Tuesday Talk*: But Would They Win?

The effort immediately brought to mind the survey about how many unarmed black men were killed by cops.

The results were revealing. Overall, nearly half of surveyed liberals [sic] (44 percent) estimated roughly between 1,000 and 10,000 unarmed black men were killed whereas 20 percent of conservatives estimated the same.

Most notably, the majority of respondents in each political category believed that police killed unarmed black men at an exponentially higher rate than in reality. Over 80 percent of liberals guessed at least 100 unarmed black men were killed compared to 66 percent of moderates and 54 percent of conservatives.

The actual number for 2019 was 27, and that number failed to take into account whether the killing was otherwise justifiable. The point isn’t to trivialize the 27 dead human beings, but to highlight the absurdly high belief that was engendered by activists and allies that bore no connection to reality.

An old push has re-emerged by “experts”** to rid us of the blight of plea bargaining by creating the false impression that it’s the cause of defendants being convicted, as if they would be acquitted at trial if they weren’t coerced into pleading guilty. This is not to say that coercion isn’t real, and that plea bargaining is a critical part of a massively flawed system.

This is to say that plea bargaining overwhelmingly benefits defendants by saving them from trial, where they would overwhelmingly be convicted. Bear in mind, the police get to choose who they arrest, and the prosecution gets to choose whose case gets prosecuted, so the universe of defendants who would go to trial would overwhelmingly be those for whom the evidence of guilt is strong, if not overwhelming.

I decided to do a poll on the twitters asking only criminal defense lawyers what would become of defendants who went to trial.

This was a silly poll, and I executed it poorly. First, I didn’t include “show the results” so that non-criminal defense lawyers could see the outcome without voting. Second, I failed to distinguish between lesser state offenses, serious state offenses and federal offenses, each of which would likely give a very difference answer. Third, a surprising number of respondents failed to grasp that this was about the outcome of trial, not about any variations along the way. I really need to use smaller words in the future.

In a sense, the poll was formulated as something of a trick question. If the numbers were under 50%, who were these criminal defense lawyers pleading more than half their innocent clients guilty? Perhaps these were public defenders handling huge quantities of petty offenses where a quickie plea to a fine or community service got them out of the can, but were they experience lawyers copping the innocent out to murder and rape?

The point isn’t whether criminal defendants are mostly innocent. They’re not. They may not be as guilty as the cops or prosecutors would have it, but that’s a variation on a theme. The question is whether they would be acquitted if they were left with no choice but to go to trial.

Would they?

Don’t assume facts not in evidence, such as going to trial as its currently managed would mean that the mass of cases would be dismissed for the inability to provide a speedy trial. Assume that if every defendant had to go to trial, the system would adjust to accommodate it, such as turning week long trials into one hour trials. Assume that whatever changes came, it would end up the defendants’ burden. Also, bear in mind that even if it meant that 10 petty offenders weren’t prosecuted, what about the defendant charged with serious crimes who went to trial and would get life plus cancer? Can a lawyer trade one client’s life off against another?

Also, this is not an opportunity to share your magic bullet solution to the criminal legal system. I’m sure there’s subreddit for that and they would love to hear your thoughts. Don’t do it here.

Limiting this to serious state and federal crimes, what percentage of defendants who were forced to go to trial for lack of the safety valve of plea bargaining would be acquitted? The “experts” are working hard to create the impression that eradicating plea bargaining would be hugely beneficial to criminal defendants. trying to whip up the unduly passionate to believe that huge numbers of innocent people are being coerced into pleading guilty. Are they right or are they creating the same absurdly false impression that the cops are murdering thousand of unarmed black men every year?

*Tuesday Talk rules apply, within limits.

**By experts, I mean people who have never have the actual experience or responsibiity of representing a defendant charged with a serious offense.