(3089/898) Uviller: Virtual Justice - 2

2114) [T]he truth is rarely the best story for a guilty defendant - and most defendants are guilty.

H. Richard Uviller
Virtual Justice (1996)

2115) [S]hould we worry more about the conviction of the innocent or the acquittal of the guilty?

H. Richard Uviller
Virtual Justice (1996)

2116) I'm not sure that the guilty should go free or the innocent be shipped off to jail in the service of the values supposedly advanced by the [legally protected] privilege. To be honest, I deem it an outrage that to protect a murderer's trust in his therapist, lawyer or priest (however valuable their services may be), we allow an innocent person to be convicted by a jury who was kept ignorant of the true murderer's privileged confession. Nor am I completely reconciled to acquitting a rapist who has made a full, voluntary, and verifiable confession to a psychotherapist while seeking relief from his pangs of guilt. [...] [P]rivileges, as impediments to justice, should be suspiciously viewed and narrowly construed.

H. Richard Uviller
Virtual Justice (1996)

2117) In addition to the lawyerly duties of proficiency and loyalty, there is the energy factor. Diligence. "A Lawyer Should Represent a Client Zealously Within the Bounds of Law," Canon 7 proclaims. Today, the criminal client seems to expect zeal more on the courthouse steps than in the library, more in the trial than in preparations for it. A vigorous defense has come to connote the spurious obligations of aggression, public relations, and the earnest espousal of falsehood. True, they are some politically motivated prosecutions, overblown indictments, and genuinely innocent defendants, but counsel's predictable declarations of outrage, the confident boasts of vindication, and the on-camera professions of wounded innocence make one wonder whether the criminal defense Bar still clings to any pretense of personal honor.

H. Richard Uviller
Virtual Justice (1996)

2118) Unfortunately, most of the lawyers drawn to trial work seem to be enamored with the production - the rhetorical game that is the presentation of a case. Few are willing to let the text of the case - the facts - speak for itself. The random blows of casual aggression, the tedious and pointless pursuit of minor matters, the posturing and pouting, the hints of evidence never adduced - surely these contributions cannot enhance the accuracy of the jury's judgment. The adversary model works best when the lawyers respect the
text above the production.

H. Richard Uviller
Virtual Justice (1996)

2119) [T]he work of the defense Bar in the adversary system would seem less reprehensible if so many did not feel called upon, as a matter of diligence, to lie for their clients. Or at least to speak without personal conviction. From the pretrial declaration on the courthouse steps to the final arguments before the jury, defense counsel offers unblinking support, earnest or outraged as the occasion may warrant. Is this a market phenomena? As soon as one lawyers steps up to the microphone to vouch for his client, must all lawyers sell the same service? I do not think this segment of the Bar will persuade the rest of us of their integrity as long as vouching remains commonplace.

Surprising as it may be to courthouse buffs and casual observers alike, the codified ethical imperatives of the Bar - the Code of Professional Responsibility and the Model Rules of Professional Conduct - both provide that a lawyer shall not knowingly make a false statement of law or fact to a tribunal. [...] If the world "knowingly" is too easily flung around the wholly conjectural, amply refuted assertion, my solution is: let's change the word and enjoin lawyers from making statements they have no good reason to believe are true. I would go further and extent the lawyers' obligation of truth telling to public and professional situations beyond the courtroom walls - but the world is probably not ready for so radical a proposal.

H. Richard Uviller
Virtual Justice (1996)

2120) [T]here is considerable value in the plea bargaining process wholly apart from its docket-clearing utility. I can think of at least two good things to say about it. First, I believe that the prosecutor and defense counsel are in at as good a position as the judge and the probation officer to evaluate the gravity of the crime and the character of the defendant. Not that they should take over the sentencing responsibility from the court; I lament the courtrooms where that has happened to the pleading process. Sentencing is, ultimately, what judges are for. But the lawyers may have an important contribution to make to the exercise of judicial discretion. And they are certainly better suited for the job than the legislature. In fact, the lawyers are there, in large part, to relieve the rigidity that the legislature imposes upon the process.

Ideally, disposition of criminal charges by guilty plea should be a responsibility nicely shared among the branches. The legislature identifies the crimes, divides them into degrees of gravity, and sets rather broad limits of sentence for each grade. These are essentially choices to be made by the representative branch. The executive determines who should be charged and with what. Prosecutors, as executive branch officers, "enforce the laws" by performing the job. The judge, after managing the process and assuring a fair, orderly disposition according to the law, selects the appropriate punishment for each individual offender.

It's a nice schema. But it is vulnerable to the political process. The anger of the electorate at the high crime rate is loudly communicated to their elected representatives, who readily (and foolishly) agree that the problem stems from the excessive leniancy of the executive and judicial branches. The easiest way a legislator can demonstrate concern is to enact legislation that limits discretion and forces the soft branches to stiffen up. Harsher sentences, minimum sentences, mandatory jail time, standardized "grid" sentencing, and restrictions on reductions of charges by guilty plea are some of the common results of this legislative ardor. The irony is that at the same time in many places, the legislators, wary of the high cost of building new prisons, connive at "early release" programs that let out dangerous people long before they are eligible for parole on their imposed sentences. These invisible little back-door, budget-wise, across-the-board jail deliveries are another testament to legislative hypocrisy, a small scandal waiting to happen.

It them becomes incumbent on the executive and judicial players to circumvent and undermine these measures whenever they see a case they believe demands a more realistic disposition. I believe that, insofar as the plea bargaining system brings individualized judgment and warranted compassion back into the system, insofar as it serves to make finer cuts on culpability that the gross legislative scheme allows, it is a good and valuable part of the process. It help to keep the human dimension in the dehumanizing business of processing criminal cases.

My second good thing to say is that I think the criminal defendant is entitled to know with the greatest possible certainty what he faces. [...] A criminal defendant, innocent or guilty, is entitled to know what he is risking and what he is settling for before he makes the important choice. So if the lawyers, with the agreement of the judge, have reevaluated his crime, factoring in all the aggravating and mitigating circumstances of his personal situation, and decided that his crime (which by genre the legislature pegged at up to fifteen) is worth about five years in prison, the defendant should know it. I prefer an intelligent choice to the blind leap onto the "mercy" of the court. [...]

For every defendant who comes out of the machinery of accusation [...] a conference should be held among opposing counsel and the presiding judge during which the individual case is fully evaluated on its special merits and an appropriate sentence settled upon. Of course it is understood that any new facts bearing on the gravity that come out at a trial would necessitate a new evaluation. Then a standard reduction should be allowed for the guilty plea, lets say a 20 percent discount for saving the state the time and risk of a trial, 40 percent if the prosecutor labels the case a tough one to prove. [...] These numbers are adjustable according to the grade of stress in the jurisdiction. In a nice slow jurisdiction, with plenty of court time available for criminal trials, I can see discount rates of 10 and 25 percent; in a really stressed jurisdiction, perhaps 33 and 60 percent, maybe even higher. We might also have a category for especially heinous crimes which are evaluated at the top of the range set by the law. These cases the prosecutor could withdraw altogether from the standard allowance. These presumably would be tried because the defendant would incur little risk by trial, aside from the revelation of facts that make the judge lower an already low opinion of the brute. We also need an flexible discount factor for the "cooperating" defendant.

In all, the prevailing system of plea bargaining seems both better and worse than its popular image. It is better because by and large it neither cheapens crime by overgenerous allowances nor discriminates against the poor and friendless defendant. Whether it induces guilty pleas from the innocent is hard to say, but it is probably true that most of those who plead guilty would be convicted on trial. At the same time the system is worse than its image because it unavoidably levies a tax on those who elect to exercise their constitutional right to trial by jury.

H. Richard Uviller
Virtual Justice (1996)

2121) The Fourth Amendment [...] speaks of a supporting statement [necessary for a magistrate to issue a warrant] "on oath or affirmation" but not of a written affidavit. The affidavit, laboriously composed, submitted, edited, revised, and taken physically to judge by the officer - this is the source of the hassle. Let's try to dispense with it and see what is left.

What if we had a permanent, round-the-clock, three-way radio hook-up connecting the police radio in the field to a prosecutor on call and a judge on regular, rotating duty. Let's put a scrambler and an automatic recording device on the line and a pad of blank search warrant forms in every patrol car. When an officer [...] gets his hot tip [...] he gets on the radio and in minutes is connected to the prosecutor and the judge. The judge puts him under oath and the agent describes over the air where he is, what he knows (or has been told) and what he wants. He is questioned by both the prosecutor and the judge. If the judge finds the probable cause is weak, she may decline the application and the prosecutor may advise the cop how to beef it up. If the judge is satisfied, she will direct the agent how to fill out the warrant form and will authorize the agent to affix the judge's name. [The agent] will them proceed [...] until the next move, requiring new authorization, must be made [...] at which time a new radio call will provide a new warrant if appropriate. [...]

It's flawless. It accomplishes all the the [Supreme] Court has been urging for so long: warrants become the ordinary and customary way to accomplish searches and seizures. And we do not have to suffer the anomaly of lost prosecutions of guilty criminals in order to protect people against unreasonable invasions of security.

H. Richard Uviller
Virtual Justice (1996)

2122) [W]hat's going on [with a lawyer's exercise of peremptory challenges]? Can a lawyer pick jurors like horses at a horse race, by the judicious application of impulsive hunch? Like candidates for lesser political office, by the shameless employment of blatant bigotry and crude stereotype? Shouldn't the community be represented on the jury by some chance configuration of its constituent groups? [...] [The peremptory challenge is] one of the monumental paradoxes in the American criminal justice process. [...] Having scrupulously composed a potential jury, representatives of the community as a whole and free of any bias, we allow the lawyers to superimpose their personal set of prejudices to recompose the jury as the most favorably biased group that each side can come up with before exhausting their share of peremptory challenges. Sometimes (if the attorneys are sufficiently astute - and have enough challenges), the adversarial setoff in the use of peremptories produces not a jury of opposed predilections but a bland compromise of jurors whose biases are well concealed or who have no predispositions of any sort. Needless to say, these people are either not the most forthcoming of citizens or are not the most alert and sensitive, those who have the broadest experience with life. Maybe not the best kind to sit on criminal juries. But most of those who display an "outlook" or who appear to have given some thought to issues of crime and culpability have probably fallen to the peremptory axe. [...]

[...] [T]he peremptory challenge is incompatible with the whole notion of a randomly drawn panel of citizens of all stripes. Though the trial Bar trembles at the prospect of an unbiased jury sworn as they come down the chute; though lawyers cannot conceive of playing the trial with a fully shuffled deck, the only solution to the pernicious exercise of peremptory challenges is their virtual abolition. The stoutest defender of the prerogative can advance not a single benefit from the blind exercise of challenges. [...] Trial lawyers will learn to live without their self-touted hunch about jurors, their crude, unverifiable, and often mistaken predictions of juror sympathy and disposition. [...] And (in addition to expedition) the trial process will regain a measure of much needed dignity.

H. Richard Uviller
Virtual Justice (1996)