Truth, justice, and the American style plea bargain.

• Author: Strutin, Ken
• Position: Introduction through III. The Lafler Curve, p. 825-859 - Miscarriages of Justice

INTRODUCTION

The aspirations of the criminal legal system are sometimes unclear. Truth or factual accuracy is one aim and justice, a balancing of interests, is another. So it is that the Supreme Court has enlivened this debate through the prism of American-style plea bargaining. (1) In the course of two decisions reassessing the proper standard for evaluating ineffectiveness of counsel in the plea negotiation context, the Justices spoke to the core division in the administration of criminal law: pretrial settlement versus fair trial, right to counsel versus due process. (2) The outcome analysis that insures the integrity of plea bargaining is focused on the fulfillment of an extra-constitutional practice, since there is no constitutional right to a plea offer. (3) And it calls for compromising the truth of the case through a plea agreement to lesser charges in most instances or to negotiated facts. On the other hand, the trial process leads to an approximate legal truth without the market place concessions of a bargain. (4) But the balance between justice and truth depends on the nature of the proceeding and the extent to which they are aimed at resolution or fact-finding.

In the 2011 term, the Supreme Court decided two cases, Missouri v. Frye and Lafler v. Cooper, which highlighted whether the Sixth Amendment right to counsel safeguarded the integrity of the trial or encompassed non-trial facets such as the plea bargain. (5) This line of decisions has been followed most recently by Burt v. Titlow, (6) which further defined the role of postconviction record-making in assessing the fundamental question: Did the right to effective assistance of counsel protect the accuracy of the verdict or the fairness of the process? (7)

Underlying the Justices debate over the constitutionality of plea bargaining are the core values of truth seeking in the justice system. It pits the notion of the plea bargain's fact-confirming role against the trial's fact-finding function. Indeed, the hierarchy of accuracy in criminal cases has been changing. (8) Pretrial investigations are undergoing reforms in response to wrongful convictions and reexaminations of forensic science. (9) At the same time the accuracy and reliability of the trial as the final arbiter of correctness, and its ability to purge investigative shortfalls, has been diminished. (10) Lastly, the system's overarching emphasis on pleas versus trials suggests that the focus is now plainly on outcome--compromise and convenience rather than truth, if ever truth were the goal.

From arrest to resolution, every choice of the accused results in the assertion or waiver of an essential right. And, the decision to plead guilty waives the right to have the charges proved beyond a reasonable doubt, a conviction without trial. (11) Indeed, it is the choice of the accused to forgo the crucible of the trial for the compromise of the plea bargain. (12) Still, ineffective assistance of counsel deprives the defendant of making an informed, knowing, and voluntary choice by corrupting the process of information acquisition and exchange. (13) The damage can be so severe that even a fair trial cannot restore or validate the loss of the right to choose. A plea to the charge without concessions, without education, without information as to collateral consequences or punishment options or outcomes of conviction arises from ineffective counsel and the failure of due process. (14) Until recently, the U.S. Supreme Court paid scant interest to the bread and butter of criminal justice, but it is now focusing its full attention on the discount window.

The preference for certainty over accuracy detracts from truth-finding, which has no end. Thus, finality has become an end in itself, preserving the integrity of the trial by limiting postconviction analyses. So the presumption of innocence finishes with conviction; and the sanctity of the conviction is embodied in finality, the presumption of guilt. And yet, the diminishing returns of finality have resulted in the growth of mass incarceration, wrongful incarceration, and the costs they incur. (15)

Through the prism of recent Supreme Court plea bargaining decisions this Article examines their implications for the competing goals of truth versus process. Part I frames the argument about the nature of criminal justice and the tension between fact-finding trials and resolution making plea negotiations. Then, those values are scrutinized in the context of three recent and watershed Supreme Court decisions: Part II Missouri u. Frye, Part III Lafler v. Cooper, and Part IV Burt u. Titlow. Lastly, Part V considers the lessons of wrongful incarceration as guideposts to align accuracy with certainty in the administration of justice.

1. TRUTH OR CONSEQUENCES: THE AIMS OF JUSTICE

   The accused has a fundamental right to a choice, whether to plead guilty or to go to trial. It is the sanctity of that choice that spurred the Supreme Court to screen plea negotiations through the lens of Strickland v. Washington s16 ineffectiveness of counsel standard. (17) There is also the exoteric acknowledgement that plea bargaining is the mainstay of criminal adjudications, a chief product of American justice. So it is that the defense lawyer's role as information creator, rights negotiator, and client advocate are taking center stage in the first act of criminal adjudication. Still, there are tensions between the interests served by a trial verdict and a plea bargain, the cognitive dissonance between accuracy of outcome and the fairness of process as the proper end of justice.

   The plea bargain is a non-constitutional, statutory right (18) to what is essentially a contract of adhesion offered by the prosecution, (19) solicited or crafted by defense counsel, (20) and subject to judicial veto. (21) It is confined to a short menu of plea options independent of a bargain, which are limited to pleading to the top counts of the indictment, nolo contendere, or not guilty by reason of insanity (mental disease or defect). (22) And even a bargained for plea must fit within the statutory guidelines for lesser included offenses, which further restrict the options for conviction and sentence. Moreover, a plea bargain can encompass matters not before the court, such as dismissing open cases, recommending concurrent time to prison sentences or parole or probation violations. Hence, there are many non-factual motivations for pleading guilty unrelated to the truth of the case--most of which concern proportionality of crime to punishment or to proof. Nonetheless, the factors militating in favor of pleas are often systemic: risk avoidance, conservation of prosecution and court resources (trials, hearings, and motions), (23) docket backlogs, and efficiency and timeliness of dispositions. (24)

   Plea bargains ask the defendant to conduct an entire trial in their heads and to judge themselves after some brief legal instruction. (25) Thus, the myth underlying plea bargains is that the accused is in the best position to adjudicate their own thoughts and actions even when they extend beyond their experience and knowledge. (26) The guilty plea cancels the presumption of innocence and becomes proof beyond a reasonable doubt. And yet, this same testificant whose credibility would be mercilessly assailed on cross-examination at trial is for the sake of procedure vested with the qualifications of judge, jury, prosecutor, and defense counsel. (27) Thus, by definition, the plea process is less true than the trial. While the accuracy rates of trials have been called into question, the crucible of the witness chair is infinitely more revealing than the self-assessment of the pleader allocuting from the bar.

   The chief problems that afflict the reliability of a trial's outcome also impinge on the accuracy of the plea allocution, (28) in addition to the unique factors associated with the plea option. A well-counseled defendant might consider the weight of the evidence, credibility of witnesses, legal argument, and viable defenses--all of which militate in favor of legal truth. But without adequate investigation and legal analysis, the decision to plead or to go to trial will be poorly made--pitting against each other the competing values of personal truth, the need to confess or to be vindicated, and the systemic values of equal justice, legal truth, and administrative necessity.

   The plea decision is based on provable and defensible realities. While the terms are negotiated by the lawyers in most cases, the defendant is the decider who must play out the entire trial in her imagination and filter her knowledge of the facts through the penal code, criminal procedure, and evidence law, as well as forensic science. And the experience of her attorney is the knowledge filter that must accurately relay the elements of the offense, the merits of the prosecution's case, the attitude of the judge on law and punishment, the defenses available and their likelihood of success, as well as any legal issues related to the defendant's perception and competency. (29)

   When the defendant decides to plead guilty she enters a new phase. The plea allocution is a staged-confession or a whittled down trial. (30) Proof beyond a reasonable doubt is concentrated into the defendant's acceptance of guilt and the waiver of her trial rights. (31) Thus, the plea is mainly in the defendant's control, while the trial would be in her lawyer's. Entering the plea rests on the defendant's ability to allocute and to respond correctly as part of the court's colloquy; while the trial would have depended on the rules of evidence, procedure and counsel's skills at persuasion and usually without defendant's testimony. So it is that the influences that result in a plea will be different from those that compel the trial track, and neither is based on the objective truth but rather legal compromise. Pretrial innocence and guilt are legal commodities...