In this morning’s NY Times, legal columnist Adam Liptak writes about something that’s been troubling me for a long time: The pressure on those accused of a crime, particularly if the accused is low-income, to take a deal rather than go to trial. I’ve personally seen it occur on a zillion occasions. And certainly, in many cases, the deal is the best course. But where the pressure gets the most troubling is when the accused doesn’t happen to be….well….guilty.

Liptak also focuses on civil cases, which present their own kind of problem in terms of the prevalence of settlements. But it’s the world of criminal courts with which I’m the most familiar—and in which this deal-making trend seems to be particularly pernicious.

Here’s what Liptak has to say:

In criminal cases, the vast majority of prosecutions end in plea bargains. In an article called “Vanishing Trials, Vanishing Juries, Vanishing Constitution” in the Suffolk University Law Review last year, a federal judge questioned the fairness of the choices confronting many criminal defendants.

Those who have the temerity to “request the jury trial guaranteed them under the U.S. Constitution,” wrote the judge, William G. Young of the Federal District Court in Boston, face “savage sentences” that can be five times as long as those meted out to defendants who plead guilty and cooperate with the government.

The movement away from jury trials is not just a societal reallocation of resources or a policy choice. Rather, as Judge Young put it, it represents a disavowal of “the most stunning and successful experiment in direct popular sovereignty in all history.”

In California, with its overburdened criminal courts, there is a palpably strong prejudice against trials, which are after all quite expensive. With the high profile or affluent accused—Phil Spector, O.J. Simpson and an array down from there— we are content to spend the money. But with your average gang member…or, say, homeless drug user, the indirect, and often quite direct implication is, “Dude. You’re nobody, so why in the world would we want to spend time and money on you? Take the deal or we’ll bury you. Count on it.”

And in most cases, prosecutors are more than able to make good on the threat. In gang cases in particular, presumption of innocence is all too rarely present. “Prove” the kid is a gang member, and the rest of the road is greased. Juries will fill in the blanks as long as prosecutors provide even the most minimal trail of breadcrumbs.

Got no good witnesses? They must be out there but afraid to testify. Witnesses say the defendant doesn’t really look like the drug dealer (or the robber or car jacker or shooter)? They must have been threatened by gangsters. Kid didn’t have anything to do with the crime but was just standing in the area? He’s a cold-hearted gangster so he must have had a part in it. Or if he didn’t, he might next time. (In a gang case, the movie “Minority Report” plays like a documentary.)

On the other hand, there is an entirely different way to look at deal making in the criminal system: At times, it’s an act of kindness and mercy.

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This weekend the NPR radio show, This American Life, replayed an updated version of its 2006 Peabody Award-winning episode, Habeas Schambeas.

(The link can be found here.)

The Habeas episode is a terrific piece of radio journalism that has gotten more important, not less, since its original broadcast in March of last year. I urge you to listen.

Here’s a snippet from TAL’s own description of the program:

The right of habeas corpus has been a part of this country’s legal tradition longer than we’ve actually been a country. It means the government has to explain why it’s holding a person in custody. But now, the war on terror has nixed many of the rules we used to think of as fundamental. At Guantanamo Bay, our government initially claimed that the prisoners should not be covered by habeas — or even by the Geneva Conventions — because they’re the most fearsome terrorist enemies we have. But is that true? Is it a camp full of terrorists, or a camp full of our mistakes?

Just to be clear: the right of habeas corpus is not a right or left issue. It is one of the most fundamental freedoms that the great experiment known as the United States of America has pledged to protect.

In September of 2006, some six months after the show was originally broadcast, the Republican members of Congress members along with most of their Democratic brethren, voted to pass the Military Commissions Act, a fear-based piece lawmaking that, in one legislative swoop, took away the ancient right of habeas corpus for any non-citizens declared to be “enemy combatants”

At that juncture, the rest of us-–if we’d had any sense—should have marched in the streets over the issue. But we didn’t. Okay, water under the bridge. But as of late last week, two new things have happened regarding our nation’s relationship with the Great Writ.:

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A couple of attorneys, an urban studies professor and a former Seventeen Magazine editor have banded together to launch a new website that helps teenagers know their legal rights. The website is called My5th.org, and was named (obviously) for the 5th Amendment.

This may sound like another well-intentioned but ultimately boring and ineffectual idea, but wait, there’s a twist.

The inspiration for the site is a young man named Genarlow Wilson., (whose attorney, BJ Bernstein, is one of the site’s founders).

In case you missed that story, fasten your metaphorical seat belts, and read on:

(Chapeau tip to commenter Woody for originally bringing the case to my attention),

It’s the ultimate cautionary tale for teenagers, illustrating how tragically things can go awry if kids aren’t aware of the laws that could potentially affect them.

It is also a tale of the collateral damage that inevitably occurs when legislators and members of congress try to out law-and-order each other for political gain by passing ever tougher and tougher laws—without ever bothering to think through the consequences.

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FIRST OF ALL, A MILLION THANKS TO COMMENTERS LIKE WOODY AND RICHARD LOCIRCERO WHO KEPT THE CONVERSATIONAL BALL ROLLING WHILE I DISAPPEARED.

It’s been a crazy week. In addition to several hardcore work deadlines, the two East LA parents/former gang members, who are the subjects of the new book I’m working on, An American Family, (based on my year long series for the LA Weekly in 2004), just had a very difficult event occur in their lives that will actually end the book.

I’m not going to give it away, but suffice it to say, it was a heartbreaker for all concerned—including me, the pesky writer. So I spent the last several days hanging out with the family—in court and away from it.

(The photo above is of Luis Aguilar, the dad in the family,. I took it the day his brand new son, Xavier Roque, was born early this past January. Ironically, it was the first time Luis had ever been out of prison to see one of his kids’ born.)

Ever the objective journalist, I tend to get very involved in the lives of those I cover. But, as I tell my UC Irvine journalism students, don’t be afraid to allow your stories to leave permanent marks on you. It hurts more in the moment, but your life and your writing will assuredly be richer for it.

In any case, last night when I got home from my Irvine teaching day, and it came to blogging time, I decided I needed a mental health night off (and a full night’s sleep.)

Much cheerier now.

Okay, now back to actual news—murder and mayhem, dreadful school board decisions, heavily armed adolescents and other favorite subjects.

I’ve just spent the last two days reporting on a story that took me to two different Los Angeles courts. All day Tuesday it was Edmund D. Edelman Children’s Court, where I watched a father and mother trying to retrieve their kids from the clutches of the foster care system. Not pretty.

The on Wednesday I was in LA’s downtown criminal court—never exactly what you’d call a slap happy romp. Heard a lot of brand new nightmare stories about the problems at LA County jail. Other new nightmare stories about California parole policy. More on all that soon.

And I’ll be back with real blogging tonight.

As commenter, Richard Locicero brought up in the last thread, the notion of execution—lethal injection or no lethal injection—becomes even dicier when viewed in the light of the growing number of exonerations.

Because of my gang reporting, I know of a smattering of cases in which people are serving time for crimes they didn’t commit. (And, of course, I also know of a number of other situations where people didn’t get caught for crimes they did commit.)

There is, however, one instance in particular that continues to haunt me.

I’ll get to that in a minute, but first some more recent news:

On Monday of this week, the 200th person exonerated through the use of DNA evidence was officially cleared . His name is Jerry Miller and he spent 25 years in prison for a Chicago rape, which he didn’t commit.

Here’s what the AP said about the case:

The details of the latest exoneration are typically nightmarish: Jerry Miller served 25 years for a rape conviction and had already been paroled when DNA tests showed he could not have been the man who attacked a woman in a Chicago parking garage.

Yet more alarming even than the individual stories, is the fact that the number of newly discovered wrongful convictions in the United States is growing at an increasingly rapid clip.

What’s also troubling is how common these exonerations have become since the first reversal in 1989. It took 13 years to reach the first 100 DNA exonerations, but just five to double that number. For prosecutors and judges, as well as defense attorneys, the exonerations raise a larger question: How many others, innocent of their crimes, are behind bars?

Advocates for extensive changes in the way cases are investigated and prosecuted see the 200 as the tip of a huge iceberg and use the word “epidemic.”

Prosecutors bristle at the characterization. They agree that a single person wrongly convicted is an injustice that can’t be tolerated, but see the problems as few, far between and fixable.

Well, maybe. While “epidemic” is a bit extreme, there is a growing uneasiness among many working in and around the criminal justice world who suspect that, as forensic technology becomes more sophisticated, and more and more states begin forming “innocence commissions” to examine claims of wrongful convictions, it’s likely that exoneration numbers are going to increase substantially

In California alone, more than 200 people have been cleared of major crimes—rape, murder and the like—using DNA but also other methods—as it many cases there is no DNA evidence.

The truth is, it doesn’t take a major crime for a false conviction to have a near-ruinous effect on someone’s life.

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A new study has just been released by researchers at the University of Miami that provides yet more evidence that executions by lethal injection may, in many instances, be excruciatingly painful. (I posted at length a few weeks ago about good, bad and the really ugly of the issue.)

In order to examine the question of what was really going on with the cocktail of three drugs that was, at one time, thought to be a relatively painless, “humane” form of execution, the researchers looked at past executions in South Carolina and in California. They choose those two states, it seems, since some of the really high-volume execution states like Texas, refused to give them any information.

Although it wasn’t their main point, the researchers’ accounts of the high levels of secrecy surrounding the particulars of various states’ execution policies was one of the things I found troubling about the study. One would think that, with 11 states calling temporary halts to executions because of the controversy, now is the time to throw the doors open and let in some light. Unless, of course, those states have many more botched executions, than we suspected, and state politicians fear it won’t do much for their poll numbers, if the rest of us read about such things in our morning papers..

Yet, it stands to reason that, if we’re to make any kind of sense of the lethal injection problem—both legal and moral—the various state execution protocols and the results they’ve engendered, have to be laid out on the table.

The Washington Post and AP have written about the study and its findings.

Here’s some of what the AP had to say:

Even when administered properly, the three-drug lethal injection method appears to have caused some inmates to suffocate while they were conscious and unable to move, instead of having their hearts stopped while they were sedated, scientists said in a report published Monday by the online journal PLoS Medicine.

No scientific groups have ever validated that lethal injection is humane, the authors write. Medical ethics bar doctors and other health professionals from taking part in executions.

The study concluded that the typical “one-size-fits-all” doses of anesthetic do not take into account an inmate’s weight and other key factors. Some inmates got too little, and in some cases, the anesthetic wore off before the execution was complete, the authors found.

“You wouldn’t be able to use this protocol to kill a pig at the University of Miami” without more proof that it worked as intended, said Teresa Zimmers, a biologist there who led the study.

A few more interesting takes on the recent Supreme Court decision, Gonzales vs. Carhart, regarding partial birth abortions.

This one from David Bryne of the Chicago Trib explains why he doesn’t think the sky is really falling as a result of the new decision, despite the fact, he says, that Barak Obama and the LA Times say otherwise.

US News and World Report also has a thoughtful essay in its upcoming April 30 issue that suggests either the decision is a kind of middle ground that, as Bryne says, reflects the compromise much of the country wants. Or it’s really bad, and, as such, is going to be a monster wedge issue that may well bring a lot of angry democrats roaring to the polls in ’08.

Anyone who’s been paying attention doesn’t need a 115-page report to tell them that a number of things are going fundamentally wrong at the Los Angeles Unified School District. All you need do is hang around some of the district’s troubled high schools for a few months, while, say, simultaneously attending a few months worth of school board meetings. I promise you, the feelings of dismay kick in pretty early on.

Still and all, it’s important to give credit to new LAUSD Superintendent, David Brewer, for ordering up a study by a neutral consulting firm, Evergreen Solutions, to find out once and for all what was working in the district and what wasn’t.

When the 115-page report finally came back last week, it was utterly withering
in its criticism of the district. Or as the Daily News put it: “LAUSD REPORT CARD: ALL F’S.”

Here are some of the report’s pithier F-Grade observations:

1. A lot of good recommendations have been made to the district, year after year, in study after expensive study, and around zero of them have ever been successfully implemented.

2. Despite the obstacles, there are a number of schools and programs within the district that are getting good results, however there has been virtually zip effort to examine and replicate them.

“…principals of schools that had made exceptional progress in raising student achievement reported to the board and identified five strategies they believed had contributed to their success,” said the report. “When asked what had been done in the district as a result of that report, the answer was ‘nothing.’”

3. There’s “no sense of urgency” in responding to the districts most pressing problems, and “no accountability” when directives aren’t followed.

The report goes on from there, very little of it complementary.

Plus, in addition to its criticisms, it also makes some smart suggestions —like a number of practical yet innovative strategies for drawing parents into closer involvement with their kids’ educations.

“Since the early 1970s,” says the report, “high levels of parental involvement have
been identified as one of a few common characteristics of high performing schools
regardless of student socioeconomic level, educational level, personal school experiences, or ethnicity.”

In other words, stop blaming the parents when the students don’t do well. The report talks about ways to get past parents’ “barriers to engagement,”—adding that such approaches are “associated with rises in student achievement.” .

(You can read it for yourself here.)

Again, most of it’s nothing that district critics haven’t been shrieking about for years, but it’s weirdly refreshing to see it on paper.

Moreover, the fact that Brewer has gone out of his way to make the report very public suggests that he has the intention of doing something other than using it as another $350,000 paper weight—a heartening change from the defensive, leave-us-alone, we’re-making-progress stance we’ve seen for far too long.

Brewer has promised to “overhaul” the district, which is exactly what is needed. No more ineffective tinkering at the edges.

Whether he has the diplomatic chops and the personal force of will to persuade/cajole/threaten the board and the union to his way of thinking remains to be seen.

It would be nice to think that wrongful convictions are once-in-a-blue-moon occurrences. But research in California and elsewhere suggests otherwise. It seems that three of the main reasons for wrongful convictions are: erroneous witness identification, false informants, false confessions.

A few random So Cal examples:

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Los Angeles resident, Harold Hall, was convicted of first-degree murder and sentenced to life without parole. He spent 19 year in prison. He didn’t do it, although he confessed to the murder. What jurors didn’t know is that Hall was interrogated by four detectives of 17 hours straight while handcuffed to a chair, without food, water or bathroom breaks. Released in 2004, Hall now works for the Los Angeles County Bar, appointing attorneys to indigent defendants.

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Timothy Atkins, another Los Angeles man, spent 20 years in prison for a murder he didn’t commit. His conviction based on a faulty witness ID and the false testimony by a jailhouse informant. He was released this past February.

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Herman Atkins served 12 years for a rape he didn’t commit. He was convicted based on faulty and coerced witness ID and was released in 2000. He is now getting his master’s in psychology, and has set up a small foundation, LIFE, to assist other recent exonerees with the basic necessities. His lawsuit against the Riverside detective accused of fabricating witness testimony against him began last week in LA’s downtown criminal court.

I could go on.

A group of California lawmakers are working to address some of the root causes of these miscarriages of justice—that is if the governor doesn’t get in the way.

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