Every specialty field has its own cache of dirty secrets — things everybody who works in the field knows about that are different than what the average person might expect. Things that are unfair, but to which they’ve become inured. Whether based on ingrained prejudices, lack of funding, or poor organization, it’s just how things go, like it or not. Here are a sampling some of those dirty secrets in the world of criminal justice.
The first dirty secret is that if you want to get a plea from a defendant, set bail too high for him to make, then keep him in jail awaiting trial. A person in jail is more likely to plead guilty than a person out of jail.
Why? Because by the time his case gets to trial, he’s already been in jail for upwards of six months and, especially on first arrest cases, he’s likely to get out of jail sooner if he justpleads guilty than if he waits around to be adjudicated by a jury. Of course, this mostly affects only people who can’t afford to make bail — the poor.
Being in jail awaiting trial carries another serious deficit. How can you prep for your trial when you can’t get a good night’s sleep, a decent meal, or access to the information against you? As more and more evidence is provided on disc or hard drive, the person stuck in a city jail (at least the ones in New York) has no way to look at the evidence against him unless it’s on paper. Even the most outdated Catholic elementary school has more technology than a city jail.
Then there’s the trial itself. If jailed, the defendant is awakened at 4:00 a.m. to get on a bus to be brought to the courthouse. He’s lodged somewhere in the bowels of the building until brought up to the courtroom hours later. Most likely he hasn’t slept well, might not have been given his ration of food, and probably didn’t shower. It’s tough facing the stress of trial even when in tip-top shape, but when you’re sleep-deprived, hungry, and allowed only brief moments with your attorney (who’s got his own share of stress to deal with), it’s a miracle anyone can get through it without cracking up.
The next dirty secret is that for those few hardy souls who dodare to go to trial, if they lose their case, they’ll likely face a greater sentence than if they had just pleaded guilty in the first place. The rationale is, they wasted everybody’s time and now they’ve got to pay for it.
Let’s say the defendant is offered three years on a plea to burglary. If he goes to trial and loses, that number could easily jump to five. If he took the stand at trial and was still found guilty, the judge will assume that he lied and raise the number even more. If he’s found not guilty, the judge will still assume he lied, but just didn’t get caught for it. (I had an acquittal last week and the judge specifically called me back to say, “Ms. Messina, tell your client not to lie on the stand next time.” He hadn’t.)
Another dirty secret: the presumption of innocence doesn’t really exist, at least not in the first instance when a person is arrested and bail is set. Many judges (not all, but most) assume the defendant standing before them is guilty, and although the presumption of innocence is one of the keystones to protecting the rights of the accused, the only people who don’t merely pay lip service to it are the people on the jury (hopefully). Tell a judge or a prosecutor that your client didn’t commit the crime and remind them of the presumption of innocence and they’ll either smirk, or think you’re some kind hayseed. “Poor Ms. Messina, so gullible.” But here’s the thing: Whether I believe my client or not is irrelevant. He’s still entitled to the presumption of innocence. The lack of this presumption hands the prosecutor an inordinate amount of power and leaves defense counsel tilting at windmills.
A recent example: I have a client, let’s call her Ruby, a young, attractive black woman with no prior criminal history, arrested for trafficking in prostitution. This means she was charged with doing more than just prostituting herself.
The judge at criminal court arraignment set bail at $1,000, high enough, but something she could make.
The case was indicted (the evidence submitted to a grand jury who voted a true bill), and she was given a date to next be arraigned in Supreme Court. She came to that date, early, ready to fight her case. We were in front of a tough judge, a former prosecutor who generally raises bail just for the hell of it if the prosecutor requests it.
Knowing this, the prosecutor asked for the $1,000 bail to be raised to $10,000, ten times the amount originally set.
Bail is generally raised only if there are changed conditions since the initial criminal court arraignment, for example the defendant is re-arrested, fails to return to court, or new evidence is discovered, making the case stronger. None of this happened in Ruby’s case, yet the prosecutor requested the increase and the judge obliged by setting a whopping $10,000 bail.
Court officers surrounded my client as she sat next to me at defense table, and although the judge gave me the courtesy of opposing the request on the record, he wasn’t listening. He upped the bail and she was led into the back in cuffs, startled by the swiftness of it all and saying, “But I came back to court.” And, “What about my kids?”
Thus a young prosecutor, barely out of law school with less life experience and hard knocks than Ruby, put a young woman with children in jail for no justifiable reason. She knew we were in front of a “law and order” judge who’d do whatever she’d ask. Chances are if she’d asked for $100,000, he would have done that, too.
This brings up a lot of issues. First, prosecutors have too much power to use it so indiscriminately. Did she really think Ruby wouldn’t come back to court on $1,000 bail when she’d already appeared in court? Did she really think Ruby was such a danger to the community that preventive detention was appropriate? By requesting that much bail, that’s exactly what the result was to Ruby. Or was she just playing a game, flexing her muscles, and showing the defendant who’s boss to help coax out a plea?
I’ll be going to the appellate court to argue that the increase of Ruby’s bail was an abuse of discretion on the judge’s part, but even if my motion is granted and bail is reduced, that will unlikely change judges’ or prosecutors’ actions in the future. They believe in the presumption of guilt, not innocence, and that power is often flexed in ways most prejudicial to the poor.
Now let’s get back to the first dirty secret — once a person is in jail for a crime, he’s likely to plead guilty.
Sure, everybody working in the criminal justice system has pressures. Judges need to manage the hundreds of matters on their dockets; prosecutors have to deal with cases as quickly as possible so they can get on to the next; and even defense attorneys (the lazy ones) might prefer to see a client plead guilty rather than go through the time, effort, and anxiety of having a trial.
But convictions take a heavy toll on people for the rest of their lives. It’s hard enough to get a job when you’re poor and not as educated as the next guy, but try to get a job when you’re all that, plus a felon. You can pretty much kiss most decently paid legal work goodbye.
It’s a devolving game. Of course one of the best ways to beat it is to just not get arrested.
But that’s the other dirty secret (although it’s not so secret anymore): some people, because of their race, or age, or neighborhood, just can’t avoid arrest as easily as others. And they’re the ones who get targeted.
Author: Toni Messina
Source: Above The Law