On Wednesday the 21st of March, the Supreme Court made two landmark rulings regarding the rights of criminal defendants during plea bargains, weighing in on two cases, Lafler v. Cooper and Missouri v. Frye.
These rulings are clearly a significant acknowledgement by the highest court in the land that plea bargains have now become the primary means for executing justice and have also overwhelming replaced the Sixth Amendment right to a fair and public trial for the criminal defendant and therefore deserve their own protections when used against the accused, even when their plea bargain rights have been violated.
As pointed out in the New York Times article referencing the majority opinion made by the Supreme Court,
“Criminal justice today is for the most part a system of pleas, not a system of trials,” Justice Anthony M. Kennedy wrote for the majority. “The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining takes in securing convictions and determining sentences.”
Plea bargains bypass the Constitutional protections afforded the criminally accused under the Sixth Amendment. And yet our system of justice has now become mostly plea deal making for the criminal defendants, rather than the protections afforded through due process where the prosecution must present their evidence in court before a jury and have it see the light of day, beyond reasonable doubt.
As further pointed out in the New York Times article written by Adam Liptak regarding these Supreme Court rulings,
“In today’s criminal justice system,” Justice Kennedy wrote, “the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”
Interestingly enough, it works both ways when it comes to plea bargaining based on deficient and just plain bad plea advice from defense attorneys (often in league with the prosecution against the rights of the defendant in resolving with a plea) that can result in the accused accepting a much worse sentencing as result of trial or a plea that precludes the right to a trial.
The Supreme Court rulings now establish much tighter controls over the plea process.
The pressure of pleading out by a criminal defendant instead of the right to a public trial is often exacerbated by the prosecution knowingly stacking the deck against the accused.
Prosecutors do this by piling on excess charges and allegations as a direct means to force a plea of guilty instead of going through a real trial, where they have to present the evidence against the accused who is assumed innocent until proven guilty, beyond all reasonable doubt.
Plea bargaining short circuits the rights of the accused and due process whole making a mockery of the Constitution and our system of justice. This dynamic is clearly what the Supreme Court has addressed in bringing to bear due process upon the propensity of pleading out and ensuring that the accused has adequate protection when doing so as an alternative to trial or in lieu of trial.
Well I know how critical this became in my own case, where I was indicted by the Department of Justice in April 2010 on 10 felony counts (including five under the Espionage Act for allegedly retaining classified information for the purposes of disclosure to the press), as well as reprisal for reporting violations of the 4th Amendment by the government, the loss of critical intelligence due to the rejection of the best of American ingenuity and innovation, and massive contract fraud, waste, abuse and management malfeasance.
My criminal indictment resulted from a a multi-year, multi-million dollar criminal national security investigation into the sources for the blockbuster New York Times article written by Eric Lichtblau and James Risen, revealing publicly for the first time the existence of a super secret warrantless wiretapping program and contact I had with a reporter from the Baltimore Sun.
My 1st Amendment protected contact with a reporter involved providing the reporter unclassified information about the failed multi-billion dollar boondoggle flagship program at NSA called Trailblazer and the several million dollar alternative program called Thinthread that would have provided superior intelligence in the defense of this country while fully and legally protecting the 4th Amendment rights of Americans, instead of the government's secret program at NSA approved by the White House, launched shortly after 9/11, that bypassed the Foreign Intelligence Surveillance Act and violated the Constitution without any probable cause warrants.
The pressures to plead out in my case were present from the very beginning of the government's egregious, vindictive and retaliatory prosecution against me.
Over a period of three plus years beginning in April 2008, I rejected a total of ten formal and informal attempts by the government to plead out to felonies with prison time and a fine. In fact, the first attempt by the government to have me plead out took place in April 2008 where I was informed that I would face the rest of my natural life in prison for the alleged crimes I had committed, but the government would consider reducing my time if I pled out.
Later it was on the order of 400 months if I didn't cop a plea, then 15-17 years, then some 11 years and then 5 years and then 2 years (all involving pleading to at least a felony for having classified information that I had allegedly retained for the purposes of disclosing to someone not authorized to receive it).
On the eve of my scheduled 13 June 2011 public trial, and after the government's case against me had utterly and spectacularly collapsed under the weight of truth, while under tremendous pressure from all sides during a week of non-stop negotiations, I did finally plead out to a minor misdemeanor for "exceeding authorized use of a computer" after the government agreed that they would formally drop all ten of their original felony charges against me before I would even entertain any thought of a plea offer or plea consideration.
I did so on my terms for something I had already admitted doing (the equivalent of administratively spitting on the sidewalk at NSA with unclassified information), not knowing for sure if the government would actually drop their case against me, and also given the fact that the government still had other options to keep their case going against me much longer (similar to what has happened in the Risen/Sterling Espionage Act case).
If plea bargains have overwhelmingly replaced our system of justice and the 6th Amendment, what does it say when the prosecution never has to go through the bother of due process under our Constitution and present their actual evidence in court against the accused before the public for all to see?
What does it also say when criminal defense attorneys would prefer to play the game of pleading out for their client in 'partnership' with the prosecution and just make a deal instead of defending their client in a trial?
Are we now at a place in this country where brokering plea deals outside the court of law and due process avoids the inconvenience of following the Constitution, and results in the Supreme Court now affording the accused protections for plea bargains?
What have we wrought and what does it really mean for our system of justice in this country?