Thursday, March 15, 2012

As the wheels of injustice slowly turn

Brian's right. It is sheer madness to even contemplate setting every criminal case for trial.

But why is that?

I can't speak as to how criminal cases proceed outside Texas, but here the system is stacked against the accused who wants to hold the state to its burden. Clients grow weary of returning to the courthouse every three-to-four weeks just to hear their name called and to sign a reset form.

It's a drag. It's inconvenient for anyone who has a job. It puts their lives on hold.

They want their case over with and they want it over with yesterday. But in Harris County, the system is set up to slowly, but surely, grind down those who resist throwing in the towel.

Then there is the trial tax. That perverse device that provides an incentive for an innocent man to plead guilty in order to avoid a harsher sentence. As South Carolina criminal defense attorney Bobby Frederick so eloquently put it:
The reason innocent people plead guilty is that they understand the system is rigged. In as many words, their lawyers explain to them how the system is rigged. You can plead now, and walk away with a light sentence or probation; or you can go to trial and risk spending a significant portion of your life in a prison cell. Some judges, although not all, will punish a defendant for exercising his or her constitutional rights - a probationary or light sentence following a guilty plea becomes maximum and/or consecutive sentences following trial. Defense lawyers advise their clients of this and advise them that the risk is not worth it.
Some judges will do their best to discourage people from exercising their constitutional right to face their accusers by outright threat. I've brought a client to the bench to tell the judge we wanted to go to trial on his case; the judge (now retired) told my client that he was looking at spending the next six months in jail if he went to trial and lost. It wasn't that he was being nice and informing my client of the possible range of punishment in his case - no, he wanted to scare my client into pleading.

If you've ever been in the holdover tank at the Harris County Criminal (In)justice Center, you know that folks are lining up to enter a plea for time served - no matter how weak the case. They'd rather deal with the consequences of a misdemeanor conviction down the road than sit in jail fighting their case.

Judges know this. The prosecutors know this. The cops know this.

They all know that upwards of 90% of criminal cases don't go to trial and that the vast majority of those cases end up in guilty pleas.

And so it continues.

If you know you're not going to have to come to court with any evidence, it makes it easier to harass the citizenry by taking them in on bogus charges. How many times have you seen a person charged with possession of marijuana where the probable cause to stop was not walking on the sidewalk? And what about searching the car because the driver made "furtive gestures?"

We frequently hear commentators lamenting the low voter participation in elections across the nation. We're told the American people are taking their greatest freedom for granted. Some folks will even tell you that you give up your right to bitch if you don't vote.

But where's the concern for the people who aren't exercising their constitutional right to trial by jury? Their right to confront their accusers? Where's the lament as we allow the courts to gut the Fourth Amendment by carving out so many exceptions that the original intent is emasculated?

The greatest tragedy in this county is an innocent person pleading guilty. If we accept things as they are, the machine will never stop.

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