Alford Plea

Do you solemnly swear or affirm that the testimony you're about to give will be the truth, the whole truth, and nothing but the truth. From Tenderfoot TV and I Heart Radio, this is Sworn. I'm your host, Philip Holloway. I'm sure you've seen over the course of your career as I have, that over the decades, the sentences have gotten so much longer, that the risks have gotten a lot higher, and so now it becomes not like, well, if you go to trial, you're probably looking at nine years.

They're offering you four years. Now you get into these crazy numbers where it's too risky to go to trial and It's very hard for defense attorneys to advise their clients on police bargaining. It's very difficult conversation to have. I remember saying in a one client once who wanted to go to trial, and the case was absolutely horrible. I mean, the evidence they had on him was indisputable

that he was guilty. I remember saying to this guy, I said, well, picture this, how do you think the trial will go if I'm so lucky as I get on the jury? Your mom, both your grandparents, your cousins, your uncle's, your aunts, I get an entire jury of just your relatives. Do you think I could convince them that you're innocent? And it came to the conclusion that I couldn't convince his family he was innocent. I said, well, how do you think I'm gonna do its? Well? Strangers?

And that was the sobering moment for him. It's tough because it's their decision. You don't want to pressure them into making it, but you want to give them a realistic assessment of their chances because that's what they're looking at you for The voice at the beginning of the episode with Justin Brooks, the current director of the California

Innocence Project. Last week we started looking into the high costs and the extreme risk associated with taking a criminal case to trial, and how because of that risk, people sometimes will plead guilty to things that they have not done. Chief among this extreme risk is the risk of a higher prison sentence that often comes after someone refuses to accept a plea bargain. There are many factors that can

affect the ultimate sentence imposed in any given case. These actors frequently include shotgun charging and high mandatory minimum sentences. So we asked Kevin Ring about this trial tax. Kevin is the head of Families Against Mandatory Minimums. While Kevin himself was on trial, he had to make this agonizing choice about whether or not to plead guilty to crimes that he didn't believe he committed or faced an extended

prison sentence following trial. Kevin gives us his firsthand account of his experience with the hidden costs of trial, including the trial tax and the more straightforward costs that come with taking a case to trial. I think the trial tax is something that's not well understood. I think they've been brainwashed into thinking that if you're found guilty, then

you should have taken whatever deal was offered. Put aside the fact that you might have thought you were in this send put aside the fact that you have a constitutional right to go to trial, even if you think you're dead guilty. You have a constitutional right to put

the government to its proof by going to trial. But there has developed in our culture this sense that if you don't do what the prosecutor decides, and you don't plead guilty and you use the resources of a trial, that you're just going to open yourself to a longer penalty. I think when people are confronted with individual examples of it, they see it, but it's not something they think about because unless you're involved in the system, it's just not

something you think of. Kevin had to deal with this firsthand when he went to trial. They brought me in and they said, you know, after two years of cooperating and other other evidence gathering, here's what we have against you. And if you plead and cooperate, will charge you with these things. And if you don't and you go to trial, will charge you with all of these different crimes. It gets the point where it's not even your conduct, it's what they decide to charge as your conduct that can

determine the outcome of your sentence. Just like mandatory minimum sentense and guidelines, which are not statutory they're usually created by commission, are just as malleable by prosecutors. They can, you know, sometimes implicate certain enhancements for use of a computer or being the leader of a conspiracy. They can use and manipulate the sentence and guidelines just like they do mandatory minimums, so that even two similar defendants get

much different sentences. Kevin points out that prosecutors will sometimes incentivize a defendant to take a plea deal rather than have him or her exercise their right to a trial. A normal plea bargain is the defendant will come in and if he or she is guilty and the government um wants to dispose of the case without having to go to trial, they'll say, look, this crime carries up to five year penalty. We will tell the judge that you cooperated and so you should get a shorter sentence.

When Amanda Tory minimum attaches to some of these crimes, the prosecutor will say, will charge you with this lesser offense that doesn't carry a mandatory minimum. If you plead and then recommend a shorter sentence. But if you decide to go to trial and put us through the hassle of having to prove our case and win a conviction, we're going to bring all these charges against you, and some of those charges carry mandatory sentences, and when they

do that, it doesn't matter what the judge thinks. At that point. If you're convicted, you're going to face a much higher penalty. It's just become too much of a game where once the prosecutor decides you're guilty, your options are very limited. I had friends of mine who were law and order types who said, look, I don't think you're guilty, but you have to plead guilty just to make this go away. There's something wrong when that's happening. Once again, Kevin saw this play out in his own

case when he went to the sentencing. Phaise, the ringleader of this lobby and conspiracy, had been sentenced to four years. The government asked for seventeen and a half to twenty two years for me, and the judge said, how can this be possible. You know that he was an underling. How can he deserve this much time? You're currently punishing him for going to trial, and the prosecutors said, no,

we're not punishing if we're going to trial. But he's just not getting the reward of pleading guilty and cooperating. And she said, isn't that just the different side of the same coin. I don't think there's any philosophical issue with giving somebody some credit for pleading guilty and cooperating.

I think if somebody is guilty and they are willing to spare the government and taxpayers the cost of a trial, and they're willing to accept a shorter sentence, which they're going to get if they accept responsibility, I think the fact that they might get a shorter sentence is okay. And I think that incentive by it existing, will, you know,

cause some people to plead guilty, and that's okay. The problem that happens is they not only get a shorter sentence, but those who don't don't just get the sentence that the other person would have got. They get a much longer sentence because once you decide then to go to trial, they usually add charges and penalties. The delta is not just if a was the utopian perfect punishment and the person who pled got two years less than a and now you get a for going to trial. No, you

get a plus five. If I had pled guilty and cooperated, the government was all but offering me and no jail deal. But when I went to trial and lost, they were now asking with a straight face for seventeen and a half to twenty two years. And so luckily I had a judge who was a former criminal defense lawyer and a senior judge who wasn't just accepting the government's arguments at face value and really pushed back. Kevin says this sort of thing happens in courtrooms all across America every

single day. In Florida, for example, there are cases where people have used a gun to fire what's called a warning shot. For example, during an altercation, somebody might fire the weapon up into the air as a warning, and they would argue this is a form of self defense to deter an attacker. You're not supposed to use a gun that way, but these people felt threatened, and the prosecutor said, well, that's aggravated assault. You've threatened people by shooting a gun. And the person will say, no, I

was acting in self defense. I felt threatened. The prosecutor may say okay, well, listen, just plead guilty to this crime and I'll let you go with three years, and the person said, no, I think I'm I acted in self defense. I'll go to trial. Well, once they go to trial, that aggravated assault and the firing of a weapon, if they're found guilty, carries a fifteen year mandatory minimum.

So we have cases in Florida where people are serving fifteen year sentences even after the prosecutor offered them a deal that would have had them serve three years. That

twelve years has nothing to do with public safety. It just has to do with the fact that the defendant, for reasons good or bad, wanted to go to trial and try to approve his or her innocence, and so mandatory minimums can make the difference between pleading and not pleading so great it coerces people into pleading guilty, whether they're innocent or not. Kevin recognizes that judges are sometimes

in a tough position. Judges understand that plea deals are a necessary and important part of the system, and that there just aren't enough resources for every case to go to trial. I think a bad habit has developed where they're not scrutinizing the plea deals as carefully as they should. They should make sure that plea deals aren't being used by prosecutors to go after the small fish and let

the sharks get out with a shorter sentence. The thing I I try to emphasize is that I'm relatively privileged. I have, you know, a great deal of education. I was relatively um well off. But what people don't understand is when the government comes after you, you can't fight it. You can't afford to fight it. People will say things like, oh, yeah, going to trials expensive, it's not expensive, in a sort of throwaway line that like, you know, a new vacuum

cleaner is expensive. My two trials and appeals cost two million dollars, and I didn't have two million dollars. I had to. I mean, my brother took out a mortgage on one of his houses. I spent all of my family savings to try to prove my innocence. I lost all of that money. Then my em lawyers were pointed as public defenders to finish the second trial and appeals. You just can't do it. That's why of all federal cases now and in plea deals, trials have vanished because

no one can do it. And so that's the thing when somebody says, what do you think about indigent defense and the idea that you know, we should pay for somebody having a defense, I don't like that term because I don't think only the indigence can't afford a defense. No one can. M not only is going to trial a risky proposition and that you no longer have control over the result. Kevin is very right here. Going to

trial is extremely expensive financially. We've talked throughout this season about all of the financial barriers that indigent defendants face in trying to win their trial. These things range from overworked public defenders to the costs associated with paying for forensic testing and expert testimony. But like Kevin said, those costs add up for everyone. Many people who are not indigent can become indigent just by being accused of a crime.

If a defendant wants their day in court, they will have to consider a lot of things, including the trial tax as well as the financial costs, both of which are less costly if they decide to take a plea deal. To take a plea deal, defendants normally have to admit guilt under oath. This can present a huge problem for people who are actually innocent. There is, though a way

around this dilemma. If an innocent person wants to take advantage of a more or less favorable plea deal rather than risk getting hit with the trial tax or perhaps a mandatory minimum sentencing following a jury trial, they can enter a special type of plea known as an Alfred plea. In the States system, I see Alfred please quite regularly. Many of my own clients have opted to enter Alfred please rather than risk going to trial. They felt it

was just in their best interests to do so. But while working on this topic for the show, I had a surprising conversation with Judge Jed Raikoff, the federal judge from New York, who, as you'll hear, is not a huge fan of this type of plea. The federal law and the law in some states allows theoretically a person to come into court a defendant and say, even though I'm innocent, I don't want to take the risks, and I think the government is probably likely to convict me,

but I'm prepared to accept that. So I may pay my innocence, but I will take the consequences of a guilty place. This has been approved by the Supreme Court in case called Alfred. But you know, almost never see it. You never see it in the federal system and very very rarely in the state system. And here's why our criminal justice system is not an administrative law system. It is ultimately based on, or attempts to be based on,

an application of basic moral precipents. And no judge wants to accept a guilty plea from someone who says he's citizen, and no prosecutor, for that matter, feels comfortable accepting a play from someone who says he's innocent. So while ironically and Alfred plea may be closer to the truth of what's really going on in some circumstances, you have almost never seen. What if I told you that I practiced in an area where alfred please are in fact routine, I guess my question that is to you why our

prosecutors going along with that? Well, I can tell you just based on my own experience, and I've done a handful of Alfred Please myself just this year in and I think the short answer is that they are aware of how powerful mandatory minimum sentencing is they are aware that they can use this leverage to avoid having to go through the halsehol and expensive a trial, and judges are happy to take in Alfred plea because it takes one less case off of a crowded docket and move

the business. So to speak, Well, you've just identify, which makes sense from a efficiency standpoint, is to my mind, totally repugnant from any moral standpoint. The prosecutor is saying, Judge, he claims he said it, and we don't believe him for one minute. But rather than have to go to trial and prove it, we don't have the resources, we'll just take the plea. The dependent and the fence lawyer says, oh, Judge, my guy is really innocent. He's never did this at all.

But my gosh, we're not prepared to take the risk going the trial. That's that's too dangerous. So rather than trying to prove our innocence, we will take the plague. And the judge is saying, it all sounds fine to me because I've got twenty cases. I've got it here today and just at least get it down to nineteen.

What you're saying is a total disregard for finding out the ultimate truth, a total disregard or putting the government to its proof, a total disregard for a judge's obligation to ascertain his best he or she can whether a person is really guilty or not. It becomes instead of justice, it just becomes convenient. Having said that, the reason this is going on is because of most cases the very high penalties that you faced if you go to trial.

So basically the way the plate coloque we works very similar to the one you described in the federal court. Where you sit, you get to the part of the questioning where the court says to the defendant, are you in fact guilty? It's a simple yes or no question if the person is under oath, right, And I'm a lawyer and I can't have some body under oath that's

knowingly committing perjury. So if I've got a client who is wanting to take advantage of a plea deal basically to avoid say a mandatory minimum, but at the same time they maintain their innocence, we can't give it yes or no answer. So we've got to telegraph to the court ahead of time that this is going to be plea made under under offer and Basically, all that the judge does is say, you know, your lawyer has told me that you want to enter a plea and that

you still maintain your innocence. In order for me to accept your plea, Mr or misdefendant, you've got to satisfy me, as the judge, that you think that the prosecution may very well be able to convict you, and that because of that it's in your best interest to take advantage of this plea. Is that what you want to do? And so then they bull it down to just a different yes or no question, But it takes about five

minutes or less. Well that that is certainly streamline. Oh, I was in court last week and I saw a judge and we were one of the cases literally stand I think it was twelve defendants in the well of the courtroom and uh have them standing side by side with their counsel just doing mass please, Uh, just going through the questionnaire that you Mr. So and so, you miss so and so, and then just yes or no all the way down. And they were doing you know,

ten or twelve at the time. The blame in part is on all of us because this would not be occurring or not occurring in the extreme way that we're describing. If there were more judges, more resources for criminal defense lawyers, especially for indigence or in depth enquiries, lower penalties. Why do we have all this? We have all this because the legislature toughened up in their view in the nineties, seventies, eighties, and nineties to combat what was an undeadly rising crime rates.

Crime rates have come way down since then, but the laws remain on the books. Two plus million people are the jail or prison, and we have these very superficial proceedings. If you took the person in the street and showed them what you just described the mass play, I think most people would say, oh my gosh, I ever thought of work like that. I mean, that's like what they used to do in Soviet Russia. That's not that's not justice. But they have no idea. Ashley Merchant and I see

very similar types of cases in our law practices. So I wanted to get her thoughts on Alfred please, and on Judge Rakoff's assessment of what he sees as the problem with Alfred. Please. She brought up this new point, and that is that Alfred is another area where prosecutors can control the charges by refusing to even offer a plea bargain unless the defendant admits guilt. I have another case that I can give a parallel to where I have a child who was fifteen years old at the time.

He was alleged to have abused his younger cousin and he said he didn't do it. And he was fifteen, I mean, he was a kid, but he was charged as an adult. It's a twenty year mandatory prison sentence on that. So he was offered ten years pre trial and but a lifetime sex offender registrate and pre trial. He just said, I can't agree that I did something I didn't do. And in that case, the prosecut or

was not willing to accept this Alfred plea. Part of the plea deal in order to reduce the charges from the charges that carried that twenty year mandatory minimum, said if you don't admit guilt, I'm not going to get rid of that charge and let you get the ten year sentence. He just said, I can't do it. I can't admit that I did something I didn't do. So he went to trial. He was convicted. Only was the testimony of his cousin he testified that he didn't do it,

and we're now on appeal. I didn't represent him at the trial, but I now represent him on appeal, and we've gotten an offer to fifteen years, and he's told me he wants to take it, but he cannot admit guild. And I told the prosecutor, you know, I can't put him up and have him under oath admit guilt because I don't think he did it. And I can't put him up there and have him commit perjury. And of course they're saying, well, he's not committing perjury's lying to you.

But how do you know. He's asked me, do I need to lie to get this deal? And you can't lie. I can't have you lie on the stand. I can't have you under oath lie about something. But at the same time, I don't want to be the reason that he can't get a lesser sentence and can't get out prison. You know, he's a kid. I think a lot of times criminal defendants get up there and they lie and say they did something they didn't do just to get

the deal, and I cannot say I blame them. Said that in the federal system, of course, where he works. I think he used the phrase theoretically, this is possible, and he very not so suddenly indicated that's really the exception rather than the rule, at least in the framework of the cases that he sees in the federal system. And I said, Judge, you know what if I told you that it's really really common, and I've done several already this year in the state system here alone. He

seemed to be a little bit surprised by that. But it's really something that's used a lot, and it's used as a way, I think, to permit people to take advantage of plea offers because they think they're gonna get hammered by a judge or by mandatory minimum sentence if they don't take some kind of a plea deal, and so they have this mechanism called an alpha plea and they use it to get past that question when the

judge says, are you in fact guilty? And all you gotta do is say, Jude, I'm pleading under Alfred versus North Carolina, and we think that it's in our best interest to take this plea. I think it's important to parallel the two systems to sort of understand why he would say that the federal government operates completely differently than the state government in prosecutions. When the federal government comes knocking,

they have a solid case, they've got you. I do federal work, but when I get it, I'm like, because I just there's not a whole lot I can do as a criminal defense attorney for the actual charges. What we can do as a criminal defense attorneys, we can work on sentencing. Once the federal government indicts or charges you, they usually have significant evidence against you. And so the state court has to have these alfred police because they

can't move cases otherwise. Where the federal system, the judges they don't want to take a plea from someone that didn't do it. They don't want to take that. That to them is just it's awful. It's a miscarriage of justice. Where in the state system they're just like, line them up, we got to move them. The second thing is they also have a couple rights built in that we don't

have in state court. They have a federal Speedy Trial Act, and so you're not going to sit for three years in jail on a federal case like you do in state court. And that delay is one of the reasons that people want to take Alfred please because they don't want to sit in jail for three years. The other

thing is they tend to give folks bond. In federal cases, they've got a Bond Act also a bail Bond Act, where the judges have a very thoughtful bail hearing and they don't InCAR strate pre trial like they do in state court. In state court, if you're charged with a felony, a serious felony, it's impossible to get bond in most cases. When I was in Fulton County, for example, at the

public Defender, my clients couldn't afford bond. So maybe they'd have a five bond, but they didn't have five hundred dollars. They would be in a position where, unlike the federal court where they've got a speedy trial and a right to bail, there in the state court they've got no bail and they've got no statutory automatic speedy trial right. And they feel desperate. You know, they're arrested, they're in jail. It's an awful, scary, violent place, and they just want

to go home. And they're offered probation and a fine, and boom, they become a convicted felon because they've taken a felony just to get a jail. And we saw that a lot in Fulton County where they would make a lot of like street level arrests where someone would maybe have drug residue. They would arrest ten people for the same crack pipe, you know, and all ten of them couldn't make bond, and so they all put out and boom, now they're all convicted felons out in Cobb County.

We see that here out in the suburbs, but it's a little bit different here. They're scared of the jury. They're scared that the jury is gonna not believe them and they're going to convict, and they're scared of what the judge is gonna do if they lose a trial. So they're scared of that trial tax. And those are really the two reasons to get out of jail, and

they're fearful of that trial tax. It's easy for a client to admit at a burglarized somebody's house, but nobody admits that they molist at a channel that was Ray Gary, retired judge and defense attorney. So a lot of those cases end up going to trial because you know, they'd rather go to trial, lose the trowel gets sent to prison for a long time, then to admit they did it. And the same thing holds true with any crime, but especially in you know, sex crimes, and Alfred Please saves

a lot of trials. So I think it's a valuable tool because if you've got a case where the judge, you know, I was wanting to take a plea burg and along with the prosecutor and the defense lawyer and the defendant, and the only problem is the guy I won't admit it. Then on the Alfred play, you know, then you say, well, we agree that when the prosecutor puts the evidence, there is a significant chance a jury might find me guilty even though I'm innocent. So I'll

go ahead and read of the punishment. I'm not admitting I'm guilty, and so on paper you're guilty, but you just don't have to say those embarrassing words in court. So I like Alford Please. And they've saved a lot of cases from going to trial, which saved a lot of people from getting, you know, much longer sentences than they would have gotten. Like so many things in the

legal system. Plea deals can be extremely complicated, like a high stakes jigsaw puzzle with moving pieces that defendants simply may not be prepared for. A big part of my job as defense counsel is to provide clients with as much information as possible so that they can make the best, most informed decision possible when deciding whether or not to

accept a plea bargain. For example, we have to talk about what happens if they enter a guilty plea or a not guilty plea, what kind of risks are involved in taking a case to trial. I have to let them know everything that is happening and everything that foreseeably might happen with their case. It gets tough sometimes to give people the news that their case may not win, or that it going to jail might be their best

or even their only option. But at the end of the day, it's always the client's choice whether or not they take any given plea deal, and my job is to inform and support the role of a prosecutor is not simply to get a conviction. A prosecutor's role is to pursue justice, whatever that might look like. On the other hand, my primary role as defense counsel is to

be a zealous advocate for my clients legal interests. I'm looking for the best outcome for my client, whether it be defending them at a trial or working to negotiate the best possible sentence in a plea deal. The judge then serves as the referee and is tasked with making sure that everyone is following the rules. Judges and juries alike and the case of a jury trial must remain

impartial when deciding guilt or handing down a sentence. The justice system cannot function if any of those pieces are missing, and it's everyone's job to keep checks and balances on the other players. I completely understand where Judge Rakeoff is coming from and thinking that Alfred Please, at least on paper, may seem like a problem in the justice system that

only guilty people should be punished. But when someone is facing the very real risk of getting an inflated sentence by going to trial, sometimes the best decision they can make in our imperfect system is to take a plea deal and the punishment associated with it. In other words, sometimes it's best to cut your losses and take the better of two very bad situations. A person may not have a family at home, or, like Kevin said, a trial may not be something that they can afford financially.

In cases like that, there has to be a mechanism in place for them to save themselves from the gamble of a trial, even if they don't think they did anything wrong. There's also the reality of the situation that Jesse Evans brought up in the last episode. Our legal system would simply collapse if we did away with plea bargains the vast majority of cases and in some type of negotiated deal, and there simply isn't enough room on the court's dockets for it to be any other way.

Every person has the right to a trial, but if every person exercised that right, the courts would be overloaded in the extreme and the backlog would be unfathomable. Our system is simply not built to handle every defendant having their day in court, and that's an important reality to keep in mind. Individuals can afford to always go to trial, and neither can the system. In the end, the system of plea bargaining saves time, saves money, and offers more certainty.

Put simply, plea bargain is necessary to keep the system working for the next few episodes, we're going to cover a case that hits very close to home with me. It's a case that I worked on for many years. The cases about a woman who hired me to defend her after she was charged with murder in the wake of the shocking death of her husband. There are a lot of pieces to this case and there's much to unpack.

We're going to dive into everything that happened and all of the impossible choices that had to be made next time on Sworn. Sworn is a production of Tenderfoot TV and I Heart Radio. Our lead producer is Christina Dana. Executive producers are Payne Lindsay and Donald Albright for Tenderfoot TV, Matt Frederick and Alex Williams for I Heart Radio, and myself Philip Holloway. Additional production by Trevor Young, Mason Lindsay, Mike Rooney, Jamie Albright, and Hallie beat. All original music

and sound designed by Makeup and Vanity Set. Our theme song is Blood in the Water by Layup. Show art and design is by Trevor Eisler, Editing by Christina Dana, mixing and mastering by Mike Rooney and Cooper Skinner. Special thanks to the team at I Heart Radio from u T a or In rosenbaumd and Grace Royer, Ryan Nord and Matthew Papa from the Nord Group, Back Media and Marketing,

and Station sixteen. I'd also like to extend a very personal and special thanks to all of our contributors and guests who have helped to make all of these episodes possible. You can find Sworn on Facebook, Twitter, and Instagram at Sworn podcast and follow me your host, Philip Holloway on Twitter at phil Holloway e s Q. Our website is sworn podcast dot com, and you can check out other

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