Former EDNY Judge John Gleeson: Why Trials in the USA Are on the Verge of Extinction

John Gleeson, former US District Judge, EDNY and partner in the law firm of Debevoise & Plimpton

As part of an investigation into the US criminal justice system and why this nation produces the largest number of citizens in the world who are in prisons, Frank Report is publishing/republishing articles by various writers and experts.

The following is by the distinguished attorney, former prosecutor, and former judge, John Gleeson.

His legal career includes his work as:

  • Law clerk for Judge Boyce Martin on the United States Court of Appeals for the Sixth Circuit – 1980 to 1981.
  • Private practice of law at Cravath, Swaine & Moore, NYC- 1981 to 1985.
  • Assistant United States Attorney for the Eastern District of New York  – 1985 to 1994 – [Noted for the prosecution of Mafia cases,  and most notably the conviction of John Gotti].
  • District Judge for the Eastern District of NY – 1994-2016. Gleeson was a critic of harsh mandatory sentencing. Ruled against the FBI in landmark racial profiling; [reversed by Supreme Court, Ashcroft v. Iqbal, 2009] Oversaw the prosecution of Jordan Belfort, the “Wolf of Wall Street”.  Gleeson created a new “Federal Certificate of Rehabilitation” to help convicts find jobs.
  • Returned to private practice – 2016,  joining Debevoise & Plimpton to practice white-collar crime defense. He is a partner in the firm.

By John Gleeson

A grand jury presentation can consist entirely of information that would be inadmissible at trial.

A prosecutor may knowingly use illegally-obtained evidence to obtain an indictment.

And if she has evidence in her possession that substantially exculpates the target, she may withhold it from the grand jury.

The grand jury presentation need only establish probable cause to believe the target committed the crime. If 11 of the 23 grand jurors are unconvinced that even that low threshold of probable cause has been met, an indictment can still be obtained. And, of course, it’s all ex-parte, [the defendant is not present] so no one is even there to question the prosecutor’s presentation.

What accounts for all this?

Why do our Supreme Court decisions and federal rules establish a charging process that guarantees that imperfect, ill-advised criminal charges can make it through if the prosecutor presses them?

The answer is simple: because of trials.

Those imperfect, ill-advised charges will come out in the wash when they are subjected to the cleansing effects of a criminal trial in open court.

Indeed, when prosecutors know that such charges will go to trial, where they must be proved beyond a reasonable doubt to the satisfaction of a unanimous jury based on admissible evidence that is subject to vigorous challenge by defense counsel to whom exculpatory evidence must be disclosed, they are not likely to bring them in the first place.

One of the most important issues in criminal justice today is the vanishing trial. Once the centerpiece of our criminal justice ecosystem, the trial is now spotted so infrequently that if we don’t do something to bring it back, we will need to rethink many other features of our system that contribute to fair and just results only when trials occur in meaningful numbers.

The first task in solving a problem is identifying its causes.

Mandatory minimum sentencing provisions have played an important role in reducing our trial rate from more than 20% thirty years ago to 3% today.

Instead of using those blunt instruments for their intended purpose — to impose harsher punishments on a select group of the most culpable defendants — the Department of Justice got in the habit long ago of using them broadly to strong-arm guilty pleas, and to punish those who have the temerity to exercise their right to trial.

The Sentencing Guidelines also play an important role, providing excessively harsh sentencing ranges that frame plea discussions when mandatory sentences do not.

Finally, federal sentencing judges are complicit as well.

In too many cases, excessive trial penalties are the result of judges having internalized a cultural norm that when defendants “roll the dice” by “demanding” a trial, they either win big or lose big. The same judges who will go along with a plea bargain that compromises a severe Guidelines range are too reticent to stray very far from the sentencing range after trial.

Today’s excessive trial penalties undermine the integrity of our criminal justice system.

Putting the government to its proof is a constitutional right, enshrined in the Sixth Amendment; no one should be required to gamble with years and often decades of their liberty to exercise it.

There is also an “innocence problem,” that is, the fact that prosecutors have become so empowered to enlarge the delta between the sentencing outcome if the defendant pleads guilty and the outcome if he goes to trial and loses that even innocent defendants now plead guilty.

But there’s an even larger hypocrisy problem.

Our Constitution claims to protect the guilty as well, affording them a presumption of innocence and protecting them from punishment unless the government can prove them guilty beyond a reasonable doubt. A system characterized by extravagant trial penalties produces guilty pleas in cases where the government cannot satisfy that burden, hollowing out those protections and producing effects no less pernicious than innocents pleading guilty.

The solutions may be from the sweeping (ban those mandatory minimums) to the technical (eliminate the motion requirement for the third “acceptance” point), and include suggested modifications to the “relevant conduct” principle at the heart of the Guidelines, pre-plea disclosure requirements, “second looks” at lengthy sentences, and judicial oversight of plea discussions.

A particularly attractive recommendation would require judges sentencing a defendant who went to trial to pay greater attention to the sentences imposed on co-defendants who pled guilty; few things place today’s excessive trial penalty in sharper relief.

There is no such thing as a perfect criminal justice system. But a healthy one is constantly introspective, never complacent, always searching for injustices within, and determined to address them.

The sentencing reform movement a generation ago disempowered judges and empowered prosecutors. Federal prosecutors have used that power to make the trial penalty too severe, and the dramatic diminution in the federal trial rate is the result.

Our system is too opaque and too severe, and everyone in it – judges, prosecutors, and defense attorneys — is losing the edge that trials once gave them. Most important of all, a system without a critical mass of trials cannot deliver on our constitutional promises.

Here’s hoping that we correct this problem before it is too late.

Copyright © 2018 National Association of Criminal Defense Lawyers. Originally published by the National Association of Criminal Defense Lawyers as the forward to The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It.

 


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Frank Parlato

31 Comments

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  • Frank, this is the best article you’ve posted on your site in a long time. Thank you for this thoughtful analysis!

  • I think I know why Claviger feels as strongly as he does about our justice system.

    Defense attorneys often ‘bond’ with their clients and come to believe that every client is innocent.

    Claviger is now retired which means he probably spent 40 years defending dirtbags, drug dealers and human poop.

    That’s a LOT of clients which he bonded with over the years.

    Claviger kinda reminds me of a legal clown named Ken Klonski.

    I’m sure that Claviger is friends with this clown or at least knows of him.

    That clown is currently representing 2 murderers who murdered an entire family back in 1995. Klonski is claiming that they’re 100% innocent (framed by police) and won’t listen to any evidence which he disagrees with. He just pretends that any negative evidence doesn’t exist, lol.

    These 2 murderers are Sebastian Burns and Atif Rafay and both are guilty as fuck. I’ve read the case files in detail and if Claviger disagrees with my assessment, I wanna hear what he’s got to say.

    Does Claviger support his buddy Ken Klonski on this issue?

    If so, I’m gonna tear him a new butthole. 🙂

    I would like to hear where he stands cuz it’ll tell me just how fair his judgment is regarding injustices, or in this case, fake injustice claims.

    • Bangkok-

      Please ask your math tutor to go over percentages.

      How many criminal homicides were there in the U.S.?
      In 2019, there were 16,425 reported cases of murder or non-negligent manslaughter in the United States. This figure has decreased since 1991, when there were 24,700 reported murder and non-negligent manslaughter cases.

      5 murders
      ——————-
      16,425 Total murders

      = 0.0000304414003%

      According to you, the laws should reflect your 5 murders or 0.0000304414003%.

      Sounds like you are using Shadowstate1958 type statistics.

      ****

      38,800 people died in car accidents.

      In 2017, 14,052 murders by guns

      By your logic, we should make cars and guns illegal.

      Like I said, Bangkok, get some help from your tutor and come back to me.
      ****

      BTW: Was the elf girl I posted to Sultan’s Twitter account to your liking?

      Your archenemies, Sultan and Myself, collaborated together. Just like Joker and Penguin against Batman.

      “The enemy of my enemy is my friend.”

      • Dude, LOL, I have no clue what your post is even referring to since my original post, directly above yours, makes no references to murder statistics or percentages.

        What 5 murders are you even talking about?

        Maybe you meant to post it in another thread? Or are you just a retard? 🙂

        Having said that, I think guns should be more readily available, not less.

        If murders happen then oh well. Oh well, shit happens.

        Besides, if banning cocaine (and giving life sentences for drug dealers) can’t prevent it from being sold on every street corner, then how the fuck would banning guns prevent them from being sold on the black market?

        If people (workers) from Mexico can illegally cross the border by the MILLIONS, lol, then how the fuck can we prevent guns from being illegally brought across the border by the millions too?

        Mexico has strict gun bans yet they have more murders than America, many by automatic weapons and machine guns.

        ..And most of their guns don’t come from the US, they come from South and Central America.

        Gun bans will never work and guns are here to stay.

        Any liberals wanna debate this?

        • Dear Mx. Bangkok,

          Re My Comment:

          —I would like to hear where he stands cuz it’ll tell me just how fair his judgment is regarding injustices, or in this case, fake injustice claims.

          You were claiming to be able to assess whether or not Claviger is biased or unbiased in regards to the United States criminal justice system, by his opinion on 3 murderers, you hand cherry-picked.
          Bangkok you weyattempting to illegitimatize Claviger’s argument for justice reform, in your usual inane manner.

          You are so transparent. You always ask someone an ambiguous question and then claim to have tripped have tripped the individual up. It’s been your pattern for 2 years.

          My comment to you was a poor attempt at highlighting how absurd your request to Claviger is and how ridiculous your proclamation of being able to asses Claviger’s legal fairness is based on two criminal cases.

          BTW: Bangkok have you ever noticed how Claviger and Frank always have to parse your questions and statements to figure out what the fuck you are saying?

          You are such a tard—you make my dog’s turd seem like a sentient being.

          Please Note: Mx. is a gender neutral title.

          • Poor attempt is right, lol.

            If you wanna make a poor attempt at making a foolish point, why bother typing so much stuff into a post that neither makes any sense, nor is humorous?

            Try making it shorter next time.

            That way, it’s lack of relevance will standout and it’ll quickly be understood as unadulterated crap.

            Have a nice day. 🙂

          • Oh…

            Methinks that recent post I made (about being ’emasculated’ by the Mrs.) may have really gotten to Mr. Niceguy and sent him into emotional overdrive.

            Coincidence? I think not. 🙂

            I’ve noticed an uptick in Mr. Niceguy’s pacing since then.

            Knew you’d take the bait and bite down on it hard. 🙂

          • —nor is humorous?

            I wasn’t attempting to be humorous.

            —Try making it shorter next time.

            I don’t usually write with your level of verbiage.

            —That way, it’s lack of relevance will standout and it’ll quickly be understood as unadulterated crap.

            No shit? Thanks for the tip, Walt Whitman!

            Scott Johnson’s sperm are smarter than you are.

            —may have really gotten to Mr. Niceguy

            Regarding Mrs. NiceGal, you hurt my feelings kind of—I’ve also been bored as fuck over the last 2 weeks.

            I always enjoy your insults you [redacted].

            Good night, you little dip shit! 🙂

        • Bangkok,
          Guns have been banned in many civilized countries, i.e., First World ones, and their homicide statistics reflect a massive improvement toward the minimization of their use.

          You like Klonski’s the Clown approach to problem-solving in this instance.

          I am starting to consider leaving your newly formed group!

    • Pious Bangkok,

      Have not had time to reply to this particular comment yet — nor to read about the case that you cited (Will try to do that by the end of the week). I will tell you, however, that all criminal defense attorneys are bound to challenge evidence that is legally inadmissible even if by doing so, they are helping to free people that may have committed the crime(s) of which they are accused.

      You may not understand this principle — or you may disagree with it. But it is, in fact, a cornerstone of our entire legal system.

      Thankfully, you didn’t choose to be a criminal defense attorney. Otherwise, it would have been a very short career.

  • Is this guy on drugs? The system is broken but “on verge of extinction”? Nope.

    The justice system, especially the use of the grand jury, isn’t going to change. I would love for the grand jury system to go away. I wish most people understood how meaningless and manipulated a grand jury is. The grand jury is bullshit, political cover that prosecutors use as a weapon to avoid blame while very much dictating exactly how the case will go forward. Most people have no clue that a grand jury is the puppet of the prosecutor, that the prosecutor has absolute control over everything they see, hear, read, or do about a case. A grand jury actually has a great deal of power, they could force the prosecutor to either dissolve them or be their puppet, but they do not know this because the prosecutor needs their ignorance to puppet them instead.

    That is just grand juries. Not even getting into the boon that cases can bring to those with political aspirations. Or if get into the huge amount of money that moves around to politicians, prosecutors, and judges via the privatization of jails. These jails make money by headcount. Basically, think of it as C number of people times $D amount – cost of watching those people = profit.

    Those jails make the most money when 2 conditions are met – (1) when the jail is filled beyond capacity and (2) most, if not all the inmates, are non-violent. The money flow literally benefits to go after low-level drug dealers, marijuana users, and other minor offenses. Violent offenders need more guards, more fights, and more medical treatment. Every dollar that goes to those is money taken away from the profit margins. It’s why you keep hearing of bad medical conditions, refusal to act on COVID, and more. Because all those actions hurt the profit margins.

    Why does this matter? Mandatory jail sentences mean consistent and known sources of profit, something all corporations love. I don’t know if Keith is at a private jail, but he is a perfect example of the type of criminals all private jails want – guaranteed income for several decades at least and almost no cost to watch as non-violent (in jail terms, not towards women). A private jail would love to be filled with nothing but Keith Ranieres.

    All of this is very much by design. Do you seriously expect those that benefit from it, aka politicians and judges at all levels of government, to actually change it? You have lost your damn mind to think this is true or going to happen even in your great grandchild’s lifetime. The only time change occurs is when the people force it or when those in charge benefit from it. The people do not understand the justice system enough to force it (see grand jury example) and those in charge most definitely would not benefit from changing it.

  • Not sure how this benefits Raniere in any way. Part of the author’s point is that prosecutors can use weak evidence that wouldn’t get a conviction in court to get a grand jury indictment. They then use this to get a defendant to cop a plea, that’s why there aren’t many trials. But that doesn’t really follow because if this was the only evidence to be presented in court, then the defendant and his lawyers would obviously go to trial. It seems that the prosecutors simply need to have enough evidence to warrant an indictment but they always have much more solid evidence that would withstand the rigors of beyond reasonable doubt to get the defendant convicted in a trial and that is why these defendants plea and don’t go to trial.

  • Prison is big business for the public sector unions.

    And the current system destroys lives, families, and kids.

    Meanwhile, thugs as young as 13 plunge knives in innocent people and walk free.

    I do not mean to extend these sentiments as a call for leniency in Vanguard’s case.

    Bad facts make bad law.

    But the teen criminal of today needs to face the same punishment as adults for the vile, vicious remorseless crimes they commit.

  • In the US, you are either in jail, in prison, or some other form of detention; on probation, under some other form of legal supervision, a criminal, a cop, a ‘correctional’ officer or lawyer, a victim, or very afraid.

    The US has become a Criminal ‘Justice’ State.

      • Shadowstate-

        Will-you-ever answer any of Claviger’s or my counter arguments/questions?

        Or are you going to stick with the monologues?

      • — But killing people or burning down a city will be perfectly legal.

        … Or attacking the Capitol building. 😂

        I wish I could take the radical-left and the alt-right and shoot them to the sun on a 🚀 ship. You all deserve one another.

        The Capitol had never been attacked in 245 years. Congrats to all the traitors.

      • Looks like if you’re a Trump supporter, murdering a Capitol Hill Police officer by smashing in his head with a fire extinguisher is OK.

      • Shadow,

        I sincere believed an intelligent man like yourself would welcome intelligent spirited debate. AnonyMaker, Claviger, and myself have all tried to engage you in debate and discussion. I wonder why you always refuse.
        I am open minded. I question the integrity and rationality of my beliefs.

        If you had valid information that nullified my own beliefs/information I would change my mind. Most recently I had to concede some ground to Claviger.
        Did I have you pegged wrong? A simple yes or no will suffice.

        ****
        BTW:
        You open my eyes 2 years ago to the fact the mainstream media glosses over important news when you shared the link to the Jeffery Epstein Miami Herald article regarding the leniency in Epstein’s initial criminal plea bargain.

        I was blown away by that article. It took the metoo movement to bring the bastard to justice. The mainstream media let that story slide under the rug.

    • I guess if 1.5 of 100 people (1 in 33 if you include probation) in the US are in jail, then everyone is in jail.. lol.

      I am not “afraid” of going to prison at all. And I should add that neither is most people. Do you know why? Because I and most people don’t commit crimes that send you to jail.

      If you prefer another country’s laws or criminal justice system, then I suggest you try and move there. Maybe that will solve your fear.

      • David-

        You are missing part of the point. Many of these criminals are over-charged for their crimes. Even a plea bargain results in a lengthier than appropriate sentence.

      • I think people are more afraid of being a victim more than going to jail, mostly US. I’m afraid of neither, as I’m an honest person and live in a very civilised and safe place.

About Frank Parlato

Frank Parlato Investigates

Frank Parlato is an investigative journalist.

His work has been cited in hundreds of news outlets, like The New York Times, The Daily Mail, VICE News, CBS News, Fox News, New York Post, New York Daily News, Oxygen, Rolling Stone, People Magazine, The Sun, The Times of London, CBS Inside Edition, among many others in all five continents.

His work to expose and take down NXIVM is featured in books like “Captive” by Catherine Oxenberg; “Scarred” by Sarah Edmonson; “The Program” by Toni Natalie, and “NXIVM. La Secta Que Sedujo al Poder en México” by Juan Alberto Vasquez.

Parlato has been featured prominently on HBO’s docuseries “The Vow” and acted as lead investigator and coordinating producer for Investigation Discovery’s “The Lost Women of NXIVM.” He was credited in the Starz docuseries, 'Seduced,' for saving 'slave' women from being branded and escaping the sex-slave cult known as DOS.

Parlato has appeared on the Nancy Grace Show, Beyond the Headlines with Gretchen Carlson, Dr. Oz, American Greed, Dateline NBC and NBC Nightly News with Lester Holt, where Parlato conducted the first-ever interview with Keith Raniere after his arrest, which was ironic since many credit Parlato as being one of the primary architects of his arrest and the cratering of the cult he founded.

IMDb — Frank Parlato

If the whole world stands against you sword in hand, would you still dare to do what you think is right?

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