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Prison Ministry
The Plea
THE PLEA
Written, Produced and Directed by Ofra Bikel
ANNOUNCER: Tonight, FRONTLINE tells the stories of ordinary people
caught up in a nightmare….
NARRATOR: Every few hours, every day, all across the country,
new and old television shows demonstrate justice at work. Americans
love trials. Everyone knows the rules….
JOHN LANGBEIN, Prof of Law & Legal History, Yale U: The
public perception of our criminal justice system is deeply shaped by
television, and that perception is that jury trials routinely occur
as a way of deciding whether somebody is guilty or innocent of the offense
of which he or she is suspected or accused.
BRUCE GREEN, Prof of Law and Ethics, Fordham U: Any student
in a civics class in elementary school or junior high school will learn
about a system with a trial by jury and a right to counsel and proof
beyond a reasonable doubt. And it won't remotely resemble the system
that we have….
NARRATOR: The 6th Amendment to the Constitution guarantees
every citizen the right to be judged by a jury of his or her peers.
JUDGE: Do you want to give up those guaranteed rights and
proceed to plead guilty today?
NARRATOR: Yet about 95 percent of all people who are convicted
of felonies across the country give up that right and plead guilty.
Most of these guilty pleas involve bargains in which the accused pleads
guilty in exchange for a lesser sentence or a reduced charge…
Judge CAPRICE COSPER, Harris County Criminal Court: The system
would collapse. If every case that was filed in the criminal justice
system were to be set for trial, the system would just entirely collapse…
NARRATOR: Stephen Bright is a defense attorney, professor
of law both at Yale and Harvard, and the director of the Southern Center
for Human Rights in Atlanta.
STEPHEN BRIGHT, Dir, Southern Ctr for Human Rights: Well,
it's not unusual for lawyers who handle a high volume of cases to not
know their clients' names. I go to courtrooms all the time where you
see the defense lawyers coming in, and they'll stand up in the front of
the courtroom and call the names of their clients, because they don't
know who the clients are, and ask them to raise their hand…
STEPHEN SCHULHOFER, Professor of Law, New York Univ: The
public believes that every criminal defendant has a right to the effective
assistance of counsel. And that is just so far out of touch with reality,
it's hard to even begin describing it.
STEPHEN BRIGHT: It doesn't matter that the lawyer may be
conscientious, just the system makes it impossible for that lawyer
to do his or her job. People may be not guilty, people may be guilty
of some less serious behavior than what they're accused of. Many of
the people that come into the court system are mentally ill, may have
been put up to it by somebody else. The lawyer won't know any of that…
NARRATOR: Erma Faye then offered to plead guilty.
ERMA FAYE STEWART: Even though I wasn't guilty, I was willing
to plead guilty because I had to go home to my kids. My son was sick.
And I asked him, "Listen, now, you know-- you know, I can plead for
five-year probation. You know, just-- just let me go home to my kids."…
STEVE BRIGHT: One reason that a lot of people plead guilty
is because they're told that they can go home that day because they'll
get probation. What they usually don't take into account is that they're
being set up to fail…
NARRATOR: There are about four million people on probation
across the United States, offenders who live in the community under
supervision….
NARRATOR: Among their obligations, they often have to pay
fines, court charges, probation fees and for different treatment programs
that they must attend, all of which constitutes a sizable source of
revenue for local governments…
STEVE BRIGHT: Many of these people are poor. They're destitute.
They have no money at all, and yet they're going to be told to pay
a fine. They're going to be told to pay a fee to a probation officer every
month-- I mean, all sorts of consequences that are going to flow. And
perhaps the one that's least understood is that the failure to meet these
payments and meet the conditions of probation is going to bring that person
right back into court, and they're going to face probably more time in
prison than they did originally because now they're going to be punished
for violating their probation.
BRUCE GREEN, Professor of Law, Fordham Univ: There's a lot
of harsh consequences. You may not be eligible for public housing.
You may lose the right to vote. You may not be able to get certain employment.
If you're an immigrant, you may be deported. So it's no great shakes
to get a conviction and probation…
STEPHEN BRIGHT: The courts are sort of like finance companies
now. They're trying to collect all this money from people, and of course,
the people don't have any. I mean, this is like trying to get blood
out of a turnip. I mean, we're talking about the poorest people in our
society, who are really barely surviving. And so they can't pay, so
the probation officer renegotiates with them and sometimes even go back
to court and extend the probation. And so they're always paying. And it
really is very much like a high-interest loan. I mean, it's like you
never get it paid off.
NARRATOR: Those indicted in the drug sweep who refused to
take a plea and couldn't afford bond spent five months in prison awaiting
trial. The first trial opened in the Robertson County courthouse on
February 19th, 2001. It soon became clear that the evidence was worthless
and that the confidential informant had lied to the prosecution.
JOHN PASCHALL: The informant that was used by the law enforcement
was not credible in his testimony. And if someone is not credible to
me, then I cannot see putting that person on the witness stand and trying
a case. So we dismissed-- I dismissed the cases.
NARRATOR: Within a few weeks, all the cases -- except those
who had pled guilty -- were dismissed….
NARRATOR: No apology would help Erma Faye. Three years after
she pled guilty in order to go home and take care of her children,
she was destitute. Because of the plea, she's ineligible for both food
stamps for herself and federal grant money for education. She cannot
vote until two years after she completes her 10-year probation, and she
has been evicted from her public housing for not paying rent. Her children
sleep in various homes, and she is homeless. She spends her nights outside
the housing project, waiting for the morning, when she can go to her
work as a cook. Her job pays her $5.75 an hour…
STEVE BRIGHT: One of the corrupting influences in our courts
is that many localities depend upon the courts as a major source of
revenue, that the speeding tickets and the driving while under the
influence of alcohol tickets and the money for marijuana possession
and all of these crimes is to generate money. But when the courts are
in pursuit of profit, that's in conflict with being in the pursuit
of justice.
[www.pbs.org: More on the Hearne, Texas, cases]
NARRATOR: Erma Faye will be under probation for at least
seven more years. The fact that her case would have been dismissed
with all the others, had she not taken the plea, makes no difference.
ALBERT ALSCHULER, Professor of Law, U of Chicago: It's very
difficult once you've pleaded guilty. The guilty plea sort of puts
a lid on the box, regardless of what's inside the box. It's a system
that's designed to keep the truth from coming out. Plea bargaining has
nothing to do with justice. It has to do with convenience, expediency,
making the life of prosecutors and defense attorneys easier and more
profitable. It's designed to avoid finding out the truth. It's designed
to avoid hearing the defendant's story…
PHYLIS GAMPERO: I really thought that Charlie probably would
have went to a trial, you know, and he would have been acquitted because,
you know, he didn't do it…
CHARLES GAMPERO, Sr.: Now he's telling us if we go to trial
with this, he will give my son the maximum of 25 to life. He doesn't
want to know if he's innocent. We had started to pick the jury already.
I think there were two jurors picked, if I'm not mistaken. Then they
came up with a plea deal. Naturally, we said, "That's crazy." We didn't
want a deal…
CHARLES GAMPERO, Sr.: He told me point blank, told me and
my ex-wife, he said, "If I-- I will give your son 25 to life, so you
better take the plea. Or if you don't take the plea, he's getting it."
NARRATOR: According to Professor Green, these kinds of threats
are constitutional and legal.
BRUCE GREEN, Prof of Law and Ethics, Fordham U: Some years
ago, a defendant argued to the Supreme Court it's inherently coercive
if the prosecutor says to me, "You can plead guilty and get 3 years
in jail. Otherwise, you can go to trial and have all your trial rights,
but if you're convicted, you face 30 years in jail." That sounds like
coercion. And to you and me and most ordinary people, that sounds pretty
coercive. But under the Constitution, that's not considered coercive.
And so if you plead guilty with-- in order to avoid an infinitely harsher
sentence, that's considered a voluntary plea…
life.
STEPHEN SCHULHOFER, Professor of Law, New York Univ: Innocent
people are convicted at trial. So this happens at trial. People who
defend plea bargaining will say, "Well, sending people to trial doesn't
necessarily guarantee perfect results." But what the guilty plea system
guarantees is that when you have miscarriages of justice, the victim
of it is going to face staggering sentences because those sentences are
not a consequence of justice. Those sentences are a consequence of the
need to grease the wheels of the system. So they become the example or
they become the grease or they become the object lesson. And what we
see, the next time around, the prosecutors says, "Well, you want to go
to trial, that's your right. You can be just like Mrs. So-and-So. And
look what happened to her."…
JOSEPH WEINGRAD, Victim's father: And the judge said, "No,
you've got exactly 15 minutes. You go outside, you talk to your clients
and you're back in here in 15 minutes with the decision. And I'm telling
you now, if you do not take the plea, and I find, or we find your client
guilty, he's going to get 25 to life. And once the trial commences, I
will not entertain any pleas. The trial will go through to its conclusion.
And if he's guilty, 25 to life. Go talk to your client."
CHARLES GAMPERO, Jr.: I'm saying to myself, "Well, this is
the Judge that's going to be handling the trial. This guy is going
to make the decision. If my lawyer objects something, he's going to
decide whether it"-- you know, "it's going to upheld or sustained, whatever.
Who"-- you know, "Now I'm against everybody. Who's on my side here?"
My lawyer was standing, like, on the other side of the hallway, and I
was kind of looking at him, like, "Are you going to give me any type
of advice here? Are you going to tell me anything, like, should I do
it, shouldn't I do it? You don't have to guarantee me anything, but you
know better than me. Explain something to me. Tell me something."
Ofra BIKEL: He didn't…
STEPHEN SCHULHOFER, Professor of Law, New York Univ: A lawyer
who goes to trial has a strong duty to investigate the case, to interview
witnesses, to look for defenses, to prepare for cross-examination. A
lawyer who plans to plead guilty can make a tactical judgment that it's
not worth his time. So in effect, the defendant not only waives his
right to a public trial and all that that entails, he also, in practice,
is waiving his right to legal research and to thorough factual investigation
by his own lawyer…
JOHN LANGBEIN, Prof of Law & Legal History, Yale U: Any
of us will plead guilty if the disparity between what we're threatened
with if we go to trial and lose, and what we get if we don't, is increased
enough…
PAUL NUGENT, Defense Attorney: We're actually in the courtroom
for a pre-trial hearing. The district attorney's first assistant
comes to me and pulls me aside and kind of stuns me. He says, "Will
Kerry consider a plea bargain?" It was shocking and surprising because
for 20 years, all you had heard from the district attorney's office
was this vicious rhetoric that Kerry was this heinous criminal who deserved
to be executed for the rape and mutilation of this young woman, and
all of a sudden, they're offering him freedom. All he has to say is one
word and he gets to go home: guilty…
NARRATOR: Convicted and sentenced to death, he spent years
on death row, where he was abused and raped. He tried to commit suicide
and was saved. He then tried again by mutilating himself. He left a note:
"I really was an innocent man." The prosecution did not see it as a desperate
act but as a confirmation of a disturbed killer.
He had spent 13 brutal years on death row when his sentence
was reversed, based on a technicality. That's when Paul Nugent became
his lawyer.
PAUL NUGENT: The issue is, has the state proven their capital
murder case by proof beyond--
NARRATOR: The new trial, with a new DA, took place in 1992
and resulted in a hung jury. The state then retried the case once
more.
PROSECUTOR: --to find this defendant guilty of capital murder
because that is the crime he committed on June the 10th--
NARRATOR: The death penalty was reinstated. Then, once again
in 1996, the Texas Court of Criminal Appeals reversed the conviction.
It also published a scathing critique of the conduct of both the
police and the prosecution going back to the first trial in 1978.
They wrote that the investigation was intentionally misleading, the
key witness, Robert Hoehn's, testimony was prejudicial, and the first
conviction was obtained through fraud and in violation of the law.
PAUL NUGENT: The highest criminal court in the state of Texas
found substantial and egregious and systematic prosecutorial misconduct
in Kerry's case. We're not talking about an isolated act. We're not
talking about one instance of police or prosecutorial misconduct. We're
talking about systematic misconduct.
NARRATOR: Even the then new first assistant DA, the man who
fiercely prosecuted Cook in the last two trials, David Dobbs, agrees.
Fmr Asst DA, Smith County: Let me make it real clear to you,
this prosecution of Kerry Max Cook was mishandled from the start.
There were problems, and there's no question that there were things
that were done that were unfair to him. I've never indicated anything
other than that.
NARRATOR: And yet that didn't deter [the Asst DA] from going
on fighting to put Cook to death…
PAUL NUGENT: The prosecutor offered if Kerry would plead
guilty, he'd get out, his case would be over with. He'd have to plead
guilty to time served. And I went and talked to Kerry, and Kerry looked
me in the eye and said, "I want to go home. I want to be free. I want
this behind me. But I will go back to death row, I will let them strap
me to the gurney and put the poison in my veins before I lie, before
I plead guilty."…
KERRY MAX COOK: My lawyers told me it was my decision. Paul
Nugent said, "We could win it, Kerry. I think you'll be acquitted this
time. I'd heard that before. The truth had rung in my ears for so long,
I couldn't hear it anymore. I'd given them 22 years. I just didn't
want to give them any more. Too much.
Ofra BIKEL: So you took it.
KERRY MAX COOK: I took it. And I regret it every day.
NARRATOR: Then, almost out of the blue, two months after
Kerry Max Cook took the no contest plea and 22 years after the murder,
the result of a DNA analysis of a semen stain found on the victim's
panties came out. It did not match Cook's. The prosecution says that
these findings were not exculpatory and that Kerry Max Cook was and
remains guilty…
NARRATOR: The first parole hearing for Kelly Jarrett will
take place in 2005, but her dilemma may very well follow her. Parole
boards expect admission of wrongdoing and expression of remorse. Locked
up for almost 30 years for claiming she is innocent, it would be hard
to imagine her saying she is not….
JOSEPH WEINGRAD: No. That isn't the way the justice system
is supposed to work in this country. It's not supposed to work that
way….