Starting out, I had a long talk with a public defender who’d been fighting the good fight for decades. Here’s a quote I won’t forget:
Nobody is too innocent for a misdemeanor.
I heard this one from someone else I still respect:
Nobody is too innocent for unsupervised probation.
Neither person would ever shy away from a fight or do anything to force a client into something they didn’t want to do, so it wasn’t advice from plea salesmen who built their reputations on fancy billboards. Taking them as nuggets of wisdom forged from experience, they’re important lessons about human nature and the nature of the beast we call the criminal “justice” system.
Most defense attorneys don’t trust the system. Our clients often don’t trust it too, but it’s usually just the frequent flyers who’ve seen first hand what it does. As a nation, we’ve thrown the punishments so disproportionately out of whack that we shouldn’t expect guilt or innocence to hold up to the pressure our state and federal governments exert trying to quench the prison-industrial complex‘s thirst for new tenants. Our clients aren’t too innocent for a misdemeanor or probation because they lie to us about their culpability, though some might, but because of the coercive nature of it all.
There’s a quote frequently attributed to Mark Twain about never letting the facts get in the way of a good story. I imagine that’s how the general public views my role as a defense lawyer. Like prosecutors try to say in their closing arguments, it’s smoke and mirrors. Except it isn’t. Not at all.
In reality, the prosecutors have it damn near backwards. The state has an incredible amount of power, and it uses that power to force people to confess, not just at the police station shortly after the supposed crime, but during the change of plea colloquy. That’s probably something most people don’t know. You can’t just check the “guilty” box and leave the courthouse. You must provide a factual basis.
The prosecutor offers a plea based on what the state believes happens. The problem is that the state can’t tell its ass from its elbow. Prosecutors see conspiracies where they are none. Accidents can’t just happen in their minds. Someone must pay. The state thinks the worst of the people it persecutes. It demands they confirm that on the record.
With all that power and all that ignorance, the state lusts after convictions that best conform to its oft-mistaken versions of events. The most powerful weapons at its disposal are the sentencing laws. After being plucked from your bed and chained, accused of horrible things and treated like an animal, you’re told you can face trial and a mandatory potential penalty of many years, or you can publicly confess and walk away relatively unharmed.
Sitting in court each week, I hear plea after plea from one hesitant defendant after another. It sickens me. Where’s the truth? With all that pressure, who could possibly know what the truth even is? Prosecutors with few if any relevant life experiences craft offers that require allocutions they only suspect might be true. The facts supporting the plea are taken from the narratives that appear in departmental reports, grand works of fiction produced by the prosecutors’ like-minded comrades.
The show is self-authenticating at the expense of the truth. Agents of the state sit with bated breath for defendants’ words to confirm their grand suspicions. Aha! They did do it! I wonder if medieval inquisitors or early American judges who presided over witch trials believed so wholeheartedly in the confessions they obtained through similar albeit less outwardly civilized means.
We haven’t come so far. The pressure now comes not from immediate torture or even the plain threat of torture, but from deadly serious threats of horrors steadily applied over years by other individuals placed through the same wringer. More than any other aspect of the system, the dominating power of force over truth makes me want to remove myself from the fray. Walking away, however, is an act I know would accomplish nothing. It isn’t going to make them stop. I just wouldn’t have to see it, and others would happily take my place.
What we really need is a fundamental change. The system needs a ground-up rebuild where time, our most precious commodity, is no longer the currency of oppression. Only then will the truth matter.
I suppose the system would collapse without institutional duress, but so what? To endure, the state would have to choose its cases more carefully. I suppose the guilty might go free then, but again, so what? So would the innocent, rational people who currently find themselves stretching the truth to admit guilt before judges who are powerless to change anything.
We should be worried when freedom fighters make cynical quips about innocent men and women pleading guilty. We should be worried that we have a system never lets the facts get in the way of a conviction.