Another Cop Out (Cut)

As you can see there are a lot of people taking pleas in this book--much like the system itself...

Judge Kiesel nods as the court officers lead Blue away. Legal Aid steps back from the defense table, shaking his head--another small loss in a daily diet of defeat. I’m glad Blue’s wife wasn’t in the courtroom, but I pity Legal Aid having to go outside to try to explain to her what just happened and why. I know from experience that she’ll cry and wail and blame Legal Aid for selling her husband out.

$750 bucks--the difference between what happened to Blue and what happened to the next guy to step up to face Kiesel.

Number 50-something on the calendar is free. Tall, white and angular, and dressed in a nice button down shirt and a clean pair of blue jeans, Mr White steps up from the third row in the audience. He looks Albanian.

Like Blue before him, White is pleading guilty.

Unlike Blue, though, Mr. White is pleading to a harassment violation, a non-criminal offense that is often offered when the complainant doesn’t want to go forward and the defendant is able to afford bail--a DA’s way of squeezing out a conviction on an untenable case.

The disparate treatment of Blue and White demarks the essential divide in the system: it’s not about race-- it’s about cash.

Instead of being coerced , like Blue was, into pleading guilty, White bought his freedom for five hundred dollars, (each judge at arraignments sets bail according to their own strange whims) and in doing so, he bought time and breathing room.

Because White wasn’t languishing in jail, his lawyer had the chance to investigate the facts, fight the case, and wait out the non-criminal offer that usually comes around eventually in most misdemeanor cases.

It’s a quick proceeding.

White’s lawyer tells Kiesel he’s going to plead guilty. Kiesel hardly glances at the man.

“Are you pleading guilty because you are in fact guilty?” she asks half rolling her eyes at the inanity of the oft-repeated question.

“Yeah.” says Mr. White.

“Anyone force you or threaten you to coerce you into entering this plea?” Kiesel asks utterly uninterested.

White knows the drill.

“Nah.” he says without prompting from his lawyer.

Kiesel imposes the sentence the prosecutors recommend—a promise to stay out of trouble for a year and abide by an order of protection.

The whole process takes less than a minute.


Anonymous said...

Unfortunately, the Supreme Court does not recognize this ep violation based on indigency...

Tom McKenna said...

Nor could they because the logic of such a position reduces to a requirement that the state give you the most expensive lawyer in town. If they don't, and you could have hired the more expensive (and better?) lawyer but for your poverty, you'd be able to assert an EP violation.

Clearly the SCOTUS could not take us down that road. After all, the "right" to appointed counsel (as opposed to the right actually acknowledged in the constitution: to have counsel) is constitutionally extra-textual to begin with, so expansion of it is naturally disfavored.

Indefensible said...

Hey Tom,
Interestingly, in England, that's exactly how it is (though it is changing). There, if you were charged with a crime and were indigent, the government would pay for any lawyer who'd agree to take your case. That is to say, if you could get some partner at Fried, Frank to do the case, the government would foot the bill.

May not be an EP issue, but certainly a superior assignment system.