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The Plea

Here is an excerpt from the transcript for the provocative and well supported FRONTLINE documentary titled "The Plea". I encourage you to go to the Frontline Web site to read the transcript in its entirety. 

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….


 
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