In the end, the choice of whether to take a criminal case to trial or to enter into a plea agreement with the government belongs to the client, and to the client alone. There are times in which a client rejects his lawyer’s advice, goes to trial, and is badly hurt. Then there are times in which a client decides to avoid the risk of trying a case his lawyer thinks he should have tried, and could have won. Counseling a client on whether to enter a plea is bitter work, call it the devil’s work. I do the devil’s work.
A client of mine entered a guilty plea in federal court this week. His name is Jason Zullo. He was an East Haven police officer when federal law enforcement officers burst into his home with an arrest warrant and guns drawn early one morning, holding his wife at gunpoint as they demanded entry into the children’s bedroom. His wife’s eyes still well up in tears when she describes it now, many months later.
I should have taken delight in the prospect of the government feeding on local law enforcement officers. I’ve put kids through college on the money I’ve earned suing police officers in federal court. But the prosecution of Jason Zullo sickened me; it sickens me still.
Jason was tried with conspiring to violate the rights of East Haven residents. The prosecution had its origins in the overheated imaginings of Yale law students. They decided to take the battle for immigration reform to the courts, and ended up persuading the Justice Department to sign on.
Jason and several of his colleagues were called “bullies with badges” at a press conference attended by Justice Department hotshots. They were accused of preying upon illegal immigrants, subjecting them to stops without justification, using unreasonable force against them, and otherwise engaging in discriminatory application of the law. The case made national news.
When I read the indictment, the formal document charging Jason and three colleagues with federal crimes, I was stunned. Far from some vast conspiracy targeting illegal immigrants, I read about garden variety police stops of folks driving cars with illegal license plates, the search of a store believed to be selling illegal license plates, and some minor dust ups with folks in a lock up who were, undoubtedly, unhappy to find themselves in police custody. If these allegations amounted to federal crimes, there is not a police officer in the state who can rest secure in the belief that he or she can do the job of policing without facing a stretch in federal prison.
The prosecution of the East Haven police officers radicalized me, all at once transforming me into a defender of cops. I wanted to try this case to a jury of twelve, to tell the world that the conduct charged here was routine, that this criminal case was the wrong place to play out the highly charged debate on immigration reform.
But my client decided to enter a guilty plea to one count of filing a false or misleading police report, a felony that may well land him in prison when he is sentenced early next year. He did not plead guilty to illegal entry into a store. He did not plead guilty to stopping illegal immigrants because of the color of their skin. He did not plead guilty to beating up an arrestee in a holding cell. He never contemplated entering pleas to such counts. He denies to this day that such things occurred.
So to what did he plead guilty? He did not include in a police report that his car jarred a motorcycle in a chase through East Haven, a chase in which the operator of the motorcycle saw the police officer, knew the officer wanted to stop him, and then tried to evade the officer so as not to be issued a summons for operating an unregistered motor vehicle. The motorcycle operator was a white guy. So, too, was the victim in the other case yielding a guilty plea in this case. Sergeant John Miller entered a plea to using unreasonable force against another white guy. Both alleged victims, it turns out, where white Italian males.
None of this stopped the Justice Department from declaring a victory in this case in one of its ubiquitous press releases. But how do you call this case a victory when the scalp you bring home from battle looks nothing like the trophy you eyed when war was declared?
I respect Jason Zullo’s decision to plead guilty. He wanted to avoid the risk of trial. He wants to be home to raise his family. A short stay in prison seemed best to him. He can be home for his kids. Why risk a long, crippling sentence?
But I am still outraged by this particular federal prosecution and disappointed by Jason’s plea. A jury ought to hear both sides of this case. Giving federal prosecutors a license to declare open season on cops isn’t going to make Connecticut a better place to live. Who is going to protect cops from bullies with briefcases?
UPDATE: SAD BUT TRUE
Sad But True:
A good friend of mine is a New Haven Police Officer. He reports the following incident this morning:
He stopped a motorist for speeding on one of New Haven's main streets. After he stopped the driver, he saw the man was Hispanic. He chose not to issue a citation for speeding, but, instead, to issue a warning. Although he felt confident in his decision to stop the man, and he was confident the man was speeding, he feared federal prosecutors might second-guess his decision to stop a person of Hispanic descent. What if the man claimed racial profiling? Would the federal government open a criminal file, and accuse the officer of violating the man's civil rights?
He didn't want to end up like Jason Zullo, or the other cops in East Haven.
Reprinted Journal Register newspapers.