'The Economist' on Plea Bargaining and Coerced Testimony, The Atlas Society

End plea bargaining : that’s the radical proposal for America’s justice system given this week by one of the most prestigious magazines in the English-speaking world.

The less radical proposal: reform it . The Economist backs up its advice with an article that—quoting two federal judges and BRC contributing writer James J. Treacy— shows how powerful prosecutors have become in a system that is now 95 percent devoid of trials.

Some defendants may plead guilty because they are guilty. But as the Economist explains, some innocent people may do it “because harsh, mandatory-minimum sentencing rules can make such a choice rational. Rather than risk a trial and a 30-year sentence, some cop a plea and accept a much shorter one.” The Innocence Project, the magazine says, lists 30 defendants who’ve been proved innocent by DNA after pleading guilty. The magazine notes Judge Jed S. Rakoff as among those skeptical that all who plead guilty are guilty. (It doesn’t note, but Treacy did in a piece for the BRC, that Judge Rakoff is a defender of giving witnesses incentives to help prosecutors.)

My favorite moment in the article comes from a case that did go to trial:

James Fleishman, a former manager at Primary Global Research, was first approached by FBI agents to help them ensnare his superiors. When he refused to co-operate, insisting he knew of no illegal activity, he became a target himself. His conviction rested on co-operation from two former clients who had been put under immense pressure to be helpful to prosecutors. (They told one they would seek to have him jailed for 50 years if he declined their offer.) In a self-published book , Mr Fleishman argues that the testimony of both was littered with fabrications, including phone conversations that never took place. The co-operators got probation. Mr Fleishman was jailed for 30 months.

There is no way to confirm Mr Fleishman’s version of events. There was, however, an intriguing moment at his trial. During cross-examination Mr Fleishman’s lawyer complained that his opposing number was mouthing words to a co-operating witness who appeared to be going off-script. The prosecutor’s response was: “If I did that, and I’m not disputing what he said . . . I’m sorry.”

But what is most disturbing is not when prosecutors violate the rules, but what is considered within the rules. As the Economist points out in its editorial :

If a defence lawyer offers a witness $100 for a false alibi, he is guilty of bribery. But if a prosecutor offers a co-operating witness something far more valuable—the chance to avoid several years in a cell—that is just fine.

It’s fine according to current law. And it’s fine if the goal is to let the government imprison anyone it wants. But if the goal is justice, it isn’t fine at all. It’s a system suited to produce slanderous testimony and false convictions.

The Business Rights Center has been writing about these issues for some time. Here are some highlights: