The Sixth Amendment Project by The Advocacy Foundation, Inc.

The e-Advocate Quarterly Magazine

The Sixth Amendment Project Proverbs 12:15

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the assistance of counsel for his defence.

“Helping Individuals, Organizations & Communities Achieve Their Full Potential”

Vol. III, Issue IX – Q-1 January| February| March 2017

The Advocacy Foundation

The Sixth Amendment Project The Indigent Defense Crisis In America

“Helping Individuals, Organizations & Communities Achieve Their Full Potential

1735 Market Street, Suite 3750 Philadelphia, PA 19102

| 100 Edgewood Avenue, Suite 1690 Atlanta, GA 30303

John C Johnson III, Esq. Executive Director ______

(855) ADVOC8.0 (855) 238-6280 § (215) 486-2120 www.TheAdvocacyFoundation.org

Page 2 of 31

Page 3 of 31

“Overall, our hearings support the disturbing conclusion that thousands of persons are processed through America’s courts every year either with no lawyer at all or with a lawyer who does not have the time, resources, or in some cases the inclination to provide effective representation. All too often, defendants plead guilty, even if they are innocent, without really understanding their legal rights or what is occurring. Sometimes the proceedings reflect little or no recognition that the accused is mentally ill or does not adequately understand English. The fundamental right to a lawyer that Americans assume apply to everyone accused of criminal conduct effectively does not exist in practice for countless people across the United States.” GIDEON’S BROKEN PROMISE: AMERICA’S CONTINUING QUEST FOR EQUAL JUSTICE A Report on the American Bar Association’s Hearings on the Right to Counsel in Criminal Proceedings “Copyright 2004 American Bar Association. Reprinted by permission.”

Page 4 of 31

Page 5 of 31

Biblical Authority ____ Proverbs 12:15 (AMP) 15

The way of a fool is right in his own eyes, but he who listens to counsel is wise. Proverbs 11:14 (MSG)

Without good direction, people lose their way; the more wise counsel you follow, the better your chances.

Page 6 of 31

Page 7 of 31

Table of Contents The Sixth Amendment Project

1. The Right to Counsel; 2. The US Constitution; a.

Sixth Amendment

3. State-Mandated Defense Counsel; 4. Landmark Cases; a. b. c. d. e.

Gideon v. Wainwright, 372 U.S. 335 (1963) Strickland v. Washington, 466 U.S. 668 (1984) Padilla v. Kentucky, 559 U.S. 356 (2010) Faretta v. California, 422 U.S. 806 (1975) Brewer v. Williams, 430 U.S. 387 (1977)

5. Plea Bargaining a.

Scope for Coercive Manipulation

b. c. d. e. f. g. h. i. j.

Misalignment of Prosecutor Goals & Incentives Issues Related to Costs of Justice Controversial Plea Deals Other Common Law Jurisdictions Are the Defendantâ&#x20AC;&#x2122;s Rights Protected During Plea Bargaining Obligations of the Prosecutor Is the Oversight Over the Plea Agreement Insured The Role of the Victim in Plea Negotiations Plea Bargaining is Forbidden In Japan

6. Controversial Plea Bargain Cases (A Sampling) a. b. c.

State v. Charles Gampero, Jr. State v. Erma Faye Stewart State v. Patsy Kelly Jarrett

7. Findings of the American Bar Association's Hearings on the Right to Counsel in Criminal Proceedings 8. Recommended Solutions

Page 8 of 31

The Right to Counsel ______

During the past decade, the flood of defendants wrongfully convicted has underscored the importance of providing effective defense services for the indigent. While there are many reasons why our justice systems far too often convict innocent persons, clearly one of the best bulwarks against mistakes is having effective, well-trained defense lawyers. Yet, as Part II of this report demonstrates, defense services in the U.S. are not adequately funded, leading to all kinds of problems. These include a lack of funds to attract and compensate defense attorneys; pay for experts, investigative and other support services; cover the cost of training counsel; and reduce excessive caseloads. Too often the lawyers who provide defense services are inexperienced, fail to maintain adequate client contact, and furnish services that are simply not competent, thereby violating ethical duties to their clients under rules of professional conduct. Meanwhile, judges sometimes fail to honor the independence of counsel and routinely accept legal representation in their courtrooms that is patently inadequate. This report also identifies significant structural problems with indigent defense services since in most jurisdictions there is an absence of oversight to ensure uniform, quality services; sometimes simply a failure to provide counsel; and improper waivers of counsel and guilty pleas accepted without lawyers. ______ GIDEON’S BROKEN PROMISE: AMERICA’S CONTINUING QUEST FOR EQUAL JUSTICE “Copyright 2004 American Bar Association. Reprinted by permission.”

Page 9 of 31

The US Constitution The Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense .”

The assistance of counsel clause includes, as relevant here, five distinct rights: the right to counsel of choice, the right to appointed counsel, the right to conflict-free counsel, the effective assistance of counsel, and the right to represent oneself pro se. A defendant does not have a Sixth Amendment right to counsel in any civil proceeding, including a deportation hearing (even though deportability is often a collateral consequence of criminal conviction).

Appointment of Counsel A defendant unable to retain counsel has the right to appointed counsel at the government's expense. While the Supreme Court recognized this right gradually, it currently applies in all federal and state criminal proceedings where the defendant faces authorized imprisonment greater than one year (a "felony") or where the defendant is actually imprisoned. Defendants do not have a right to appointed counsel if they are not sentenced to actual imprisonment, and could not have been sentenced for more than one year, even if that conviction is later used to enhance sentencing for another crime, or even if the revocation of probation may result in actual imprisonment. Nor does the defendant have the right to appointed counsel to raise frivolous arguments on direct appeal, or to raise any arguments on habeas or other collateral appeal, even if facing execution.

Conflict-Free Counsel Whether counsel is retained or appointed, the defendant has a right to counsel without a conflict of interest. If an actual conflict of interest is present, and that conflict results in any adverse effect on the representation, the result is automatic reversal. The general rule is that conflicts can be knowingly and intelligently waived, but some conflicts are [not] waiveable.

Forty years after Gideon v. Wainwright, indigent defense in the United States remains in a state of crisis, resulting in a system that lacks fundamental fairness and places poor persons at constant risk of wrongful conviction. “Copyright 2004 American Bar Association. Reprinted by permission.”

Page 10 of 31

State-Mandated Defense Counsel The Obligation of States to Provide Constitutionally-Mandated Right to Counsel Services National Legal Aid & Defender Association White paper submitted to the Nevada Supreme Court on September 2, 2008

______ The Right to Counsel Under the Sixth Amendment, the state has an obligation to provide counsel to all those who cannot afford to hire an attorney and who are facing criminal charges that could result in a deprivation of liberty. While the state may delegate this obligation to the counties, it retains an obligation to monitor the counties and ensure that the obligation is met in a constitutionally sufficient manner. When it is not, the state is responsible for stepping in and rectifying the deprivation.

The State Obligation to Ensure that Gideonâ&#x20AC;&#x2122;s Mandate is Met A number of states have chosen to delegate the obligation to provide counsel for the poor to their county governments. Delegating indigent defense function to the counties, however, does not end the stateâ&#x20AC;&#x2122;s obligations. While a state may delegate obligations imposed by the constitution, it must do so in a manner that does not abdicate the constitutional duty it owes to the people. In other words, the state must ensure that the counties are capable of meeting those obligations and that counties actually do so.

The National Trend toward State Funding of Indigent Defense Services Today, a number of factors have led the majority of states to move to state funding and oversight of the right to counsel services. Right to counsel obligations continue to expand, putting increasing burdens on counties to whom those obligations have been delegated. There has been continuing expansion of the stages at which provision of counsel to indigent defendants is required, and so the number of cases that require public defense services has similarly risen dramatically. Furthermore, with the introduction of sentencing guidelines, expanded use of scientific evidence, creation of alternative treatment & problem-solving courts, and other criminal law developments, the amount of work a public defender must do on any given case has also increased. Counties have proven ill-equipped to respond quickly to developments in Sixth Amendment law, the resulting growth in the need for public defense services, and the attendant demand for greater resources. In particular, counties with poor economic forecasts are hard-pressed to provide adequate services. They tend to have higher crime rates, a higher percentage of people qualifying for services, and less resources to spend on competent representation than counties of more affluence. Page 11 of 31

In 1969, the Nevada Supreme Court predicted with amazing precision the problems of the county-based indigent defense system. In Nevada v. Second Judicial District Court, 85 Nev. 241, 245 (1969), the Court observed, “One serious criminal case could literally bankrupt one of our small, financially insecure counties.” The Court went on to note, "No doubt the fixing of such a financial burden upon the several counties has and will cause serious problems in some cases.” It is also noteworthy that the Nevada Supreme Court foresaw the potential for the state to have responsibility for county failings despite the delegation. The Court stated “Should a county be unable to meet an obligation ordered under this rule, a more perplexing constitutional issue would be presented.” In 1969, only four states had state-funded indigent defense systems: Rhode Island, Delaware, Maryland and New Jersey. As a result of the problems and changes noted above, many states that previously delegated responsibility to their counties have opted to take over the oversight and funding of indigent defense services directly. Today, twenty-eight states provide 100% of the funding for trial-level indigent defense services, and an additional six states provide the majority of the funding; the remaining sixteen state’s require counties to bear all or the majority of the responsibility for funding indigent defense services. Administration of trial-level services is provided at the state level in twenty-six states, with an additional eleven states having a hybrid system of administration. In the remaining thirteen states, each individual county administers its own system of public defense.

Page 12 of 31

Landmark Cases ______

Gideon v. Wainwright, 372 U.S. 335 (1963), is a landmark case in United States Supreme Court history. In it the Supreme Court unanimously ruled that state courts are required under the Fourteenth Amendment to the U.S. Constitution to provide counsel in criminal cases to represent defendants who are unable to afford to pay their own attorneys. The case extended the identical requirement that had been explicitly imposed on federal courts under the Fifth Amendment and Sixth Amendment And as stated in Brewer v. Williams, 430 U.S. 387 (1977), the right to counsel “[means] at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him, whether by formal charge, preliminary hearing, indictment, information, or arraignment.”[23] Brewer goes on to conclude that once adversary proceeding have begun against a defendant, he has a right to legal representation when the government interrogates him[24] and that when a defendant is arrested, “arraigned on [an arrest] warrant before a judge,” and “committed by the court to confinement,” “[t]here can be no doubt that judicial proceedings ha[ve] been initiated.”

Ineffective Assistance of Counsel Main article: Ineffective assistance of counsel In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the Court held that, on collateral review, a defendant may obtain relief if the defendant demonstrates both (1) that defense counsel's performance fell below an objective standard of reasonableness (the "performance prong") and (2) that, but for the deficient performance, there is a reasonable probability that the result of the proceeding would have been different (the "prejudice prong"). To satisfy the prejudice prong of Strickland, a defendant who pleads guilty must show that, but for counsel's deficient performance, they would not have pled guilty. In Padilla v. Kentucky, 559 U.S. 356 (2010), the Court held that counsel's failure to inform an alien pleading guilty of the risk of deportation fell below the objective standard of the performance prong of Strickland and permitted an alien who would not have pled guilty but for such failure to withdraw his guilty plea.

Pro-se Representation Further information: Pro se legal representation in the United States In Faretta v. California, 422 U.S. 806 (1975), the Court held that a criminal defendant has the right to knowingly and voluntarily opt for pro-se representation at trial. This right is not per se violated by the appointment of standby counsel. There is no constitutional right to self-representation on appeal.

Page 13 of 31

Plea Bargaining A Plea Bargain1 (also Plea Agreement, Plea Deal or 'Copping a Plea') is an agreement in a criminal case between the prosecutor and defendant whereby the defendant agrees to plead guilty to a particular charge in return for some concession from the prosecutor. This may mean that the defendant will plead guilty to a less serious charge, or to one of several charges, in return for the dismissal of other charges; or it may mean that the defendant will plead guilty to the original criminal charge in return for a more lenient sentence. A plea bargain allows both parties to avoid a lengthy criminal trial and may allow criminal defendants to avoid the risk of conviction at trial on a more serious charge. For example, in the U.S. legal system, a criminal defendant charged with a felony theft charge, the conviction of which would require imprisonment in state prison, may be offered the opportunity to plead guilty to a misdemeanor theft charge, which may not carry a custodial sentence. In cases such as an automobile collision when there is a potential for civil liability against the defendant, the defendant may agree to plead no contest or "guilty with a civil reservation", which essentially is a guilty plea without admitting civil liability. Plea bargaining can present a dilemma to defense attorneys, in that they must choose between vigorously seeking a good deal for their present client, or maintaining a good relationship with the prosecutor for the sake of helping future clients. In charge bargaining, defendants plead guilty to a less serious crime than the original charge. In count bargaining, they plead guilty to a subset of multiple original charges. In sentence bargaining, they plead guilty agreeing in advance what sentence will be given; however, this sentence can still be denied by the judge. In fact bargaining, defendants plead guilty but the prosecutor agrees to stipulate (i.e., to affirm or concede) certain facts that will affect how the defendant is punished under the sentencing guidelines.

A. Scope for Coercive Manipulation Plea bargaining is criticized, particularly outside the United States, on the grounds that its close relationship with rewards, threats and coercion potentially endangers the correct legal outcome. Author Martin Yant discusses the use of coercion in plea bargaining: Even when the charges are more serious, prosecutors often can still bluff defense attorneys and their clients into pleading guilty to a lesser offense. As a result, people who might have been acquitted because of lack of evidence, but also who are in fact truly innocent, will often plead guilty to the charge. Why? In a word, fear. And the more numerous and serious the charges, studies have shown, the greater the fear. That explains why prosecutors sometimes seem to file every charge imaginable against defendants. This tactic is prohibited in some other countriesâ&#x20AC;&#x201D;for example in the United Kingdom the prosecutor's code states: Prosecutors should never go ahead with more charges than are necessary just to encourage a defendant to plead guilty to a few. In the same way, they should never go ahead with a more serious charge just to encourage a defendant to plead guilty to a less serious one. 1

Excerpts from Wikipedia. Page 14 of 31

although it adds that in some kinds of complex cases such as major fraud trials: The over-riding duty of the prosecutor is ... to see that justice is done. The procedures must command public and judicial confidence. Many defendants in serious and complex fraud cases are represented by solicitors experienced in commercial litigation, including negotiation. This means that the defendant is usually protected from being put under improper pressure to plead. The main danger to be guarded against in these cases is that the prosecutor is persuaded to agree to a plea or a basis that is not in the public interest and interests of justice because it does not adequately reflect the seriousness of the offending ... Any plea agreement must reflect the seriousness and extent of the offending and give the court adequate sentencing powers. It must consider the impact of an agreement on victims and also the wider public, whilst respecting the rights of defendants.

John H. Langbein argues that the modern American system of plea bargaining is comparable to the medieval European system of torture: There is, of course, a difference between having your limbs crushed if you refuse to confess, or suffering some extra years of imprisonment if you refuse to confess, but the difference is of degree, not kind. Plea bargaining, like torture, is coercive. Like the medieval Europeans, the Americans are now operating a procedural system that engages in condemnation without adjudication. The extent to which innocent people will accept a plea bargain and plead guilty is contentious and has had considerable research. Much research has focused on the relatively few actual cases where innocence was subsequently proven, such as successful appeals for murder and rape based upon DNA evidence, which tend to be atypical of trials as a whole (being by their nature only the most serious kinds of crime). Other studies have focused on presenting hypothetical situations to subjects and asking what choice they would make. More recently some studies have attempted to examine actual reactions of innocent persons generally, when faced with actual plea bargain decisions. A study by Dervan and Edkins (2013) attempted to recreate a real-life controlled plea bargain situation, rather than merely asking theoretical responses to a theoretical situationâ&#x20AC;&#x201D;a common approach in previous research.[11] It placed subjects in a situation where an accusation of academic fraud (cheating) could be made, of which some subjects were in fact by design actually guilty (and knew this), and some were innocent but faced seemingly strong evidence of guilt and no verifiable proof of innocence. Each subject was presented with the evidence of guilt and offered a choice between facing an academic ethics board and potentially a heavy penalty in terms of extra courses and other forfeits, or admitting guilt and accepting a lighter "sentence". The study found that as expected from court statistics, around 90% of accused subjects who were in fact guilty chose to plead. It also found that around 56% of subjects who were in fact innocent (and privately knew it) also plead guilty, for reasons including avoiding of formal quasi-legal processes, uncertainty, possibility of greater harm to personal future plans, or deprival of home environment due to remedial courses. The authors stated: Previous research has argued that the innocence problem is minimal because defendants are riskprone and willing to defend themselves before a tribunal. Our research, however, demonstrates that when study participants are placed in real, rather than hypothetical, bargaining situations and are presented with accurate information regarding their statistical probability of success, just as they might be so informed by their attorney or the government during a criminal plea negotiation, innocent defendants are highly risk-averse.

More pressure to plea bargain may be applied in weak cases (where there is less certainty of both guilt and jury conviction) than strong cases. Prosecutors tend to be strongly motivated by conviction rates, and "there are many indications that prosecutors are willing to go a long way to avoid losing cases, [and that] when prosecutors decide to proceed with such weak cases they are often willing to go a long way to Page 15 of 31

assure that a plea bargain is struck". Prosecutors often have great power to procure a desired level of incentive, as they select the charges to be presented. For this reason, [P]lea bargains are just as likely in strong and weak cases. Prosecutors only need to adjust the offer to the probability of conviction in order to reach an agreement. Thus, weaker cases result in more lenient plea bargains, and stronger ones in relative harshness, but both result in an agreement. [... W]hen the case is weak, the parties must rely on charge bargaining ... But [charge bargaining] is hardly an obstacle. Charge bargaining in weak cases is not the exception; it is the norm all around the country. Thus, even if the evidence against innocent defendants is, on average, weaker, the likelihood of plea bargains is not dependent on guilt. Another situation in which an innocent defendant may plead guilty is in the case of a defendant who cannot raise bail, and who is being held in custody in a jail or detention facility. Because it may take months, or even years, for criminal cases to come to trial in some jurisdictions, an innocent defendant who is offered a plea bargain that includes a sentence of less time than he would otherwise spend in jail awaiting a trial may choose to accept the plea arrangement and plead guilty.

B. Misalignment of Prosecutor Goals & Incentives Agency problems sometimes arise in plea bargaining in that although the prosecutor represents the people and the defense attorney represents the defendant, these agents' goals may be far from congruent with those of their principals. Moreover, prosecutors and defense attorneys often view each other as colleagues and generally wish to maintain good relations with one another. A defense attorney often receives a flat fee or in any event will not receive enough additional money if he goes to trial to cover the costs of doing so; this can create an incentive to plea bargain, even at the expense of the defense attorney's client's interests. On the other hand, the prosecutor may wish to maintain a high conviction rate and avoid losing highprofile trials; thus, settling a case by plea bargain may further his interests, even if the resulting sentence would not effectively deter crime. As many crimes have very narrow sentencing bands, a prosecutor often has scope to propose whatever degree of "discounted" charges, or substitution of misdemeanor rather than felony charges, to whatever extent they believe would incentivize a defendant to make a guilty plea and accept a speedy conviction, regardless of actual guilt. Plea bargaining can also be argued to be a method used to augment the revenue of a municipality. There are situations in which an offender is apprehended committing a felony yet the officer will charge the offender with an ordinance/misdemeanor rather than with the actual crime which will keep the case from being moved to a superior court. Once there has been a change in venue the municipality will not receive any fees from the fines collected upon the conclusion of the case. Thus municipalities can use plea bargaining as a revenue stream, regardless if justice is subverted and criminals can pay their way out of an otherwise serious charge.

C. Issues Related to Costs of Justice Another argument against plea bargaining is that it may not actually reduce the costs of administering justice. For example, if a prosecutor has only a 25% chance of winning his case and sending the defendant away to prison for 10 years, he may make a plea agreement for a sentence of one year; but if plea bargaining is unavailable, a prosecutor may drop the case completely.

Page 16 of 31

D. Controversial Plea Deals There was public outrage when the media reported that David Westerfield, in a high-profile murder case in San Diego in 2002, was negotiating a deal in which he would reveal the location of 7-year-old Danielle van Dam’s body in exchange for avoiding the death penalty: the deal fell through when her body was found, and the case went to trial. The defense attorney, Steven Feldman, “may be as despised in San Diego as his client”. Defense attorneys defended Feldman, and two ethics experts said there is absolutely no evidence Westerfield's attorneys committed any violations of the California Rules of Professional Conduct. Throughout the trial, Feldman and his co-counsel avoided using the word "innocent". Instead, they challenged every prosecution theory and witness, offering alternative explanations for the evidence, and told the jury that scientific testimony from entomologists would prove that it was "impossible" for Westerfield to have dumped Danielle's body, and that no trace of him was found in the van Dams' house. In his opening statements, Feldman said "We have doubts": doubts as to who kidnapped her and killed her, and doubts as to the cause of death. But was that media report correct? It was based on anonymous sources, and both Westerfield’s attorney and the prosecutors refused to comment, citing ethics guidelines: plea deals are confidential. Later, Paul Pfingst, who was the District Attorney at that time, confirmed the deal. But if he was telling the truth, then he was violating those guidelines and is therefore unethical; and if he’s unethical, then was he telling the truth? (This is analogous to the “liar paradox”.) Significantly, the prosecutor's union political action wing had recently called him “unethical and dishonest”. Danielle’s parents initially denied knowing anything about such a deal, or even thinking of that option, but later said they asked for it. Westerfield, who continued to maintain his innocence, said that the prosecution approached the defense with the suggestion, and his lawyers simply listened to the offer. Most media reports merely said there were negotiations (which are highly likely, given how common plea deals are); it was mainly Pfingst who said that Westerfield wanted the deal. The District Attorney's office withdrew the offer when Danielle's body was found. So, rather than accept a guaranteed conviction, the case went to trial, at a cost of over $1 million, and high emotional cost to the van Dam family. Westerfield was found guilty on circumstantial evidence, and sentenced to death. Plea bargaining is a significant part of the criminal justice system in the United States; the vast majority (roughly 90%) of criminal cases in the United States are settled by plea bargain rather than by a jury trial. Plea bargains are subject to the approval of the court, and different States and jurisdictions have different rules. The Federal Sentencing Guidelines are followed in federal cases and have been created to ensure a standard of uniformity in all cases decided in the federal courts. A two- or three-level offense level reduction is usually available for those who accept responsibility by not holding the prosecution to the burden of proving its case; this usually amounts to a complete sentence reduction... The lack of compulsory prosecution also gives prosecutors greater discretion as well as the inability of crime victims to mount a private prosecution and their limited ability to influence plea agreements.

E. Other Common Law Jurisdictions In some common law jurisdictions, such as the Australian state of Victoria, plea bargaining is permitted only to the extent that the prosecutors and the defense can agree that the defendant will plead guilty to some charges and the prosecutor will drop the remainder. The courts in these jurisdictions have made it

Page 17 of 31

plain that they will always decide what the appropriate penalty is to be. No bargaining takes place over the penalty.

F. Are the Defendantâ&#x20AC;&#x2122;s Rights Protected During Plea Bargaining? The main principle of the plea bargaining is that it must be based on the free will of the defendant, equality of the parties and advanced protection of the rights of the defendant: a) In order to avoid fraud of the defendant or insufficient consideration of his/her interests, legislation foresees obligatory participation of the defense council; b) The defendant has the right to reject the plea agreement on any stage of the criminal proceedings before the court renders the judgment. c) In case of refusal, it is prohibited to use information provided by the defendant under the plea agreement against him in the future. d) The defendant has the right to appeal the judgment rendered consequent to the plea agreement if the plea agreement was concluded by deception, coercion, violence, threat, or violence. G.

Obligations of the Prosecutor

While concluding the plea agreement, the prosecutor is obliged to take into consideration public interest, severity of the penalty, and personal characteristics of the defendant. To avoid abuse of powers, legislation foresees written consent of the supervisory prosecutor as necessary precondition to conclude plea agreement and to amend its provisions.

H. Is the Oversight Over the Plea Agreement Insured? Plea agreement without the approval of the court doesnâ&#x20AC;&#x2122;t have the legal effect. The court must satisfy itself that the plea agreement is concluded on the basis of the free will of the defendant, that the defendant fully acknowledges the essence of the plea agreement and its consequences. Guilty plea of the defendant is not enough to render guilty judgment. Consequently, court is obliged to discuss 2 important issues: a)

Whether irrefutable evidence is presented which proves the defendantâ&#x20AC;&#x2122;s guilt beyond reasonable doubt.

b) Whether sentence provided for in the plea agreement is legitimate. After both criteria are satisfied the court additionally checks whether formalities related to the legislative requirements are followed and only then makes decision.

If the court finds that presented evidence is not sufficient to support the charges or that a motion to render a judgment without substantial consideration of a case is submitted in violation of the requirements stipulated by the Criminal Procedure Code of Georgia, it shall return the case to the prosecution. The court before returning the case to the prosecutor offers the parties to change the terms of the agreement. If the changed terms do not satisfy the court, then it shall return the case to the prosecution.

Page 18 of 31

If the court satisfies itself that the defendant fully acknowledges the consequences of the plea agreement, and he/she was represented by the defense council, his/her will is expressed in full compliance with the legislative requirements without deception and coercion, also if there is enough body of doubtless evidence for the conviction and the agreement is reached on legitimate sentence - the court approves the plea agreement and renders guilty judgment. If any of the abovementioned requirements are not satisfied, the court rejects to approve the plea agreement and returns the case to the prosecutor.

I. The Role of the Victim in Plea Negotiations? The plea agreement is concluded between the parties - the prosecutor and the defendant. Notwithstanding the fact that the victim is not party to the criminal case and prosecutor is not a tool in hands of victim to revenge offender, the attitude of the victim in relation to the plea agreement is still important. The prosecutor is obliged to consult with the victim prior to concluding the plea agreement and inform him/her about this. In addition, under the Guidelines of the Prosecution Service of Georgia, prosecutor is obliged to take into consideration the interests of the victim and as a rule conclude the plea agreement after the damage is compensated.

J. Plea Bargaining is Forbidden In Japan In Japan, plea bargaining is forbidden by law. Sources report [however] that prosecutors illegally have offered defendants plea bargains in exchange for their confessions.

Page 19 of 31

Controversial Plea Bargain Cases A Sampling ______

Nearly 95 percent of all cases resulting in felony convictions never reach a jury. Instead, they are settled through plea bargains in which a defendant agrees to plead guilty in exchange for a reduced sentence. Case 1 – State v. Charles Gampero, Jr. Brooklyn, NY

When Charles Gampero, Jr. was arrested and charged with murder in the second degree in 1994, the 20-year-old insisted he was innocent. While admitting to having hit the victim while trying to break up a fight outside a bowling alley on the night in question, Gampero said the victim was very much alive when he left him. Given numerous unanswered questions in the case -- including statements by the victim's family, who said the man had been the target of harassment and vandalism by unknown parties in the weeks before his death -- Gampero was convinced that a jury would believe his story and acquit him of the charges. But a jury would never hear his case. After jury selection had begun, Gampero and his family say the judge pressured the young man to accept a plea bargain that would send him to prison for seven to 21 years. "[The judge] told me point blank—he said, 'I will give your son 25 to life, so you better take the plea, or if you don't take the plea, he's getting it,'" says Charles Gampero, Sr., whose son is now entering his ninth year in prison. "We took the plea agreement thinking that the judge knew what he was talking about and my son would be home by the time he's 27," Gampero Sr. says. "It didn't work out." ______ Case 2 – State v. Erma Faye Stewart Hearne, TX

In Erma Faye Stewart's case, for example, she says her defense attorney encouraged her to accept a plea bargain when she was arrested in a major drug sweep based upon information provided by a police informant who was later deemed not credible. The 30-year-old mother of two steadfastly maintained her innocence, but says her court-appointed defense attorney didn't want to hear it. "He was, like, pushing me to [plead guilty and] take the probation -- he wasn't on my side at all," says Stewart, who [said] that after spending 25 nights in a crowded jail cell, she decided to follow her attorney's advice. "Even though I wasn't guilty, I was willing to plead guilty because I had to go home to my kids. My son was sick." Page 20 of 31

After accepting the plea bargain and 10 years' probation, Stewart was freed. What she didn't know was that under the terms of her probation, she would be required to pay a monthly fee to her probation officer. Her felony conviction also meant that the single mother was banned from the federal food stamps program. Within three years of pleading guilty to a crime she says she didn't commit, Erma Faye Stewart had fallen behind in her probation payments and been evicted from her home. ______

"One reason that a lot of people plead guilty is because they're told they can go home that day, because they will get probation," says Steve Bright, a defense attorney and law professor who serves as director of the Southern Center for Human Rights. "What they usually don't take into account is that they are being set up to fail." ______ Case 3 â&#x20AC;&#x201C; State v. Patsy Kelly Jarrett Utica, NY

Patsy Kelly Jarrett. In 1973, the 23-year-old North Carolina resident drove to New York with a friend for a summer-long vacation. It was only when the police showed up at her door three years later, Jarrett says, that she learned that sometime during their New York stay, her friend had robbed a gas station and murdered the attendant. While the evidence against Jarrett's friend was concrete, the only evidence against Jarrett was the statement of an elderly witness who said he saw a car at the time of the crime with someone inside. The man did not know, however, whether the person was a man or a woman. To avoid a trial, prosecutors offered Jarrett a plea bargain: If she would plead guilty to the robbery, they would drop the murder charge and give her a five- to 15-year prison sentence. "I told my attorney, 'I can't, I can't do this,'" Jarrett tells FRONTLINE. "And he said, 'Well, my hands are tied. We want to drop the murder charge on you if you'll plead guilty to the robbery.' And I said, 'But I haven't robbed anybody.'" Convinced that the jury would believe her, Jarrett refused the plea bargain and took her chances with a trial. She was convicted and sentenced to 25 years to life. "I believed in the American system of justice," Jarrett says from the Bedford Hills Correctional Facility, where she has spent the past 27 years of her life. "I really believed that, you know, just tell the truth and the judge and jury will hear you and nothing will happen to you. But I was wrongâ&#x20AC;Ś." Twelve years into her prison sentence, Jarrett's case was reversed after the prison warden became convinced of her innocence and asked a new defense attorney to take up her case. The state decided to appeal the reversal, but first offered Jarrett another plea bargain: If she would admit to Page 21 of 31

committing the crimes with which she was charged, she would be sentenced to time served and released. In "The Plea," Jarrett's lawyers describe how they urged her repeatedly to take the plea bargain. She refused. The state won its appeal, and Jarrett's 25 years to life sentence was reinstated. "It's just morally wrong to say you did something you know in your heart you didn't do," says Jarrett, who will not be eligible for parole until 2005. "I might have walked free physically, but in my spirit and in my soul, I would have had to have lived with that the rest of my life. And I couldn't live with me like that. I can live with me better in here."

Page 22 of 31

The Nine Major Findings ______ The Nine Main Findings of the American Bar Association's Hearings on the Right to Counsel in Criminal Proceedings are as follows: I.

II.

Forty years after Gideon v. Wainwright, indigent defense in the United States remains in a state of crisis, resulting in a system that lacks fundamental fairness and places poor persons at constant risk of wrongful conviction. Funding for indigent defense services is shamefully inadequate.

III.

Lawyers who provide representation in indigent defense systems sometimes violate their professional duties by failing to furnish competent representation.

IV.

Lawyers are not provided in numerous proceedings in which a right to counsel exists in accordance with the Constitution and/or state law. Too often, prosecutors seek to obtain waivers of counsel and guilty pleas from unrepresented accused persons, while judges accept and sometimes even encourage waivers of counsel that are not knowing, voluntary, intelligent, and on the record.

Judges and elected officials often exercise undue influence over indigent defense attorneys, threatening the professional independence of the defense function.

VI.

Indigent defense systems frequently lack basic oversight and accountability, impairing the provision of uniform, quality services.

VII.

Efforts to reform indigent defense systems have been most successful when they involve multi-faceted approaches and representatives from a broad spectrum of interests.

VIII.

The organized bar too often has failed to provide the requisite leadership in the indigent defense area.

IX.

Model approaches to providing quality indigent defense services exist in this country, but these models often are not adequately funded and cannot be replicated elsewhere absent sufficient financial support. GIDEON’S BROKEN PROMISE: AMERICA’S CONTINUING QUEST FOR EQUAL JUSTICE “Copyright 2004 American Bar Association. Reprinted by permission.”

Page 23 of 31

Recommended Solutions ______ The ABA Recommends Seven Solutions to the problem of Inadequate Defense for Indigent Clients:

To fulfill the constitutional guarantee of effective assistance of counsel, state governments should provide increased funding for the delivery of indigent defense services in criminal and juvenile delinquency proceedings at a level that ensures the provision of uniform, quality legal representation. The funding for indigent defense should be in parity with funding for the prosecution function, assuming that prosecutors are funded and supported adequately in all respects. I.

To fulfill the constitutional guarantee of effective assistance of counsel, the federal government should provide substantial financial support for the provision of indigent defense services in state criminal and juvenile delinquency proceedings.

II.

State governments should establish oversight organizations that ensure the delivery of independent, uniform, quality indigent defense representation in all criminal and juvenile delinquency proceedings.

III.

Attorneys and defense programs should refuse to continue indigent defense representation, or to accept new cases for representation, when, in the exercise of their best professional judgment, workloads are so excessive that representation will interfere with the rendering of quality legal representation or lead to the breach of constitutional or professional obligations.

IV.

Judges should fully respect the independence of defense lawyers who represent the indigent, but judges should also be willing to report to appropriate authorityâ&#x20AC;&#x2122;s defense lawyers who violate ethical duties to their clients. Judges also should report prosecutors who seek to obtain waivers of counsel and guilty pleas from unrepresented accused persons, or who otherwise give legal advice to such persons, other than the advice to secure counsel. Judges should never attempt to encourage persons to waive their right to counsel, and no waiver should ever be accepted unless it is knowing, voluntary, intelligent, and on the record.

State and local bar associations should be actively involved in evaluating and monitoring criminal and juvenile delinquency proceedings to ensure that defense counsel is provided in all cases to which the right to counsel attaches and that independent and quality representation is furnished. Bar associations should be steadfast in advocating on behalf of such defense services.

VI.

In addition to state and local bar associations, many other organizations and individuals should become involved in efforts to reform indigent defense systems.

Page 24 of 31

Notes ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ Page 25 of 31

Page 26 of 31

Attachment A Budget

Page 27 of 31

The Advocacy Foundation, Inc. The Sixth Amendment Project Personnel and Non-Personnel

Position

Positions

Monthly Salary

Time (%)

Months

12 Month Budget

Administration Executive Director Admin. Assistant

1 f-t 1 p-t

$10,417.00 $1,250.00

25% 50%

12 12

$80,000.00 $15,000.00

Law Group Lead Attorney Admin. Assistants Associate Attorneys Investigators/ Paralegals

1 2 p-t 5 p-t 3 p-t

$10,417.00 $1,250.00 $2,625.00 $1,875.00

50% 50% 50% 50%

12 12 12 12

$80,000.00 $30,000.00 $157,500.00 $67,500.00

Total

$430,000.00

Employee Benefits

Salaries Subject to 12 Month Budget Type of Benefits Medical/ Dental Retirement Social Security State Unemployment Worker's Compensation Other Employment Tax/Benefit

Percent (%) 0.00% 0.00% 7.65% 5.70% 6.00% 1.00%

TOTAL

Total Personnel Cost (per jurisdiction)

Employee Benefits $0.00 $0.00 $251,594.40 $251,594.40 $251,594.40 $251,594.40

by Line Item $0.00 $0.00 $9,623.50 $7,170.44 $7,547.83 $1,257.97 $26,000.00

$456,000.00

Page 28 of 31

Operating Costs Travel Description Mileage

Rate Per Mile $0.51

Estimated Miles 13,725

TOTAL

12 Mo. Budget by Line Item $7,000.00 $7,000.00

Office Equipment & Furniture Description Computers Printers Copier(s) Phones TVâ&#x20AC;&#x2122;s/ DVD Player Office Furniture

Period (Month) 6 6 1 6 2 n/a

Allowance $1,000.00 $250.00 $500.00 $100.00 $875.00 $1,500.00

TOTAL

12 Mo. Budget by Line Item $6,000.00 $1,500.00 $500.00 $600.00 $1,750.00 $2,500.00 $13,850.00

Facilities Costs Description Telephone Utilities (Water, Gas, & Electricity) Rent/Lease of Training Site

Period (Month) Allowance 12 N/A 12

$400.00 N/A $1,500.00

TOTAL

12 Mo. Budget by Line Item $4,800.00 N/A $18,000.00 $22,800.00

Consumable Supplies Description Office Supplies Postage Other TOTAL

Period (Month) 12 12 N/A

Allowance $331.67 $85.00 N/A

12 Mo. Budget by Line Item $3,980.00 $1,020.00 N/A $5,000.00

Page 29 of 31

Non-Personnel Costs Other Costs Description Accounting/Auditing Insurance

Period (Month) 12 12

Allowance $450.00 $600.00

TOTAL

12 Mo. Budget by Line Item $5,400.00 $7,200.00 $12,600.00

Equipment (Rent/Lease/Purchase) Description Van TOTAL

TOTAL OPERATING COSTS (Non-Personnel)

TOTAL COSTS (Personnel & Non-Personnel)

Period (Month)

Monthly Lease

12 Mo. Budget by Line Item

N/A

N/A N/A

$61,250.00

$517,250.00

Page 30 of 31

Page 31 of 31