George Will: Plea bargaining nullifies the right to trial

 George Will writing in the Washington Post:

Herewith a two-question quiz: What is the only right affirmed both in the Constitution of 1787 and in the Bill of Rights? And what governmental practice produces the most pervasive and glaring civil rights deprivations?

The answer to the first question is: the right to trial by jury. (Article III, Section 2: “The trial of all crimes, except in cases of impeachment, shall be by jury”; Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”) The answer to the second is: plea bargaining as currently practiced, which often effectively nullifies this right.

A just-published report by an American Bar Association task force says plea bargaining has not only become the primary way to resolve criminal cases, “some jurisdictions have not had a criminal trial in many years.” Think about that: Years can pass without a defendant exercising the constitutional right to an adversarial process conducted in public in front of a neutral judge and a jury of the defendant’s peers.

Eighteen percent of the more than 2,000 persons known to have been exonerated of crimes — not just found to have been convicted in flawed legal proceedings: exonerated — had pleaded guilty. As of 2020, according to the Innocence Project, of 375 convicts exonerated by DNA evidence, 11.7 percent had pleaded guilty. Many of the exonerees, caught up in an intimidating process that can be fast-moving and bewildering, were from racial minorities.

Last year, 98.3 percent of federal criminal convictions, and about 95 percent in the states, resulted from bargained guilty pleas. Why? To a significant extent, coercion.

This often begins with detention in frightening conditions: To be arrested is to be suddenly plunged into control by a government speaking an often arcane legal language. Then there is “stacking” — prosecutors piling on charges which, in a context of mandatory minimum sentences, force defendants to choose between risking potentially life-ruining trials and pleading guilty to lesser charges, even if innocent.

This “trial penalty” for exercising a fundamental constitutional right is intolerable. In terms of justice, what is the superiority of confessions achieved by the coercion of “stacking” in a courthouse negotiation, and those achieved in the bad old days by beatings with truncheons in the back rooms of police stations?

The task force’s report stresses that plea bargaining has legitimate uses. It incentivizes defendants to accept responsibility for criminal conduct, and offers finality to their victims and the community. Furthermore, prosecutorial resources are scarce, and plea bargaining is a mechanism for efficiently resolving cases. No value in life, however, invariably supersedes all others, and the pursuit of efficiency has too often become “the driving force of criminal adjudication,” supplanting transparency and justice.

A consequence of excessive plea bargaining is, the ABA’s report says, that “police and government misconduct often goes unchecked because so few defendants proceed to pre-trial hearings where such misconduct is litigated.” Furthermore, prosecutors become less skeptical of their witnesses, and less scrupulous about not advancing weak cases. Defense lawyers become less rigorous in investigating cases that seem destined for a plea deal. With such deals, defendants waive the right to confront adverse witnesses, and perhaps to challenge unconstitutionally procured evidence and to receive materials prosecutors acquired during discovery.

The task force recommends, among other reforms, that “sentences should not be punitively inflated simply because a defendant exercised” the right to a trial. So, judges should be allowed to judge, departing from any mandatory minimum sentences in order “to avoid a substantial differential between the trial sentence and any lesser sentence offered as part of a plea bargain.” And there never should be the “inherently coercive” use of the threat of capital punishment or life without parole to induce a guilty plea.

Policies pursued by ideologically blinkered progressive mayors and district attorneys (hello, Chicago, Philadelphia, San Francisco, Seattle, etc.) have, to say no more, coincided with surges of violent crime. This is, therefore, an unpropitious moment to pursue criminal justice reforms that sensible progressives might favor — e.g., concerning plea bargaining — but that opportunistic politicians can stigmatize as coddling criminals.

Undaunted, the Cato Institute’s Clark Neily and others suggest that plea bargaining on today’s “industrial scale” could be countered by a “trial lottery”: A small percentage of cases in which plea agreements have been reached should be randomly sent to trials. How often would the government be unable to secure a conviction after it has managed to induce a pre-trial guilty plea? Let’s find out.

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No civilized or lawful purpose is served by executing the severely mentally ill

Should society exempt severely mentally ill people from the death penalty? The story of Andre Lee Thomas, on death row in Texas, raises that question, writes Sally Satel in the National Review.

On the morning of March 27, 2004, Thomas, just barely 21, woke to the voice of God telling him to kill his estranged wife, their four-year-old son, and his 13-month-old-step daughter. He cut out their hearts (mistakenly taking part of his wife’s lung) to “set them free from evil.”

Thomas then stabbed himself in the chest, intending to die. When he survived, he turned himself in, asking police, “Will I be forgiven?” In jail he said, “I thought I was doing the will of God.” As he sat in Grayson County Jail, believing that his family wasn’t really dead, Thomas read the Bible. When he came upon Matthew 5:29 — “If your right eye causes you to sin, gouge it out and throw it away” — he did just that.

Thomas’s mental difficulties were longstanding. He was diagnosed with schizophrenia, as were two of his brothers. At his murder trial in March 2005, his plea of not guilty by reason of insanity lost because the prosecution argued that he brought it on himself through the ingestion of cough medicine.

On death row, Thomas continued to suffer delusions and extracted his remaining eyeball, which he then swallowed to ensure that the government could not hear his thoughts.

Last month, his lawyers asked Governor Greg Abbott and the Texas Board of Pardons and Paroles to stay his execution set for April 5 and to commute his sentence to life in prison. At the very least, his lawyers sought a 120-day reprieve to give them time to determine whether Thomas, who still experiences hallucinations and delusions, is competent to be executed. Although the Grayson County District Court recently withdrew the April execution date, that only postponed the determination of his competency. The district attorney is still seeking his execution.

How did we get to the point where we have to even ask if someone as mentally ill as Thomas should be executed? According to the Supreme Court in Panetti v. Quarterman (2007), the execution of condemned prisoners who fail to understand the reason for their imminent demise constitutes cruel and unusual punishment under the Eighth Amendment. Yet no court has ever addressed a more fundamental matter: the eligibility of someone as mentally ill as Thomas, clearly psychotic at the time of the crime, to receive a death sentence in the first place.

The Supreme Court has, however, ruled, on the mitigating power of mental defect under the Eighth Amendment, in Atkins v. Virginia (2002). In a 6–3 decision, the Court held that people with intellectual disability (“mentally retarded persons,” in the language of the majority opinion) are constitutionally ineligible for the death penalty. “Evolving standards of decency” prohibit the death penalty for offenders with intellectual deficits that compromise their capacity for moral reasoning. Those deficits, as the Court identified them, were “diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.”

The same judicial sensibility can and should apply to severely mentally ill defendants. Mentally ill defendants, that is, who kill in response to hallucinated commands or delusional beliefs, suffer diminished rationality, which in turn diminishes their culpability and means, ultimately, that their offense warrants a lesser penalty.

True, the insanity defense exists for mentally disordered individuals who have lost the ability to distinguish what is morally right from wrong. (The insanity defense protects against any criminal punishment, not just the death penalty, although defendants do not go free; they face many years in a secure psychiatric facility.) But the requirements to qualify for the insanity defense set the bar so high that few mentally ill defendants can meet it.

And while judges and juries have the discretion to consider mental illness a mitigating factor when setting sentences, they do not reliably use it. Sometimes, in fact, juries regard mental illness as an aggravating factor. It may seem counterintuitive to hold mental illness against defendants, but jurors may interpret their flat or bizarre emotional state as lack of remorse (rather than as a manifestation of their psychiatric condition). Also, jurors often make decisions based on their judgment of future dangerousness. Their determinations, therefore, might be swayed by their perception of mentally ill people, generally, as violent. Too, the effects of sedating medication can make such defendants seem apathetic or poorly responsive as a witness. (See page 32 of the white paper linked to here.)

There needs to be a middle ground for mentally ill defendants who do not meet the standards for the insanity defense but who, because their reasoning is too impaired, cannot be held fully responsible for their crime. They should face life imprisonment or, what would be more compassionate, confinement for life to a psychiatric facility, but not the death penalty.

A number of states are starting to endorse the idea that some people are too mentally ill to be sentenced to death. In 2021, Ohio became the first state to pass a law — it had strong bipartisan support — exempting people with severe mental illness from the death penalty. Defendants must meet two criteria. First, by a preponderance of the evidence presented in pretrial evaluations, they must prove that they suffered from either schizophrenia, schizoaffective disorder, bipolar disorder, or delusional disorder at the time of the alleged offense. Second, they must show that their condition “significantly” impaired their capacity to exercise “rational judgment” with respect either to conforming their conduct to the law or to “appreciating the nature, consequences, or wrongfulness” of their conduct.

Mentally ill defendants who prove to meet both conditions will be exempt from execution and face an automatic sentence of life without parole. The exemption can apply before trial if the defendant is deemed ineligible for the insanity defense, or after an insanity defense has been rejected at trial. Furthermore, convicted prisoners already on death row are allowed to petition the state to overturn their sentence because of severe mental illness.

Kentucky legislators followed in 2022, though the state’s new law does not allow relief for previously sentenced death-row inmates. In South Dakota and Virginia, bipartisan bills with similar provisions passed one house of the legislature. “In 2021, the Texas House of Representatives passed a bill with strong bipartisan support, and it was just reconsidered in committee on March 7. Tennessee, Arizona, Arkansas, Florida, Indiana, Missouri, North Carolina, and Iowa (were the death penalty to be reinstated in Iowa) also introduced bills. These bills would protect defendants with severe mental illness against the death penalty if they fail to attain the full excuse from responsibility afforded by the rarely successful insanity defense.

No civilized or lawful purpose is served by executing the severely mentally ill.

More legislatures should follow Ohio and, in doing so, influence courts to exempt from capital punishment those whose severe mental illness distorted their moral logic. When an appropriate case comes before the Supreme Court, it should interpret the Eighth Amendment as barring execution of mentally ill individuals whose commitment of murder was the result of their deranged thinking. If this were already the law of the land — or of Texas — we would not be looking at the possibility that Andre Thomas might be executed.

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Mississippi seeks to appoint some judges in violation of state constitution

 Luther Mumford writes in The Northside Sun:

House Bill 1020 has already been the subject of national comment because, in cases arising out of the new Capitol Complex Improvement District, it would displace the elected Hinds County judges with a new appointed court. Some blame racial bias. Whether that is true would, of course, depend on the race of the new judges. But there are far deeper problems with the bill. 

The Mississippi Constitution does not allow the displacement of elected judges. To be constitutional, the new court would have to be “inferior” to elected judges and subject to their review. Moreover, there is nothing in the Mississippi Constitution that would allow the chief justice of the Mississippi Supreme Court or anyone else to do what the bill asks, i.e. to appoint its members. The constitution does not contemplate filling any permanent judicial office by appointment, and the temporary appointing powers it gives belong exclusively to the governor.

So House Bill 1020, if passed, would either simply add a new and unnecessary layer of judicial review to any case arising in the district or, if review by the elected judges could somehow be curtailed, and appointment were even possible, it could put the governor in the driver’s seat of litigation against, among others, the governor and his executive branch agencies. That is not a good idea.

The Mississippi Constitution says the judicial power lies in courts “as are provided for in this constitution.” It provides for an elected Supreme Court and elected circuit and chancery trial courts. It then says that the legislature can create “inferior courts” which it also can abolish “whenever deemed expedient.” In other words, the judges of those courts, unlike the judges of the named courts, have no protection against a legislature which does not like their rulings and so chooses to eliminate their positions.

When the legislature created the elected Court of Appeals in 1994, the Supreme Court held that it is a constitutional “inferior court,” even though it shares jurisdiction with the Supreme Court, because it is “inferior” in ultimate authority to the Supreme Court itself. Appellate cases are filed in the Supreme Court and some are then assigned by the Supreme Court to the Court of Appeals for decision. At any time, the Supreme Court can take a case back. And a party disappointed in the Court of Appeals can obtain certiorari review in the Supreme Court. That court can then decide the case as if it had originally been filed there.

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Modern day lynchings: Videos of black men being beaten by police

Anti-Blackness as a spectacle is nothing new. White people have long intentionally and joyfully consumed Black misery. Lynchings were common in 19th and 20th century America and were explicitly public occurrences—even family entertainment, with parents and children attending and bringing food and drink, reports The Appeal. Local newspapers would detail the murders, including graphic photos of the victims. Perpetrators and onlookers often took souvenirs from the victims. Prominent white lynchers were lauded by local newspapers and posed with their children near the deceased for photos.

One of the most well-known civilian attacks on a Black person in American history began on August 20, 1955, when 14-year-old Emmett Till, a Black boy, was accused of flirting with a white woman while visiting family in Mississippi. Four days later, the woman’s husband and his brother brutally beat, shot, and dismembered Till, then threw his body into a river.

His mother, Mamie Till Mobley, rejected a mortician’s offer to “touch up” Till’s body. Instead, she chose to have an open casket funeral exposing her son’s grotesquely mangled form to illuminate the horrors of Jim Crow segregation and anti-Black racism in America. An estimated 50,000 people saw Till’s body during his funeral in Chicago. The national magazine Jet subsequently published photos of his corpse.

While Till’s death was at the hands of civilians rather than police, Till’s killers felt empowered to murder the boy because of state-sanctioned segregation and anti-Blackness. But simply publicizing images of Till’s body was not enough to spark meaningful societal change on its own—it took nearly a decade of concerted, direct political organizing to pass the Civil Rights Act of 1964. To this day, despite Till’s story and photos being taught in school, memorials for Till are routinely defaced and vandalized. The gruesomeness of his murder is mirrored by the callousness with which society objectified Till’s corpse and memory.

Civilian footage started proliferating almost 40 years later. On March 3, 1991, a bystander named George Holliday filmed from his apartment balcony with a home video camera while a Black man named Rodney King was beaten by police during his arrest. Officer Lawrence Powell swung his baton, hitting King in the head and causing him to fall to the ground. Officers Powell and Timothy Wind continued to viciously beat King. Holliday sold the video to a local TV station, which then sold it to CNN. The video became international news and provided explicit, recorded evidence of anti-Black police brutality. The public wondered once again whether this footage would be enough to change law enforcement permanently. But in the decades since, the cycle has only repeated itself. Footage of police officers killing Eric Garner and George Floyd within the last decade sparked international protests but little, if any, structural changes to law enforcement.

Earlier this year, on January 7, 2023, Nichols was pulled over by Memphis police during a traffic stop. Officers dragged Nichols from his car, attempted to tase him, and then chased him on foot. When the police reached Nichols, five officers pummeled him in the head and body. The officers left Nichols on the ground for 20 minutes before emergency responders began treating him. He died three days later. Shortly before the Memphis Police Department released the footage, Police Chief Cerelyn Davis said the officers showed a “disregard of basic human rights.” But in the weeks since, the department has done next to nothing to structurally change the way it polices Memphis, aside from abolishing the small strike-force-style unit that killed Nichols. While that one team in one locality may be gone, many similar units still exist around the country.

These incidents, spanning more than 70 years, each feature the public supposedly coming face to face with the horrors of anti-Black violence. In theory, the visualization of violence against Black people should force viewers to reckon with racism, spurring awareness and change. But these examples instead make clear that no amount of visual reckoning with trauma porn can create change on its own. The nation must dispose of the idea that “activism” means simply sharing videos of police brutality online, as opposed to actual involvement in political organizing or community aid.

The consistent portrayal of anti-Black violence not only solidifies Black people as victims in the minds of white Americans, but also exposes Black Americans to repeated depictions of their own dehumanization. In 2016, clinical psychologist Monnica Williams told PBS that police brutality videos can trigger PTSD-like symptoms in Black Americans. In 2018, a Harvard University-led study found that, when police kill an unarmed Black person, it negatively impacts the mental health of nearby Black residents for months afterward. Combined with the fact that this footage has so far done little, if anything, to change American policing, trauma porn is ineffective at best and immoral at worst.

The only thing that will stop anti-Black violence is rooting out the anti-Blackness present throughout American culture. In the words of abolitionist Angela Y. Davis, “in a racist society, it is not enough to be non-racist, we must be anti-racist.” We must intentionally uplift Black experiences and address Black people’s needs. There is no need to subject ourselves to the assault or murder of Black Americans in the interim.

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Right-wing robocalls targeting Black voters violated the Voting Rights Act and Ku Klux Klan Act

Right-wing activists Jacob Wohl and Jack Burkman’s robocalls targeting Black voters violated the Voting Rights Act and Ku Klux Klan Act — and the question isn’t close enough to require a jury, a federal judge ruled, reported Law and Crime News.

“The Court recognizes that the free exchange of ideas on issues of public concern and the ability to engage in robust political discussion constitute the foundations of a democratic society,” Senior U.S. District Judge Victor Marrero wrote in a 111-page order on Wednesday.

Marrero nonetheless found that the evidence “establishes that the neighborhoods that Defendants targeted were not accidental or random,” finding that a reasonable jury couldn’t escape the conclusion that the pair wanted to “deny the right to vote specifically to Black voters.”

“Goofballs and political hucksters”

The ruling spells victory without a trial for The National Coalition on Black Civic Participation (NCBCP), a civil rights group that sued Wohl and Burkman in the Southern District of New York before the 2020 presidential election.

New York Attorney General Letitia James, who joined the lawsuit, said in a statement on Wednesday saying:

“Your vote is your voice, and I am proud that today the court ruled in our favor to uphold the most important cornerstone of our democracy. Wohl and Burkman engaged in a disgraceful campaign to intimidate Black voters, using threats and lies to keep them from making their voices heard in an attempt to secure the election for their preferred presidential candidate. I will always stand fierce in defense of New Yorkers’ right to vote, and anyone who attempts to take away that right will be met with the full force of the law.”

Wohl and Burkman have been tied to multiple political hoaxes targeting perceived rivals of former President Donald Trump, including then-Mayor Pete Buttigieg, Anthony Fauci, and ex-Special Counsel Robert Mueller. Prosecutors, regulators and common citizens claimed the duo crossed a line with 85,000 robocalls, sent out nationally to such locations as New York, Ohio, Michigan, Illinois and Pennsylvania.

Recorded by a woman identifying herself as “Tamika Taylor,” the robocalls largely targeted diverse regions with the false message that “if you vote by mail, your personal information will be part of a public database that will be used by police departments to track down old warrants, and [will] be used by credit card companies to collect outstanding debt.”

Though Wohl and Burkman painted themselves as “goofballs and political hucksters with an irreverent sense of humor,” Judge Marrero rejected that the robocalls were “mere hyperbole.”

“In addition to the specific harms that the call threatened, Defendants dressed the call with a veil of legitimacy to mislead its listeners into believing the statements made in the call were true,” Marrero added. “The Robocall framed Wohl and Burkman’s organization, Project 1599, as a ‘civil rights organization’ with a name reminiscent of the 1619 Project, an initiative of the New York Times that sought to recognize and commemorate the history of the first slave ship that carried enslaved Africans into the United States.”

The stunt also led to criminal prosecution. In the Ohio case, Wohl and Burkman were sentenced to spend 500 hours registering voters living in low-income neighborhoods in the Washington, D.C., area. That was after they pleaded guilty to a felony count of telecommunications fraud. Another case in Michigan remains pending.

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Texas executes another death row inmate, the fifth of 2023

The 9th Execution of 2023

Texas has executed Arthur Brown, Jr. on March 9, 2023. He was convicted of the drug-related killings of four people more than 30 years ago, including a woman who was 9-months pregnant.

Brown, 52, insisted he was innocent before receiving a lethal injection Thursday evening at the state penitentiary in Huntsville. He was condemned for the June 1992 slayings, which took place in a Houston home during a drug robbery.

Authorities said Brown was part of a ring that shuttled drugs from Texas to Alabama and had bought drugs from Jose Tovar and his wife Rachel Tovar.

Killed during the drug robbery were 32-year-old Jose Tovar; his wife’s 17-year-old son, Frank Farias; 19-year-old Jessica Quiñones, the pregnant girlfriend of another son of Rachel Tovar; and 21-year-old neighbor Audrey Brown. All four had been tied up and shot in the head. Rachel Tovar and another person were also shot but survived.

 “I don’t see how anybody could have just killed a pregnant woman and then made her suffer so much. It’s just beyond words,” Quiñones’ older sister, Maricella Quiñones, said before the execution.

Brown was the fifth inmate put to death in Texas this year and the ninth in the U.S. His execution was the second of two in Texas this week. Another inmate, Gary Green, was executed Tuesday for killing his estranged wife and her young daughter.

Brown was defiant in his final statement.

“What is happening here tonight isn’t justice,” he said. “It’s the murder of another innocent man.”

He said he’d proved his innocence “but the courts blocked me.”

“The state hid the evidence so long and good that my own attorneys couldn’t find it,” he said in a loud voice, looking at the ceiling of the death chamber while strapped to a gurney and not making any eye contact with a half-dozen relatives of his victims who watched through a window a few feet from him.

As the lethal dose of the sedative pentobarbital took effect, he took two deep breaths, gasped and then began snoring. After six snores all movement stopped. He was pronounced dead 17 minutes later, at 6:37 p.m.

Harris County District Attorney Kim Ogg, who was among the execution witnesses, disputed Brown’s claims of innocence.

“He has been the beneficiary of a judicial system that bent over backward at the local, state and federal levels, all the way to the United States Supreme Court, who have all affirmed his conviction and sentence,” she said.

Three members of Jessica Quinones’ family, including her mother, also were among the witnesses and released a statement saying the day was neither one of joy nor celebration but “profound relief and gratitude.”

“After 30 years of anguish and uncertainty, we are finally able to rest knowing the monster who destroyed so many lives will never again torment the body or soul of another,” they said.

The U.S. Supreme Court earlier Thursday declined an appeal from Brown’s attorneys to halt the execution. They had argued that Brown was exempt from execution because he was intellectually disabled, a claim disputed by prosecutors. The high court has prohibited the death penalty for the intellectually disabled.

“Mr. Brown’s intellectual limitations were known to his friends and family. ... Individuals that knew Mr. Brown over the course of his life have described him consistently as ‘slow,’” his attorneys wrote in their petition to the Supreme Court.

One of Brown’s accomplices in the shootings, Marion Dudley, was executed in 2006. A third partner was sentenced to life in prison.

Brown, who was from Tuscaloosa, Alabama, had long maintained another person committed the killings.

Brown’s attorneys had previously filed other appeals that had been rejected by lower courts. They argued he was innocent and that a witness actually implicated another suspect. They also claimed Brown’s conviction was tainted by racial bias, alleging one of the jurors decided he was guilty because he was Black.

A judge in Houston on Tuesday denied a request by Brown’s attorneys for DNA testing of evidence that they said could have exonerated their client.

Josh Reiss, chief of the Post-Conviction Writs Division with the Harris County District Attorney’s Office in Houston, called Brown’s last-minute appeals a delay tactic.

Reiss said school records submitted at Brown’s trial showed while the inmate was initially thought to possibly be intellectually disabled in the third grade, by ninth grade that was no longer the case. The prosecutor also said Brown’s claims of innocence were problematic as the other suspect alleged to be the killer was found by investigators to not have been in Houston at the time.

“It was an absolutely brutal mass murder,” Reiss said, adding: “These families deserve justice.”

Maricella Quiñones said her sister was an innocent victim who wasn’t aware the Tovars were dealing drugs from the home. She said her mother also blames the Tovars for what happened.

“My mother’s not the same since my sister passed away,” she said.

She described her sister as a “very loving, caring person” who had looked forward to being a mother.

She said her family would likely never get closure.

“We lost two persons. Alyssa never got a chance at life,” she said, referring to her sister’s unborn child.

Brown was one of six Texas death row inmates participating in a lawsuit seeking to stop the state’s prison system from using what they allege are expired and unsafe execution drugs. Despite a civil court judge in Austin preliminarily agreeing with the claims, five of the inmates have been executed this year.

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Mangino a guest on the Law and Crime Network

 Watch my interview with Michelle Yu on the Law and Crime Network analyzing the verdict and sentencing of Alex Murdaugh.

 To watch the interview CLICK HERE