§1 Introduction


In an ethical and integral criminal justice system, the criminal defendant would be guaranteed the protection of all his/her constitutional rights not only in theory but in practice. The criminal defendant would:

  1. Be presumed innocent until proven guilty;
  2. Be afforded a reasonable opportunity to prepare a defense with meaningful access to the courts and adequate legal resources;
  3. Have competent and effective assistance of counsel independent of the whims of the prosecutor and the personality of the judge;
  4. Exercise the right to trial with a jury of peers instead of being coerced into a plea agreement;
  5. Have sufficient and reliable evidence fairly and impartially presented before a jury for consideration of the truth behind the allegations;
  6. Have the scales of justice balanced slightly in favor of the defendant due to the necessity of the government having to prove guilt beyond a reasonable doubt.

In practice the criminal defendant is incarcerated upon arrest, bail is rarely ever granted and prisoners are housed in county facilities while in transit or in pre-trial detention centers awaiting trial. Pre-trial detainees or hold-over inmates are afforded no more constitutional rights than convicted prisoners. In fact, there are often more restrictions as visitation is limited to immediate family only.

In practice, many pre-trial detainees are held without bail for years awaiting trial, the offer of a plea agreement by the prosecutor or sentencing due to busy dockets. Pre-trial detainees are presumed guilty when charged and punishment begins on the day of incarceration.

In practice a defendant will be afforded a reasonable opportunity to prepare a defense with or without the appointment of counsel. Additional law library time will only be granted if the defendant elects to proceed pro se with or without standby counsel. Appointed counsel is presumed sufficient access to the courts.

Hired or appointed effective assistance of counsel is extremely rare and a defendant who doesn’t understand their constitutional rights and what to expect of defense counsel is at a serious disadvantage especially in a criminal case. Do not under any circumstances waive your “speedy trial” rights. This is routinely done by defense counsel without the knowledge and consent of the defendant. Waiving your speedy trial rights only allows the prosecutor more time to develop their case against you.

A defendant has a Sixth Amendment right to a jury trial and confrontation of witnesses. Trials, though, are discouraged by every practice and procedure in the criminal justice system due to heavy case load. If every criminal defendant went to trial the wheels of justice would come to a grinding halt. So the defendant is pressured, threatened and coerced by the prosecutor and defense counsel alike to plead guilty and/or accept a plea agreement with the government.

A defendant is generally unaware of these underlying pressures and motivations of the bureaucracy. These are, in my opinion, inherent conflicts of interest in every criminal prosecution. Do not blindly accept a plea agreement or plead guilty without a thorough examination of the merits of your case including relevant case law and the application of the facts in your case to that law. Make certain that the government has solid, reliable and sufficient evidence to convict if they went to trial and prove their case beyond a reasonable doubt.

Blindly accepting a plea agreement without any direct benefit inherent in the deal is like being led like a lamb to slaughter. The prosecutor will threaten you with enhancements and superseding indictments if you fail to take their deal “as is”. Defense counsel will entice you with a three-point reduction in the “guidelines” sentence if you plead guilty.

The United States Sentencing Guidelines (U.S.S.G.), which are now advisory not mandatory, were often used as a sledgehammer to entice defendant’s into accepting a plea agreement and waiving their right to a jury trial. How the judge has more discretion to depart from the guidelines sentence even if you enter a plea agreement. Plea agreements must be locked-in and take the surprise out of sentencing, or at least reduce the probability of getting slammed at trial or sentencing.

Defense counsel must aggressively negotiate a deal that benefits the defendant. But in practice, defense counsel is lazy and generally goes along with whatever the prosecutor offers. The primary role of the prosecutor and defense counsel in relationship to the court is to get the defendant to settle, plead guilty and avoid a trial. That is a political and economic reality. Trials are expensive, take an enormous effort and expense of judicial resources and time to prepare for. With this bureaucratic imperative underlying every criminal prosecution, magistrates and district judges are either unaware of or permit prosecutorial misconduct and ineffective assistance of counsel as a necessary evil to expedite justice in the courts.

The statistical probability of a criminal defendant being acquitted in a trial or having the charges dismissed in federal district courts is less than one percent. That’s not even considering the other disadvantages of being a criminal defendant. These overwhelming statistics are a stark reality for a criminal defendant and do not escape the attention of career-driven prosecutors and defense counsel when they are considering a defendants options.

In practice defense counsel knows the odds are stacked against them and have decided in advance of even considering the merits and facts of a criminal ease that not only is going to trial not an option but settling is the only option. Thus defense counsel spends little or no effort whatsoever investigating a case, filing motions, making meritorious legal arguments on behalf of the defendant.

Defense counsel knows that unless the defendant goes to trial all issues raised pre-trial will be waived in a plea agreement or by virtue of a guilty plea. If the defendant goes to trial to defend his/her actual innocence, there are numerous unethical and dishonest practices by officers of the court that are predisposed to convicting the defendant including denying defense witnesses and evidence, allowing perjured testimony, the coaching of government witnesses, government suppression of exculpatory evidence and other tricks of the trade of guaranteeing conviction.

The swearing of an oath to “tell the truth, the whole truth and nothing but the truth” has lost all meaning in a criminal justice system that profits on convictions of the innocent and guilty alike.

These gross imbalances of the scales of justice does not escape realization by an incarcerated criminal defendant. Criminal defendants may be the only ones with the eyes to see what really goes on in the criminal justice system. These political and economic realities must not escape consideration by a defendant when evaluating the risks and dangers of going to trial versus pleading guilty with or without a plea agreement.

While the prosecution has a team of high-paid U.S. Attorneys, unlimited financial resources, time, staff, investigators and law enforcement rallied against a defendant all at taxpayers expense, the incarcerated criminal defendant must prepare a defense in prison with a limited budget of time, money and competent assistance of counsel. With a court appointed federal public defender or attorney, more often than not ineffectively or inadequately advocating whatsoever on behalf of the defendant, the criminal defendant may have no choice except to elect to proceed pro se with standby counsel.

While it would be preferable if the criminal justice system would accommodate ethical and honest practices that afforded criminal defendants a morsel of opportunity to properly defend themselves, it doesn’t seem likely without a shift of the pendulum back towards the protecting and guaranteeing the constitutional rights of criminal defendants and the fair administration of justice. Until then criminal defendants will have to fend for themselves and make the best out of the time served in prison.

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