Connecticut Chief Justice Chase Rogers believes in committees; she also believes in transparency. So I was curious to see what her committee of judges and journalists was all about. I accepted the invitation to speak to the committee about the pros and cons of plea-bargaining with anticipation.
It was an eye-opener.
The meeting took place at studios of WFSB’s television station in Rocky Hill. There appeared to be about 35 people present. I recognized many of the judges and quite a few of the journalists. It was a friendly group; perhaps too cozy with one another for my tastes. I’ve always viewed the job of the press, the Fourth Estate, to be to comfort the afflicted and to afflict the comfortable.
What seemed to be on display was a curious form of agency capture: the press seemed entirely too deferential to the judges in the room. It made me feel as if the press had discounted its value, becoming, in effect, the Third and One-Half Estate.
So I decided to mix things up.
Why wasn’t the press doing a better job of covering plea-bargaining, where the overwhelming amount of work in the criminal courts is done? Well in excess of 90 percent of cases never go to trial.
If you attend a session of court and sit in the gallery, you would marvel at how quickly the docket moves, how efficient it all seems. Defendants plead guilty, typically, in the state courts at least, under a peculiar legal doctrine that permits them to say they are guilty without admitting they’ve done anything wrong.
This hypocritical form of plea is known as an Alford plea, taking its name, as does almost everything in the law, from the name of the Supreme Court case approving the practice. A defendant pleading guilty under the Alford doctrine admits the state has enough evidence, which, if believed by a jury, is sufficient to convict him. He doesn’t admit the evidence is true; the defendant simply agrees to strike a deal to avoid a worse potential outcome at trial.
The terms and conditions of these plea deals are arrived at in private. In less serious cases, prosecutors and defense lawyers, or defendants themselves, strike a deal; in more serious or complex cases, deals are struck in the privacy of a judge’s chambers. The public is excluded from the process.
Why, I asked the journalists assembled in Rocky Hill, doesn’t anyone challenge the practice of private plea-bargaining? It takes a judge’s order and a hearing to exclude the public from a courtroom. Presumably public access to the courts is important enough to ensure that courtrooms are closed except for good cause.
Not so with private plea-bargaining in judicial chambers. Almost all the serious work in plea-bargaining takes place in private, and no journalist utters a peep about it.
As I proposed challenging the practices, I saw a few judges squirm. The press? They wondered aloud what the judges were no doubt thinking – how would business get done if the process were truly transparent?
That was not the response I expected. It felt as though the journalists had been co-opted by the court. The theory of agency capture came to mind: It’s a variant of the Stockholm Syndrome, in which the captive adopts the values of the captor. In agency capture, the regulators adopt the perspective of the regulated. Why was the press so accommodating of the bench?
I probed further.
If the press wasn’t going to seek the right to attend private plea-bargaining sessions, then why not at least try to get the records of what goes on in chambers?
You will almost never see a court reporter sitting in on these sessions, so forget about asking for a transcript. But most judges keep notes about the discussions they have regarding a defendant’s case. These notes are kept in a bench book. Shouldn’t reporters be doing Freedom of Information requests for these?
I confessed my hypocrisy to the assembled judges and press. As a lawyer, I like private plea-bargaining. It promotes candor about the strengths and weaknesses of a case. There’s often a lot I would not say if a reporter were sitting in the room taking notes.
But shouldn’t the public have a greater understanding of why the state brings the cases it does, how sentences and pleas are arrived at and how the value of cases is determined? The public is clueless.
Lawyers and judges routinely talk about the value of a case, the number of years a defendant should serve in exchange for a guilty plea. These values are a function of the seriousness of the alleged crime, the validity of the proof, the accused’s record and attitude and the demands of the complaining witness. Good lawyers generally come to agree about these values: we truck, barter and trade in the private market of human misery, after all.
Shouldn’t the public know how these numbers are arrived at?
Instead, the typical press report discusses the maximum potential sentence as what an accused faces when reporting an arrest. Almost no one gets the maximum. That’s simply misleading.
I had things to say to the judges assembled, too. Why are defendants who go to trial and lose penalized with longer sentences than those who plead guilty? Why impose a tax on persons who stand on their right to trial?
Of course, the judges deny they do that. They say they offer a discount. A discount off what? A maximum potential penalty almost never imposed? The value of a thing is its price, Thomas Hobbes noted long ago. The value of a case is determined by the market, and the market is dominated by pleas.
Why not require judges to consider the last best plea offer to be the value of a case after a trial a defendant loses? Require judges to justify the longer sentence they impose on trial losers, I argued.
I was preaching to folks who seemed altogether too comfortable in one another’s presence. We’re all the worse for that. The criminal justice system is foundering. Clarence Darrow got it right: There is no justice in court. There is willful blindness.