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Punishing Defendants for Exercising Their Right to Trial

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Criminal defense attorneys practicing here in Texas, both in state and federal court, know all too well that it is a common practice for the government to punish defendants for exercising their rights – especially their right to a trial.  This is true despite the clear constitutional right to trial found in the Sixth Amendment to the United States Constitution, which states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

This injustice happens at every level.  It may involve law enforcement officers investigating and making arrests, or the prosecutors (ADAs, AUSAs) tasked with pursuing criminal charges in the courts.  It can also involve the judges who oversee criminal proceedings.  It’s a symptom of the system.

How? Many members of the public – as well as the accused and their loved ones – may be surprised to learn how easy this can play out, since in many courtrooms all these players for the government know each other well.

Police officers testify in court time and again, and they are known to both prosecutors and the court.  Prosecutors in both the state and federal systems appear in the same courtroom before the same judge day after day, year after year.  It is only human that relationships build and camaraderie form.  Some may remember, for instance, the infamous case of Collin County Judge Verna Sue Holland and District Attorney Tom O’Connell having an affair during the death penalty trial of Charles Hood.

For details, read Judge Watch: Court Of Crim Appeals Says Not Unfair To Defendant Hood For Judge And DA To Have Affair During Trial.  Also read, “Questions of an Affair Tainting the Trial, written by Adam Liptak and published in the New York Times on February 23, 2010.

Probable Cause or Plea Deal

Here’s one example of punishing a defendant in a dance between the prosecutor and the judge.  In North Texas, there are courthouse hallway stories of a county justice of the peace who used to retaliate (or threaten to retaliate) against defendants who exercised their right to an examining trial.

What is an examining trial in Texas?  Texas law provided for the accused to have a formal defense proceeding called an “examining trial” early in the criminal case pursuant to Texas Code of Criminal Procedure art. 16.01 et seq.  It is not a full-scale trial, but an evidentiary hearing in open court where evidence can be introduced and a determination made as to whether or not there was “probable cause” for the arrest to have been made.  Read, Examining Trials in Texas.

In the North Texas scenario, the defendant was punished as the judge would find no probable cause and discharge the bond. In tandem with this, the state prosecutor would simply not offer any witnesses and the judge would not require the state to get their witnesses or produce any evidence.

Of course, the judge could have found no probable cause and left the bond. But the bond discharge was meant to punish the defendant.  The no probable cause finding had no legal effect, and the net result was the defendant would have to spend more money to post a second bond after indictment.

ACLU Lawsuit: Prosecutors Dodging Probable Cause Hearings in Coercive Plea Bargaining

Recently, the American Civil Liberties Union (“ACLU”) filed a lawsuit trying to stop this sort of thing over in Arizona.  The matter was brought by the ACLU, representing the Arizona Attorneys for Criminal Justice who represent indigent defendants.

The lawsuit was filed as a federal civil rights class action suit naming the Maricopa County Attorney as defendant.  The ACLU sued Arizona’s Maricopa County Attorney in the United States District Court for the District of Arizona, challenging the Maricopa County Attorney’s Office policy regarding plea bargaining in the Early Disposition Court (EDC). For details, read, “Coerced Out of Justice: How Prosecutors Abuse Their Power to Secure Guilty Pleas,” published by the ACLU on July 21, 2021.

Essentially, the ACLU alleges that prosecutors are guilty of an unconstitutional abuse of the system as they coerce a shocking number of defendants to plead guilty to charges before the state is ever required to turn over any of the evidence purportedly gathered to prove the allegations against the accused.

According to the ACLU’s suit, the prosecutors bring a plea deal to the table very early in the proceedings. The prosecutor tells the accused that if they exercise their right to a probable cause hearing (which is guaranteed to them under the constitution), then they will face a harsher penalty than if they take the deal that is offered to them. This is done with every individual arrested for drugs or lower-level felonies, according to the filing.  The prosecutors blatantly include this threat as part of their formal plea offer with language that includes the offer is automatically withdrawn “if the witness’ preliminary hearing is set,” according to the complaint.

If the threat is successful, then the prosecutor never has to open the file.  No one knows what evidence may – or may not – be supporting the criminal charges.  No one knows how much is there; if it’s authenticated; or if it’s admissible.  This is argued as a violation of both the constitutional right to trial and the constitutional right to due process.

And, according to the ACLU’s complaint, these threats are followed up if the accused declines to take the deal.  From the Complaint’s Paragraphs 10 – 13:

Indeed, if the person simply rejects the first offer, or makes the DCA expend any additional time or resources on the case, or asks the DCA to turn over any discovery beyond a police report, the offer on the table is often pulled and replaced with one substantially harsher.

EDC prosecutors are particularly averse to disclosing evidence. They typically provide nothing more than a police report prior to the preliminary hearing, even if they have other evidence on hand; they call this refusing to “open the file.” Therefore, the people they prosecute must choose between receiving additional discovery after the preliminary hearing or being hit with a substantially harsher plea offer. The harsher offer could include years if not decades in prison and a lifetime of consequences including being barred from certain jobs and losing the right the vote.

In addition, the Retaliation Policy effectively prevents people from securing their pretrial release through an adversarial bail review hearing, which would also take place at the preliminary hearing. This makes their situation inherently more coercive, being separated from their families, unable to work, and hindered from being able to assist in their own defense. Studies show that pretrial detention greatly increases the likelihood of pleading out.

It is no surprise, then, that many people succumb to the Retaliation Policy, forego their rights, and plead out, rather than face a substantially harsher offer.

Why Have Plea Bargaining?

Negotiating a plea, plea bargaining, making a plea deal – these are all ways of describing how a prosecutor offers the accused something in the way of reduced criminal charges or a lesser sentence than what the defendant would face at trial, if the defendant agrees to go ahead and enter a guilty plea.

While it is wise to have an experienced criminal defense attorney advocating for the accused in any plea-bargaining process, this is not mandated by law.  The government attorney can offer a plea deal directly to the defendant without counsel present.  (Big problem, obviously.)

Why do this?  Plea bargains are seen as being efficient.  They help the criminal justice system keep moving along without a bottleneck of criminal trials on the court docket.

And for the defendant, they can be of benefit, too.  If there is a great deal of evidence against someone, for instance, then negotiating a plea bargain for lesser charges or a lower sentence can be a good thing.

In fact, in a recently released report from the American Bar Association, it was confirmed that today “…nearly 98% of convictions nationwide [are] currently coming from guilty pleas.” See, “2023 Plea Bargain Task Force Report urges fairer, more transparent justice system,” published by the American Bar Association on February 22, 2023.  From the ABA:

The report notes that the current plea-bargaining system offers some benefits, including efficiency, cost savings, certainty and a mechanism to incentivize defendants to cooperate or accept responsibility. However, the report found those benefits come at a cost. “The integrity of the criminal system is negatively affected by the sheer number of cases resolved by pleas. Police and government misconduct often goes unchecked because so few defendants proceed to pretrial hearings where such misconduct is litigated.”

Shocking to some will be the confirmation by the ABA Report that Texas (along with New York and Pennsylvania) had a trial rate of less than 3%.  ABA 2023 Plea Bargain Task Force Report, p. 36.

While not every plea is the result of coercion, the reality is that all too often plea bargains today are the result of coercion or threats made by the prosecutor.  While plea deals keep the court dockets streamlined, they also end up sending lots and lots of people to prison.  For details, read “The Vast Majority Of Criminal Cases End In Plea Bargains, A New Report Finds,” written by Carrie Johnson and published by NPR on February 22, 2023; and “Prisons Are Packed because Prosecutors are Coercing Plea Deals. And, Yes, It’s Totally Legal,” written by Clark Neily and published by the Cato Institute on August 8, 2019.

Coercive Plea Bargaining is a Huge Problem

A plea deal becomes a coercive plea bargain when threats or coercion is used to get the defendant to take the deal and enter a guilty plea.  This can involve several things, including a prosecutor (ADA, AUSA) telling the defendant that if the deal is not taken, then more charges will be filed and a more severe punishment will be sought by the government at sentencing.

When this happens, the prosecutor is avoiding having to prove up the government’s case against the defendant.  An admission of guilt circumvents this prosecutorial requirement.  There is no trial.

Likewise, there is no defense against the charges with cross-examination of witnesses or review of documentary evidence for legal sufficiency.  There are no defense challenges to things like illegal searches or unconstitutional seizures.  It’s all over with a plea deal.

Risk of False Confession

Of particular concern for defense attorneys where coercive plea bargaining happens without the benefit of counsel is the opportunity for the government to get a false confession.  All too often, innocent people will admit to doing something they did not do just because they are intimidated and terrified and they think no one will believe them, or maybe they are convinced it will just be easier for their family and loved ones if they take a deal and avoid a trial.  Read, False Confessions: Police Get Them, Prosecutors Use Them – Three Recent Examples and How To Protect Yourself.

Pretrial Detention

Aside from getting a false confession through intimidation, prosecutors may coerce a defendant into a plea deal if they recognize that accused cannot afford bail.  For these people, the temptation will be great to go ahead and plead guilty just to avoid a long pretrial detention while awaiting trial.  This can happen even if there is a very good chance, from a defense attorney perspective, that they will be acquitted.  Read, Out on Bail: Pre-Trial Conditions in Dallas, Fort Worth, And North Texas and Ice Holds, Bail Bonds, And Getting Freed from Jail in Texas.

Withholding Exculpatory Evidence

Another tactic: a prosecutor can coerce a defendant into entering a guilty plea by failing to let the accused know that within the government’s file is evidence that supports an argument of the defendant’s innocence.  This is called withholding exculpatory evidence and it is a serious violation of the defendant’s constitutional rights.  For more, read Prosecutor Withholding Evidence from Defense In Federal Criminal Case; and Prosecutorial Misconduct in Texas Alert: Ethical Rules Held to Have Broader Duty Than Brady to Turn Over Exculpatory Evidence to The Defense.

Need for Defense Attorney in Any Plea Negotiation

No defense attorney is going to take every case to trial.  There are times when a courtroom battle for innocence is necessary and an experienced trial lawyer will be ready to fight.  However, after a defense analysis not only of the state’s case (witnesses; documents; digital evidence; etc.) as well as legal research and an independent defense investigation, the best result for many defendants will be to enter into negotiations with the government on a plea deal.

A good example here is when the accused is facing federal felony charges with mandatory minimum sentences under the United States Sentencing Guidelines.  Read, Mandatory Minimum Penalties in Federal Sentencing and Less Time for Federal Drug Crimes: When Safety Valve Defense Circumvents Mandatory Minimum Sentences Under Federal Law.

Prosecutors should be ready to negotiate a fair result.  The Justice Manual for the Department of Justice points out:

When the Government has a strong case, the Government may offer the defendant a plea deal to avoid trial and perhaps reduce his exposure to a more lengthy sentence.

A defendant may only plead guilty if they actually committed the crime and admits to doing so in open court before the judge. When the defendant admits to the crime, they agree they are guilty and they agree that they may be “sentenced” by the judge presiding over the court — the only person authorized to impose a sentence. Sometimes the Government will agree, as part of a plea agreement, not to recommend an enhanced sentence (such as additional time in prison for certain reasons) but it is left up to the judge to determine how the defendant will be punished.

If a defendant pleads guilty, there is no trial, but the next step is to prepare for a sentencing hearing.

Plea bargaining must be carefully evaluated by the defendant and his counsel.  Any criminal conviction will have serious consequences aside from the risk of time behind bars.  There may be things like restitution, fines, sex offender registry listings, and other considerations (like loss of a professional licensure) depending upon the crimes.  There will be a criminal record following the defendant for the rest of their lifetime.

The defendant may cooperate with the prosecution in other pending criminal investigations or prosecutions and the impact of this cooperation must be evaluated, too.

For anyone charged with a crime in Texas in either the state or federal systems, it is very wise to enlist the help of an experienced criminal defense attorney to advocate for them as soon as possible and definitely before any plea negotiations begin with the ADA or AUSA.

For more, read:


For more information, check out our web resources, read Michael Lowe’s Case Results, and read,” Pre-Arrest Criminal Investigations.”


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