Guilty, but not guilty

“So spake the Fiend, and with neces­sity, The tyrant’s plea, excused his dev­il­ish deed.”

— John Milton,

Par­adise Lost

“In law, what plea so tainted and cor­rupt But being season’d with a gra­cious voice Obscures the show of evil?

— William Shakespeare,

The Mer­chant of Venice

More than a decade ago, when I was work­ing as an assis­tant pros­e­cut­ing attor­ney, I was assigned to a case in which a recent prison parolee was accused of sex­u­ally assault­ing the kind-hearted woman who agreed to take him into her home after his release from the pen­i­ten­tiary. He had sig­nif­i­cant men­tal health prob­lems and they became quite evi­dent when he appeared, via video hook-up from the jail, for his arraign­ment in the Delaware Munic­i­pal Court.

Though his offense was a felony, he had not yet been indicted by a Grand Jury for his crime. Instead, he had only been charged by a law enforce­ment agency, a pro­ce­dure that was nec­es­sary in order to ask that he be held in the county jail while his case pro­ceeded fur­ther. The Munic­i­pal Court needed to con­duct a hear­ing, set a bond, arrange for the appoint­ment of coun­sel in his case and set a date for a pre­lim­i­nary hearing.

The Mag­is­trate reviewed the charge with the Defen­dant. He explained what the accu­sa­tion was, what the penal­ties for the offense were and what the Defendant’s rights were. As the Mag­is­trate con­tin­ued to talk, the Defen­dant became more and more phys­i­cally agi­tated. At the point where most crim­i­nal defen­dants would have uttered the nearly uni­ver­sal ini­tial plea — “Not guilty, your honor,” the Defen­dant instead indi­cated that he wanted to plead guilty to the charge.

The Mag­is­trate calmly explained to the Defen­dant that he did not yet have an attor­ney. He calmly explained that the Defen­dant had not yet seen any of the evi­dence against him. He calmly explained that even if the Defen­dant had com­mit­ted an offense, the offense charged might not be the right one to fit the crime and that an attor­ney could review that for him.

Grow­ing ever more exas­per­ated, the Defen­dant finally screamed through the tele­vi­sion mon­i­tor, “But I’m guilty you honor, I’m guilty!” I moved across the room and qui­etly whis­pered to the bailiff, “I’m going to need a copy of the video of this arraign­ment, please.”

The Defendant’s actions in that arraign­ment were highly unusual. An ini­tial plea of not guilty is nearly uni­ver­sal in felony level crim­i­nal cases. This is true regard­less of the nature of the evi­dence. Crime caught on tape? Recorded con­fes­sion? Dozens of wit­nesses to the crime? The defen­dant is still likely to plead not guilty.

But why? These defen­dants are not delu­sional. They do not have sit­u­a­tional amne­sia. In the vast major­ity of cases, they know that they have done wrong and are not inten­tion­ally try­ing to put the victim’s fam­ily through addi­tional pain or anguish. The rea­son for their not guilty plea has more to do with the man­ner in which our crim­i­nal jus­tice sys­tem pro­ceeds through the early stages of a case.

When a defen­dant appears for his arraign­ment — his ini­tial hear­ing, he usu­ally has either had no access to the police reports and other inves­tiga­tive infor­ma­tion in a case or is just receiv­ing it for the first time at that hear­ing. In most cases, he has just met with his attor­ney for the first time and his attor­ney, not hav­ing had time to become famil­iar with the evi­dence, has not spo­ken in any level of detail with the pros­e­cu­tor about how the case might be resolved. Thus, even if the defen­dant knows that he is guilty of some­thing, he is only very rarely in a posi­tion at that early stage of the case to irrepara­bly waive his rights and plead guilty. But the defendant’s only other option is to plead “not guilty.” There is no, “I’m guilty of some­thing but I need a few weeks to fig­ure out what” plea.

These are not minor dis­tinc­tions. Sup­pose that a per­son shoplifts a candy bar from a con­ve­nience store. That act is a mis­de­meanor offense with a max­i­mum jail term of 180 days. Now sup­pose that on the way out of the store the per­son is con­fronted by a store clerk and pushes past them to get out of the store. If the push causes even minor phys­i­cal harm to the clerk, then the offense is a rob­bery, a felony of the sec­ond degree, and pun­ish­able by up to eight years in prison. Whether phys­i­cal harm was caused may sim­ply not be known at the time of the arraign­ment and even if it is, a lay per­son can­not be expected to know that the push could be the dif­fer­ence between six months and eight years.

Fol­low­ing an arraign­ment, the next hear­ing, usu­ally a pre-trial con­fer­ence, is gen­er­ally held within a few weeks of arraign­ment and the vast major­ity of cases (more than 90 per­cent nation­wide) end with the defen­dant enter­ing a guilty plea, either to the orig­i­nal charge or to some­thing related to it. Thus, while a per­son may plead ‘not guilty’ because they have been wrong­fully accused, even in cases where the ‘not guilty’ plea may seem like a shock­ing denial by an obvi­ously guilty per­son, it is, more likely, sim­ply the ini­tial trig­ger­ing event in the crim­i­nal process.

David Hej­manowski is a mag­is­trate and court admin­is­tra­tor at the Delaware County Juve­nile Court and a for­mer assis­tant pros­e­cut­ing attorney.

Posted by Dave Hejmanowski on Nov 22 2012. You can follow any responses to this entry through the RSS Feed. Comments can be made below.