EVEN THE INNOCENT CAN BE COERCED INTO PLEADING GUILTY

The Rampart Scandal Spotlights The Shameful Legacy Of Plea Bargaining In
American Law.

It's something you never see on TV: the victims of a police conspiracy
pleading guilty to false charges. On TV, the wrongfully accused always
proclaim their innocence to a jury. That's the American way.

Yet consistent with the general pattern of criminal cases in Los Angeles
today, most of the defendants whose convictions have recently been
overturned because of corruption in the police department's Rampart
Division pleaded guilty.

The Rampart cases reveal a sorry truth about L.A. law: Using entirely
lawful threats, the state can make even the innocent plead guilty.

At a recent press conference, Dist. Atty. Gil Garcetti expressed his
concern about this aspect of the Rampart scandal: "It raises the specter,
obviously, that they pleaded guilty to something [even though] they were
telling their lawyer, 'I'm not guilty, I'm innocent.' That raises a
question for everyone in the criminal justice system." Indeed it does.

In Los Angeles, as in virtually every other major American city, most
criminal cases are disposed of by guilty or no-contest pleas. Nationwide,
only 1 out of every 10 criminal cases goes to trial. Why? Is it that 9 out
of 10 defendants fully accept the truth of the state's allegations? Or is
it, to paraphrase "The Godfather," because the state makes offers that
defendants cannot refuse? Consider some of the Rampart cases.

Ruben Rojas pleaded no contest to drug charges that authorities now suspect
may have been fabricated by corrupt police officers. Why would he do this?
Instead of the 25-years-to-life sentence with which he was threatened had
he gone to trial, he received a six-year prison term. Joseph Jones, another
Rampart defendant just released from prison, pleaded guilty to charges
based on corrupt evidence because he also faced a potential
25-years-to-life sentence under the state's "three-strikes" law.

Oscar Peralta (aka Jose Perez) pleaded guilty to assault on a police
officer in a shooting incident, although he believed that he was framed in
the case to cover up improper police conduct. Peralta admitted guilt to win
a promised sentence of time served--10 months in county jail--and avoid the
life sentence he faced had be been convicted at trial. Under California
law, Peralta might have been convicted of felony murder for the fatal
shooting by police of an alleged co-felon in the incident. The district
attorney's office has reportedly decided to join Peralta's effort to
overturn his conviction because of new information uncovered in the Rampart
inquiry.

And the list goes on. Most, though not all, of the Rampart defendants whose
convictions have been overturned pleaded guilty rather than go to trial. We
can expect the same pattern to hold for Rampart cases still under
investigation.

The Rampart cases mock the bland assurances of the U.S. Supreme Court that
innocent defendants will not plead guilty as long as they have lawyers. The
fact is that most defense counsel lack the time and resources to
independently investigate criminal charges and so must advise defendants
based largely on prosecution-supplied information and the attorney's
courtroom experience. When the state's evidence appears strong and the
"trial tax"--the extra penalty that will follow a trial conviction--is
high, attorneys know that a guilty plea is the safest strategy.

The Rampart cases reveal the chasm that yawns between the law's promise of
a trial to all defendants and the reality of contemporary justice. What
kind of a right is it if its exercise can be penalized with extra prison
time? Yet within the broad limits of statutory penalties, current law
allows the prosecution to threaten and courts to impose much heavier prison
terms for conviction following assertion of the "right" to jury trial.

The potential for serious injustice in plea bargaining has increased in
recent years with the advent of a host of new mandatory sentencing laws,
most notably three strikes, and the development of various judicially
approved doctrines. These range from extending liability beyond the
individual's intentional actions to harms resulting from the acts of
co-defendants, or even third parties responding to co-defendants. Fashioned
by legislatures and courts with the worst offenders in mind, these
penalties and doctrines give the state enormous power to encourage pleas.

Those most likely to give up potentially viable defenses because of plea
bargaining are the most typical defendants: people without powerful
supporters or money who are presumed guilty because of past criminal
records. In a nasty irony, the pressure to plead may be greatest when the
prosecution's case for conviction is weakest, because here the prosecution
has greatest incentive to offer a big sentence discount to avoid a trial.

So what should we do? First we need to acknowledge a serious structural
problem with contemporary criminal justice. The police misconduct in the
Rampart cases may be unusual, but the bargaining tactics used by the state
are not.

Next we must consider a range of reforms to diminish the chances of
wrongful conviction by plea bargain. If more money for courts and legal
personnel will make a major difference in the system's ability to provide
trials, we should find the money. Pleas of poverty from the citizens of one
of the wealthiest states in one of the world's wealthiest nations ring
particularly hollow here.

We also must take seriously the potential for abuse that harsh mandatory
penalties and extended liability schemes present in the so-called "give and
take" of plea negotiation. These rules give prosecutors such influence over
sentencing that in some cases they have nearly unilateral authority over
case disposition. Whatever happened to separation of powers or checks and
balances?

To put the problem in larger perspective, recall the disgust that greeted a
recent report on Russian criminal justice abuses. Russian police are said
to routinely torture suspects to obtain confessions, inflicting terrible
physical and psychic harms and producing regular miscarriages of justice.
By contrast, since the late 1960s, U.S. police departments, prodded by
judicial decisions such as Miranda vs. Arizona, have largely forsaken the
use of physical force in interrogations.

We would like to think our California system of justice is superior to
Russia's, and probably it is. But surely the Rampart cases reveal a serious
flaw. For it is hardly a point of pride that in California we only coerce
false confessions by lawful means.

Samuel H. Pillsbury is a Professor at Loyola Law School