Hon. Jonathan Lippman: Prosecutors Overtake Criminal Justice, Virtually Eliminating Trials

Hon. Jonathan Lippman

Below readers will find the preface, written by the Honorable Jonathan Lippman, former Chief Judge of New York and the New York Court of Appeals, on behalf of an important new report on the decades-long impact of the trial penalty in New York State. It was published by the New York State Association of Criminal Defense Lawyers [NYSACD] and the National Association of Criminal Defense Lawyers.

The report is entitled: THE NEW YORK STATE TRIAL PENALTY: The Constitutional Right to Trial Under Attack

The Honorable Mr. Lippman is the former Chief Judge of New York and Chief Judge of the New York Court of Appeals, the state’s highest court.  He is in private practice now, with Latham & Watkins LLP

According to Latham and Watkins,  “As the state’s Chief Judge, he championed equal access to justice issues in New York and around the country and took the leadership role in identifying permanent funding streams for civil legal services. Chief Judge Lippman made New York the first state in the country to require 50 hours of law-related pro bono work prior to bar admission and established the Pro Bono Scholars and Poverty Justice Solutions Programs to help alleviate the crisis in civil legal services. He strengthened the state’s indigent criminal defense system, addressed the systemic causes of wrongful convictions, created Human Trafficking Courts across New York State, and led efforts to reform New York’s juvenile justice, bail and pre-trial justice systems…

In 2008, Judge Lippman received the William H. Rehnquist Award for Judicial Excellence…  In 2013, the American Lawyer named Chief Judge Lippman one of the Top 50 Innovators in Big Law in the Last 50 Years. A New York Times article in December 2015 stated that Judge Lippman had left an altered legal profession in New York by using ‘his authority to promote an ideal of lawyering as a public service.’

Judge Lippman was the 2016 American Bar Association’s John Marshall Award recipient, an award whose prior recipients include Supreme Court Justices Anthony Kennedy and Sandra Day O’Connor. Judge Lippman presently serves as the Chair of the Independent Commission on New York City Criminal Justice and Incarceration Reform, a 27 person blue-ribbon commission, formed to examine the future of the Riker’s Island jail facilities in the context of systemic criminal justice reform.”

By the Honorable Jonathan Lippman
(Ret.) Chief Judge of New York
Of Counsel, Latham & Watkin

Both the United States Constitution and the New York State Constitution guarantee those accused of a crime the right to a trial at which the state must prove guilt beyond a reasonable doubt. But in the modern criminal legal system, trials have become a scarcity.

Recent data shows that in New York State 99 percent of misdemeanor charges and 94 percent of felony charges are resolved by a guilty plea. New York is by no means an aberration.

Across the country criminal trials are vanishing at an alarming rate. A principal cause of this phenomenon is the simple fact that in virtually every jurisdiction people plead guilty to avoid significantly greater punishment, having nothing to do with their guilt or innocence.

If they contest the charge against them, litigate the legality of evidence that will be offered, or insist upon a trial, they will receive a much harsher sentence. This trial penalty has fundamentally transformed the criminal legal system into a plea system in which trials are nearly extinct.

This development is neither congruent with the principles upon which the nation was founded nor is it conducive to a healthy justice system. Nowhere is the right to a jury trial more sacred than in New York State.

Decades before the revolution, the importance of the jury trial was forever woven into the fabric of American
ideals in the trial of John Peter Zenger. Zenger’s vindication by a jury on a charge of seditious libel in 1735 has been
characterized as the spark that ignited the fire of the American revolution.

John Peter Zenger was a printer and publisher of a newspaper who broke the law by publishing articles critical of the colonial governor of New York. He was arrested. It was clear he broke the law, but the jury voted to acquit him effectively nullifying the law, and in effect granting freedom of the press to this land. The jury defied the prosecution and the judge, voting to acquit despite the clear evidence that he broke the law against criticizing the government.

An American founder, Gouverneur Morris, later wrote, “The trial of Zenger in 1735 was the germ of American Freedom, the morning star of liberty that subsequently revolutionized America.” [Quoted in “John Peter Zenger” by Livingston Rutherford (NY 1941]]

The Framers of the United States Constitution considered the right to a jury trial as important as the right to vote. John Adams wrote that “[r]epresentative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds.”[ii The Revolutionary Writings of John Adams 55 (. Bradley Thompson ed]

You only get a jury when you go to trial. John Adams believed that jurors have a duty to vote their conscience even if it does not conform with the prosecutors’ interpretation of the law or the fairness of the law.

This bold statement reflected the consensus view of the Framers that trials not only afford a protection for the accused, but they protect everyone in society by promoting transparency and citizen participation when the government invokes
the awesome power to prosecute.

The current plea system, which has overtaken the criminal process, is anything but transparent and rarely involves public trials.

The ever-increasing size and scope of the criminal legal system has been accompanied by laws, policies, and practices that have shifted the historic authority of judges to fashion appropriate sentences to prosecutors who wield extraordinary power to determine the magnitude of criminal sentences through their unfettered charging power.

Mandatory minimums sentences, sentencing enhancements, and charge selection provide the prosecutor with the leverage to extract guilty pleas under the threat of vastly increased punishment upon those who assert their rights. This leverage is available from the first appearance, when the threat that a person will be unable to afford bail can be used to induce an early guilty plea, throughout the entire process, where, at each step of the way, waivers of various rights are the price of a reduced sentence.

In this way, guilty pleas operate to foreclose litigation that may expose unlawful government action or police misconduct.

Of course, sheer volume also places enormous pressure upon judges and defense counsel, as well as prosecutors, to process cases as quickly as possible.

Judges’ rightful concern that every case be heard and a woeful underfunding of the defense function have transformed many courts into guilty plea conveyor belts. While there is no doubt some value in promoting efficiency and early case disposition, it is a great concern when that objective overtakes the larger purposes of the justice system. When punishment is significantly enhanced merely because an individual asserts fundamental rights, it makes a mockery of the notion of proportional, individualized justice.

A report issued by the New York State Association of Criminal Defense Lawyers in collaboration with
the National Association of Criminal Defense Lawyers appropriately shines a light on the nature and breadth
of the trial penalty in New York State.

See Report Here: 

All stakeholders and policy makers should take note of the defense bar’s concerns and consider seriously the principles and proposed reforms. The data and the compelling stories recounted in this report should provoke informed debate over the nature and extent of the trial penalty and prompt a reconsideration of whether the palpable erosion of the right to trial is an acceptable feature of the modern criminal legal system.

Thomas Jefferson said that if he were forced to choose between a people’s right to vote or their right to be tried by a jury [versus a trial by the government], he would opt for the jury trial. He explained that anyone can make a law, but only a jury can approve a law. He said, “Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative. The execution of the laws is more important than the making [of] them.”

 


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  • Once again, the most important article gathers fewer comments than a nudity pictorial.

    Thanks for showing some real skin, Frank.

    Old times!

  • Re Sentencing Reductions & Plea Bargaining:

    “Trials do NOT increase a person’s prison penalty. Instead, plea deals simply REDUCE jail time from the ‘standard’ amount.”
    -Bangkok

    Bangkok makes an excellent point! Please read the following example:

    If a prosecutor offers a defendant, let’s say a drug dealer, a plea bargain of 5 years vs a 20 year sentence; why is the punishment a 20 year sentence at all?!?!? .

    Point being, the crime that was committed is the same crime before and after the plea deal. The punishment should simply be the 5 years. Simple admitting to a crime sanitizes the crime?

    A simple admission of guilt can turn a major felony class “A”Felony (20 years) into a class “C”Felony(5 years).

    How can the original full sentence be just to
    begin with?

    The punishments do not fit the crime to begin with!!!

  • A very compelling report. Prosecutions have turned into a mill or factory. It’s not about justice anymore. Prosecutions have taken this warped sense of corporatism and errantly apply that to criminal cases. It should not be about ‘numbers’ and how many they can get put away. It should always be about justice.

    As an aside, it is a bit odd to see anyone championing John Adams as one who sought justice. Look into his history with his persecution of Benjamin Bache (Franklin’s grandson) and William Duane and their paper, The Aurora. Maybe this problem is way older than it appears. Maybe it’s always been a system of looking out for yourself first and justice/victims as an afterthought.

  • Another aspect is the jury system itself is fundamentally flawed. For a lot of reasons but one of them juries themselves. They tend to be populated with dumbasses that make decisions more on emotion rather than evidence and facts. They allow details to color their judgment that isn’t necessarily relevant to the case but sounds juicy and so given more weight. Or they don’t like the way the guy dressed, or looked, or an expression he made or other BS that doesn’t mean a thing really.

    The constant threat of a stupid jury is often what helps prosecutors abuse the settlement system. Even your own lawyer will push you to settle. Not because they don’t believe you. Generally, lawyers on both sides do not give two craps if you are guilty or not, they just want to win. No, they tell you to settle because juries, regardless of evidence, is so damn random that its incredibly risky to go to a jury trial. That feeds into the threat of a harsher punishment if do not settle early. If defendants knew they would have competent fair juries, that would eliminate a lot of settlement leverage prosecutors would have. Personally, I would just ask for a judge trial, that is how unpredictable juries can be as they are truly something to be avoided whenever possible.

  • News from Boston
    The President of Boston’s Police Union is an alleged child molester.

    From the Boston Globe

    For years, the Boston Police kept a secret: the union president was an alleged child molester

    A father and his teenage daughter walked into the Hyde Park police station last August and reported a heinous crime.

    The girl said she had been repeatedly molested from age 7 through 12 by former Boston police union president Patrick M. Rose Sr. Five more people soon came forward, accusing Rose of molesting them as children over the span of three decades, including the girl’s own father.

    Rose being tagged as a child sexual abuser was news to the city when he was arrested and charged last summer. But it wasn’t news to the Boston Police Department where Rose served for two decades as a patrolman.

    Despite evidence in 1995, Rose kept his badge, worked on child sexual assault cases, and ascended to power in the police union.

  • Frank, be a lamb and have a word with ultra-spanker SultanOfSix, aka, Haroon, about what his people are doing in not-a-real-country Pakistan.

    https://abcnews.go.com/International/wireStory/france-asks-citizens-leave-pakistan-amid-violent-protests-77089162

    These funny looking people are out of control.

    In France a few months back, a foreign worshiper of not-a-prophet muhammad, (a paedophile having raped nine year old Aisha), chopped off the head of a French teacher in his own country after accusations he showed pictures of not-a-real-prophet muhammad.

    When French president Macron said the country had to deal with muslim violence, the muslims spun it round and started attacking France, pretending it is them who are victims, while happy to live in White France.

    And they lose their shit about the HILARIOUS muhammad cartoons too.

    Do you think they shake the milkman’s hand to Kristin Crooked in Pakistank too?

  • Frank and Claviger are both misunderstanding the TRUE problem of the justice system.

    The problem with our justice system isn’t plea deals.

    Plea deals exist because the justice system would COLLAPSE overnight — requiring “10 year long” waiting lists for trial (along with bankrupting its own coffers) — if plea deals weren’t used so heavily.

    The PROBLEM isn’t plea deals.

    Trials do NOT increase a person’s prison penalty. Instead, plea deals simply REDUCE jail time from the ‘standard’ amount.

    Although that may seem like the same thing to a simple-minded person (like Claviger) it’s really NOT the same thing.

    The PROBLEM is that our ‘standard’ prison terms (for crimes in the United States) are much harsher than other places —– making our ‘standard’ penalty (after losing at trial) too harsh to contemplate. Thus, most people plead guilty.

    Thus, you shouldn’t be arguing to give everybody a ‘fair trial’ —- since that’s IMPOSSIBLE, both logistically and financially. Plus, most of them would lose anyway and it wouldn’t change a fucken thing, since most people charged are guilty as fuck.

    It’s like arguing that everybody in the world should have adequate food and shelter. Yes, they should (in a perfect world) but it’s just not possible logistically or financially.

    Stop suggesting STUPID things, Frank.

    You can’t be convicted at trial unless you’ve done something wrong OR unless you’re just so unlucky that there’s serious evidence against you even though you’re innocent.

    But shit happens. The world ain’t fair. Sometimes kids die of cancer and that’s not fair either, but it happens. Some innocent people will be convicted too. If you’re unwilling to stomach that outcome, then you cannot have a justice system.

    What you should be arguing for is REDUCING the standard/maximum jail time for each type of crime.

    If we reduce standard/maximum prison terms, then we’ll reduce the potential jail terms for innocent people who wanna roll the dice at trial. It’ll increase the number of trials a bit, but not by much. Plus, it would also reduce jail terms for people who take plea deals (to token sentences). It’ll be more like Europe.

    Problem solved. We just need shorter prison terms for each crime.

    You can’t ask prosecutors to stop filing so many charges. That’s like asking a lion to stop killing gazelles. It’s what they do.

    The problem in America is that we have inhumane levels of prison time for relatively smaller crimes, especially compared to Europe and other places.

    Have a good day.

    • Once upon a time there was a political operator who only held appointed positions, never elected.

      He never had the credibility to win an election..instead, he always relied on brown-nosing “friends” to get political appointments.

      He traded on his willingness to use those appointed positions to enable corrupt regimes in ways that resulted in unrest, suffering, violence, death, and more.

      Yet…he always found a way to rationalize to himself his acts, because, as long as “he’s ok,” and finds another way to temporarily rationalize everything, that’s all that matters to him.

      Imagine trying to use your political contacts to FRAME your business partners in attempts to scare up financial settlements.

      Imagine LYING to people, trying to build legal cases on the premise that they could be “won” because someone was “so unlucky that there’s serious evidence against [them] even though [they’re] innocent,” and, because “shit happens. The world ain’t fair.”

      Imagine spending your time posting messages on Frank’s blog, using a name like “The Retard,” trying to scare readers with broad generalizations about supposedly willing prosecutors and “inhumane levels of prison time for relatively smaller crimes.”

      All just another day in the life of the disgraced former federal prosecutor, Dennis K. Burke.

  • I love this angle that Frank Report is taking about discussing the justice system and truth. Very refreshing and interesting.
    Kudos, Frank Report team!

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