how many more innocent parties would go free as a result, but that's the real question here.

[Lamar]

Newsflash: All prosecutors are douchebags. They wouldn't have risen to their position of power if they had any moral bearing. You might be able to dig up an exception or two, but prosecutors are habitually some of the worst people on earth. Unfortunately, our system requires these dickbags.

[Reinmoose]

Dan, agreed. I think it would be an error to take this particular example and go on a tirade about how the entire system just doesn't work at all.

However, in this case, I think it's worth examining the prosecutor, his incentives, and exactly what should happen in a case where the prosecutor has DNA evidence in conflict with their prosecution but continues to try to intimidate the defendant into such a deal.

[crimethink]

Fred Thompson was a good prosecutor, wasn't he? 😉

[thoreau]

DAR-

Much of what you say actually makes sense to me, sad as it is. When you write:

Anyone ever involved knows that if defendants began to demand trials in significant percentages the system would collapse.

I have to ask: Have you ever been involved? Is this an inside perspective? You hint that it is, I'm just curious.

[Dan T.]

However, in this case, I think it's worth examining the prosecutor, his incentives, and exactly what should happen in a case where the prosecutor has DNA evidence in conflict with their prosecution but continues to try to intimidate the defendant into such a deal.

Sure, it probably is worth looking into.

Although we'd want to be careful not to create a situation where any time a prosecutor persues a case where the defendant turns out to be not guilty he finds himself being investigated.

[P Brooks]

Randolph Carter-

It's not so much bitterness at Paris Hilton specifically (or personally), it's a generalized disdain for what passes for news. Kathryn Johnston got about ten seconds of coverage.
My suspicion is that the overwhelming majority of Americans have never, and will never, hear about these sorts of prosecutorial abuses. How much coverage has Nifong's disbarment gotten in the popular press? They were all over the story when it was evil white frat boys oppressing the underclass, but where were the "Nifong Lies, Coceals Evidence" headlines?

[Reinmoose]

Although we'd want to be careful not to create a situation where any time a prosecutor persues a case where the defendant turns out to be not guilty he finds himself being investigated.

An entirely possible scenario, given what happened with medical malpractice insurance. Caution should of course be exercised.

[Dan T.]

How much coverage has Nifong's disbarment gotten in the popular press?

Quite a bit, actually. It was a national story, and illustrated pretty well what happens to you if you take on the big boys.

[crimethink]

Wow, Dan T, you were doing so well.

So prosecuting people you know to be innocent and dragging their names through the mud constitutes "taking on the big boys"?

[Ramsey]

I was foreman of a jury for a case in which the defendant refused to plea bargain. We found him to be not guilty, and the look of absolute malice that sprung to the prosecutors face was priceless. I would serve on a jury every day if I could, just to see that look again.

To Dan T, how are you going to devise a methodology for determining wrongful conviction? Anecdotal evidence of overturned cases is about as close as I think you will get. Like they said in The Shawshank Redemption, ask anyone in here and they are innocent.

[D.A. Ridgely]

thoreau:

Some but not much direct experience, some study, mostly long term friendship with both defense counsel, prosecutors and even a judge or two -- they all basically tell the same war stories.

[toxicroach]

I'm confused about the story line here.

Prosecutor knows about the DNA evidence, + two eye witnesses. Defendant pleads out. 10 months later, the DNA results come in. Defendant is released.

What? Did the prosecutor know or not know about the DNA at the time of the prosecution?

[crimethink]

The prosecutor knew that the DNA was not Ochoa's at the time of prosecution.

Ten months into his sentence they found out who the DNA did belong to.

[Pro Libertate]

Well, one must convict someone; otherwise, one lacks that toughness on crime that we all so fervently desire in our prosecutors.

[P Brooks]

"Anyone ever involved knows that if defendants began to demand trials in significant percentages the system would collapse."

I used to amuse myself, in the days of the 55 mph ("It's Not a Good Idea, It's Just the Law") national speed limit, by contemplating a scenario in which everybody who got a speeding ticket on the interstate highway system on some specific day, like July 4, would enter a plea of "not guilty" and request a trial. It would probably have taken years to clear the backlog of cases.

[Dan T.]

So prosecuting people you know to be innocent and dragging their names through the mud constitutes "taking on the big boys"?

I'm not exactly commenting on whether Nifong deserved his fate, but let's face it, there's no way a small city prosecutor's office is going to have the resources to do battle with a bunch of rich guys and their army of lawyers.

So I think the next time a poor person accuses a rich person of a crime, the ghost of Nifong is going to hang over the head of that prosecutor, even if he believes he has a good case.

[LarryA]

Their reasoning is a hoot: They say Ochoa is partly responsible for his own wrongful conviction because he "voluntarily" plead guilty to a crime he didn't commit.

Well, this reasoning may be "a hoot" but it's not inaccurate.

There's the issue of coercion. If I hold a gun to your head and "encourage" you to "voluntarily" drive faster than the speed limit, should you be ticketed for speeding?

Although we'd want to be careful not to create a situation where any time a prosecutor pursues a case where the defendant turns out to be not guilty he finds himself being investigated.

Why not? If I ever have to use force or deadly force in self-defense, rest assured that the situation will be investigated, even if the force is blatantly justified. And if I screw up and shoot an innocent person, I can count on going to jail.

In every situation where a convicted person is later exonerated there should be an investigation into whether the prosecutor screwed up.

Did the prosecutor know or not know about the DNA at the time of the prosecution? RTA:

(T)he D.A.'s office put Ochoa on trial knowing that DNA testing of the carjacker's clothing had eliminated him. Prosecutors considered that an insufficient reason to do more investigating, largely because the two victims identified Ochoa after cops surmised he might be responsible and showed his photo to them. On parole for a drug offense at the time, Ochoa lived in the area where the crime occurred.

IOW the DNA evidence said Ochoa didn't do the crime, but didn't at the time say who did. The DA figured the only way to get a conviction was to try the bird in his hand.

[tarran]

Dan,

If Nifong had not tried to hide exculpatory evidence, he wouldn't have been disbarred or have lost his job.

No matter how wealthy the defendants were they could not have gotten at Nifong had he bothered to go through the motion of following the rules - rules, I might add, that are very blatantly slanted in favor of prosecutors being able to secure false convictions.

Nifong was so confident in his power to fuck up anyone in his way that he got sloppy.

[Pro Libertate]

Dan T.,

But Nifong did things that were openly unethical, illegal, and distasteful. If he'd fought the good--and ethical--fight and some rich kids got away with an obvious crime, I'd be annoyed, too. But it's unethical and, I believe, a crime to sit on exculpatory evidence. And that's just one of his sins.

He's a poster child for abuse of power, not for rich people being able to buy better justice. If anything, in this particular case, the relative wealth of the accused versus the accuser counted against them.

Nifong should not be practicing law, period. He violated his ethics as an attorney and his obligations as a public figure. I know he's just one of many prosecutors who abuse their positions, but they should all be disbarred and/or prosecuted when caught.

Incidentally, defense counsel aren't all wonderful, either. Making up lies for your client to tell (or on his behalf--"It was devil worshipers that done it") is also unethical.

[Dan T.]

There's the issue of coercion. If I hold a gun to your head and "encourage" you to "voluntarily" drive faster than the speed limit, should you be ticketed for speeding?

But a prosecutor cannot send somebody to jail - he can only present the state's case. It's called a "bargain" because the state and the accused agree to a mutually satisfactory arrangement whereas a trial will result in one side not getting anything.

Although we'd want to be careful not to create a situation where any time a prosecutor pursues a case where the defendant turns out to be not guilty he finds himself being investigated.

In every situation where a convicted person is later exonerated there should be an investigation into whether the prosecutor screwed up.

I'm fine with that, but what about the situations where charges are pressed but the accused is found not guilty?

My point here is not to excuse bad prosecutors, but rather to point out that prosecutors need to have the ability to work their cases without the fear of investigation if they happen to be wrong every now and then.

[Dan T.]

PL and tarran - yes, I don't mean to come across as defending Nifong, only that I think defense lawyers will use an "attack the prosecutor" approach along with the tried-and-true "attack the victim" approach in the future when a wealthy client is charged with a simlar crime. Even a totally honest DA would have to be a little nervous about taking that plunge.

[Andrew]

Pro Liberate--

I'd disagree on the defense counsel argument. For one reason -- one thing defense counsel never ask their clients is "are you guilty?". They don't want to know. Because if the answer is yes, then they're lying before the court by proclaiming their client's innocence. If a defense counsel finds out his client is guilty (before the end of the trial) and the client continues to lie to the court, the defense counsel has no choice but to resign from the case.

But if they don't "know" as a fact the defendant is guilty.... then it's up to the prosecution to prove them guilty beyond a reasonable doubt. Defense can throw out reasonable theories.

[D.A. Ridgely]

Dan T.:

Defense counsel aren't going to start attacking prosecutors in light of the Duke case. It was a high profile case from the onset and, like all exceptional cases, well, an exception.

Andrew:

I think you've been watching too many episodes of Rumpole of the Bailey. A defense attorney can and often does know his client is guilty but still zealously defend him at trial. What he can't do is put the defendant on the witness stand knowing his client is going to lie under oath. The prosecution still has the burden of proof beyond a reasonable doubt for every element of the criminal charges the defendant is facing, and the defense attorney can do anything short of suborning perjury or offering evidence known by him to be false to seek an acquittal.

[Dan T.]

Dan T.:

Defense counsel aren't going to start attacking prosecutors in light of the Duke case. It was a high profile case from the onset and, like all exceptional cases, well, an exception.

I agree that I don't think it will happen on anything resembling a regular basis.

[Pro Libertate]

Andrew,

It is okay and often appropriate for defense counsel to come up with alternative interpretations of the evidence before the jury. However, to do so with knowledge that the information is false is unethical. It's a weird world, our criminal justice system, where monkeys covering their ears and eyes are a key component 🙂

A good defense counsel, however, really should focus more on poking holes in the prosecution's case than in coming up with alternative narratives. The defense has--as it should--some significant advantages at trial. Those can be offset by the disparity in resources between the state and the defendant, true, but they are substantial, nonetheless. Poking holes even when you suspect that your client is guilty is ethical.

The only way a defense counsel can morally deal with that fact is to view himself as standing between the state and the rest of us. Prosecutors must prove their cases beyond a reasonable doubt, even when every knows the jerk did it.

[Toxic]

If I remember my professional responsibility class correctly, if you know your client did it, then you cannot argue innocent. You can argue mitigation, it wasn't actually a crime, w/e, but you are violating your oath if you say that he didn't do whatever he is charged with. You cannot lie to the court.

Hot tip: When lawyers drop out of cases all of a sudden because of a sudden need to spend time with their families or tend to their practice... see above.

[thoreau]

Does the law recognize a difference between a lawyer who says "My client did not do it" and a lawyer who says "The prosecution's evidence does not prove that my client did it"? A lawyer could know that his client is guilty, but also know that the evidence is weak, so he can honestly say that there is reasonable doubt.

How do defense lawyers deal with that?

[daniel k]

Mr. Ridgely: you forgot free health care while he was in jail! Also, I would add transportation and the attendent insurance. And free laundry. And I bet he didn't pay any sales or income taxes on any of this stuff!!! And who knows how much CO2 this guy emits (it is Kalifornia).
As I've said before, its a legal system, not a justice system

[daniel k]

Hey, let's not forget that Ochoa owes the state for those nine months of room and board, too

Free electricity, free electricity - I forgot free electricity. Free water. Free toliet use! free toliet paper!

[toxicroach]

It's one thing to point of how weak a case is. It's another thing to promote the idea of innocence.

One of those things that make tons of sense to lawyers but probably don't make much sense in the general moral sense.

Lawyers are advocates. We get paid to argue for people. In order to do it as a career, you have to be willing to argue things that you don't believe are 1)morally right 2) good interpretations of the law or 3) that you really give one fig about. You argue what you have to argue as the proponant of your clients interest. It is the judge and the jury whose job is deciding moral value and truth; your job is to present the best case you can for your client within ethical bounds. This problem leads to a level of comfort with a See No Evil/Hear No Evil type of mindset. If you don't end up pushing most of the moral burden onto other people you can't fulfill the function you need to fulfill. It's the worst system, except for all the others.

Hence, lawyers comfort with witholding information, a abiding belief that curosity kills the cat, and general reputation for being slippery sharks.

[thoreau]

I understand the importance of what defense lawyers do, toxicroach. What I'm asking is whether the ethical code that some posters here have referred to would allow a lawyer to argue that there's reasonable doubt while knowing that their client is guilty. Some of the things being said in this thread seem contradictory to a non-lawyer, with some posters insisting that a lawyer can't defend a client whom he knows to be guilty, while others insist that a lawyer can indeed do so.

I'm just asking whether they can get around these issues by promoting reasonable doubt.

FWIW, I have no problem with lawyers zealously defending their clients. Otherwise our system would break down completely.

[Pro Libertate]

thoreau,

The idea is that if you're confident that your client is guilty, you can retreat to just poking holes in the prosecution's case. That's legitimate, because the state has the burden of proving its case; the defense has no burden at all, generally speaking. The fact that prosecutorial misconduct is such a systemic problem makes it easier for defense counsel to play hardball, too.

You can also encourage your client to plea bargain or just confess and be done with it.

[D.A. Ridgely]

What I'm asking is whether the ethical code that some posters here have referred to would allow a lawyer to argue that there's reasonable doubt while knowing that their client is guilty.

Unequivocally, the answer is yes. In fact, failure to do so probably constitutes "ineffective assistance of counsel" and grounds for reversal of a conviction and possible disciplinary action against the trial defense counsel.

I think Andrew has confused the British system with the American system. No, lawyers can't ethically lie to the court (or a jury) -- not ever. So, no, a lawyer who knew his client to be guilty could not just baldly say "My client is innocent." But that's not how it works 99% of the time, anyway. Lawyers are not witnesses and cannot offer testimony. Opening statements and closing statements go to what the prosecution can and says it will and subsequently does or does not prove, so any statement of guilt or innocence by opposing counsel would almost always be made in that context.

Okay, so in the case of the client believed by defense counsel to be innocent, he could ethically bang on the table about his client's innocence all he wanted and in the case of the client known to be guilty, he couldn't. But there are ways of coming so close to saying one's client is innocent without actually doing so that it doesn't matter.

BTW, even the ethical prohibition against putting a known guilty client on the stand to perjure himself and proclaim his innocence is controversial and there are those who believe everyone is, in effect, entitled to try to lie his way free.

[James Anderson Merritt]

Blaming the victim's cowardice for his misfortune in a system that depends on that very cowardice is no more surprising than hearing the federal Vice President claim that his office isn't part of the Executive Branch, even though it is mentioned specifically in the constitutional clause that summarizes the Executive Branch (Art II, Sec 4, concerning impeachment, which begins, "The President, the Vice President, and all civil officers of the United States..."), in addition to being defined within the Article that defines the Executive Branch.

Me sure am liking politics in Bizarro World.

[parse]

But a prosecutor cannot send somebody to jail - he can only present the state's case. It's called a "bargain" because the state and the accused agree to a mutually satisfactory arrangement whereas a trial will result in one side not getting anything.

Dan, the court case is "The State vs. John Q. Defendant." Those are the two sides. If John Q. is trully innocent, and he prevails at trial, I don't think it's correct to say "one side gets nothing." The defendant gets an acquital, and the state gets justice, which is what the state is supposed to be looking for, justice (not convictions).

[M]

one thing defense counsel never ask their clients is "are you guilty?". They don't want to know. Because

My layman's understanding of why they don't want to "know" is that the client isn't qualified to make that determination, even if he believes he is qualified. Only the jury is qualified.

[M]

And that's (as I understand it) because guilt = the relevant intersection of facts + law. The defendant cannot be presumed to know all the relevant facts nor all the relevant law as it bears on all the facts. His opinion therefore is worthless, which is why his counsel does not solicit it.

Again, from a layman.