Archive for June, 2012

When the Innocent Plead Guilty

Wednesday, June 6th, 2012

I’ve often been told, "Well, if he pled guilty he must have done it!"  This is wrong on so many levels that I don’t know where to begin…  

Certainly, in DUI cases, the reasoning is wrong as drunk driving is somewhat unique among criminal offenses.  There are two offenses (in most states carrying identical penalties), and most individuals arrested will be charged with both: (1) driving under the influence of alcohol, and (2) and driving with a blood-alcohol level of .08% or higher.

Problem #1:  Since individual tolerance varies, it is difficult to presume impairment from a blood-alcohol level.  Further, at what point does the driver know he is impaired?

Problem #2:  How does the driver know what his blood-alcohol level is when he’s driving?  Can he tell the difference, for example, between .07% and .08%?  (Well, you say, he shouldn’t have been driving if he was even close.  So do we convict citizens who are "close" to driving over the speed limit?)

But there are larger issues involving those who plead guilty to DUI — issues involving the increasingly coercive nature of the judicial system, as a respected retired federal judge has noted today:

Why Do Innocent People Plead Guilty?

Huffington Post, June 6 – Prison is Hell for the guilty; it is difficult to envision what it must be like for the innocent. Brian Banks is yet another story of a person not only wrongfully imprisoned, but imprisoned based upon his own "voluntary" act. He was exonerated after serving five years for a rape he did not commit. How and why do innocent people confess or plead guilty to crimes that they did not commit? Roughly 20 percent of those that have been exonerated confessed to the crimes with which they were charged and convicted. Most of those involved persons who had actually gone to trial, but we have no way of knowing how many there are who merely entered guilty pleas through bargains and never appealed as a result. Although we hear and read about criminal trials, the reality is that only about 5 percent actually go to trial and the balance are resolved by plea agreements…

What apparently happened here (based upon his version) is all too typical of what happens in the criminal justice system. I call it the "Ins of Court" — intimidation by the prosecution and incompetence by the defense. The defendant, frightened, most often poor, uneducated, a minority member is advised that a trial is likely to end with a conviction and a long sentence, whereas a plea will guarantee a much shorter sentence. Despite his protestations of innocence, the defendant seeks guidance frequently from an over-worked, underpaid defense lawyer who would much prefer a quick deal rather than a long drawn out trial. Of course, not all defense counsel fit that description. Many do not, but even the best and most devoted are required to put this draconian choice to their clients — a guaranteed short sentence versus a potentially long one — possibly life in prison.

The problem is further complicated by the fact that it is more difficult to set aside a guilty plea than a conviction after trial. Once a person has admitted guilt and spelled out the details of the crime sufficient for the court to accept the plea, the chances of reversing such convictions are very slight if not nil. Most do not try. Mr. Banks had the fortitude to continue his fight even after he had been paroled and was fortunate in eliciting a recantation from the complaining witness. Such instances are very rare. Thanks to the tenacity of the California Innocence Project it happened here.

The reality is that without plea bargains the entire criminal justice system would come to a halt. Charges would be tried ten years after they were made. The only solution is vigilance by all those involved. The prosecutor, defense counsel and the court must be satisfied of the defendant’s guilt before urging or accepting a plea. I recognize that there is no avenue to absolute certainty because the knowledge of guilt or innocence lies with the defendant, but all involved must strive not to imprison the innocent — even those who profess to be guilty.

It is common in drunk driving cases for the prosecution to offer the defendant a plea bargain, for example, of a guilty plea to the .08% charge with a dismissal of the DUI charge, and a promise of only two days in jail — with the understanding that if he goes to trial and loses, the judge will sentence him to 60 days in jail.  (Note: Most judges dislike trials, as they back up their busy caseloads, so are anxious to dispose of cases by plea — and inclined to punish those who "waste the court’s time".  Accordingly, it is often commonly understood in any given courtroom that the sentence will be far worse if you refuse the plea bargain offer and insist on your constitutional right to jury trial.)

So….The defendant thinks he is probably innocent and his attorney tells him that you has a good case:  in his opinion, he has a 50% chance of being acquitted on both counts.

What would you do?


Crossing the Thin Blue Line

Sunday, June 3rd, 2012

I’ve posted repeatedly in the past about the double standard in DUI law enforcement, and more particularly on the "pass" cops get when they drive drunk.  See for example, Guarding the Guardians, The Blue Cover-Up, The Thin Blue Line and The Unwritten Code.

It would appear that this "unwritten code" is not limited to the U.S….

Rookie Cop ‘Harassed and Berated’ After Arresting Off-Duty Officer

Toronto, Canada.  May 29 – It’s an impaired driving case like thousands of others except it involves a rookie Toronto police officer who crossed the thin blue line and paid the price.

Const. Andrew Vanderburgh was “harassed and berated” by fellow officers because on Nov. 28, 2009, he arrested and charged an off-duty police constable with impaired driving and having a blood-alcohol level over 80 milligrams, according to an internal police disciplinary ruling.

Some officers also allegedly called Vanderburgh a “rat,” Justice Paul Reinhardt wrote in a pre-trial ruling.

On Tuesday, Vanderburgh was in Old City Hall court to testify at Breton Berthiaume’s long-delayed impaired driving trial. He declined to comment except to say that while he does not regret charging a fellow officer, the fallout has been difficult.

Also in court was Const. Suhail Khawaja, who accompanied Vanderburgh in his squad car the evening of the arrest.

That night, Vanderburgh and Khawaja went to Berthiaume’s home in High Park after a 911 caller reported seeing someone driving erratically on the Don Valley Parkway, and had recorded the licence plate number.

Some officers there “took exception to a police officer being charged or investigated,” Crown Attorney Mary-Anne Mackett told court Tuesday, providing an overview of the convoluted 2½-year-old case.

Reinhardt, who is no longer the judge in the Berthiaume case, said in his pre-trial ruling that disclosure he reviewed alleged Khawaja “refused to assist Constable Vanderburgh in the arrest and preparation of paperwork at 22 Division.”

“Constable Khawaja is purported to have stated on more than one occasion that evening to different informants that he wanted nothing to do with the arrest of a fellow police officer,” Reinhardt wrote.

Vanderburgh, meanwhile, continued to pay a price.

After Berthiaume was released, Vanderburgh drove a marked police vehicle back to his division and was followed by a 22 Division cruiser driven by Const. James Little.

Little pulled him over and gave him a ticket for allegedly disobeying a red light, which was later dismissed. Last year, Little pleaded guilty to one count of discreditable conduct under the Police Services Act.

Little chose “to disregard his professional obligations and embark on a course of retaliatory action against a colleague performing his sworn, lawful duty,” Supt. Robin Breen wrote in his ruling.

“He abused his position to express his personal displeasure about his colleague’s arrest of an off-duty police officer.” Little was docked 20 days’ pay.

Two other officers, including a staff sergeant who failed to intervene, were disciplined in the incident. One was also docked 20 days’ pay, the other 15.

Apparently, the only difference we have with our northern neighbors is that the Canadian cops are punished for their conduct.