Saturday, April 18, 2009


I’ve handled many cases, misdemeanor and felony, over the last thirty-plus years as both a prosecutor and defense lawyer. And most of them have ended in guilty pleas. Guilty pleas are a result of negotiations between the defense and the prosecution. As a prosecutor, I learned to carefully consider the evidence and the appropriate punishment before making an offer. I also learned to consider, but not to be bound by, the wishes of crime victims. They certainly have a right to input, but sometimes cannot see the case objectively as required for a fair prosecution. As a defense lawyer, I've learned that the way to get good guilty plea bargains is to prepare for trial. I remember once discovering through a careful study of the prior conviction papers the prosecution proposed to use to enhance my client’s punishment that the prior conviction was invalid. That led to a MUCH better plea bargain. The other thing I learned about plea bargaining was to take the time to make sure the client understood exactly what was going on. Otherwise, the plea can blow up, either in court or later.

Do people like to plead guilty? Not usually, of course. Some of them know they are getting a better deal than they perhaps deserve, and are content. Some of them are angry at the time, but then calm down. I remember a letter I received from such a client, apologizing for blowing up at me in court and thanking me for doing a good job for her. All of them, though, end up accepting that there is evidence that will convict them of a crime, and most of them accept responsibility for what they did. That, it seems to me, is what is supposed to happen in the criminal justice system. 

Do innocent people plead guilty? Until DNA exonerations began, I would have said that this was very rare. Now I am not so sure. It does appear that some accused persons are so frightened and discouraged about the prospects for being found “not guilty” that they will accept a known punishment for something they didn’t do. I hope that hasn’t been true of any of my clients. I hope that they knew that I would fight hard for them if they decided to go to trial. I can’t say that I’ve won many criminal trials, but I can say that I fought hard!
Are guilty pleas a good idea? Yes. Sometimes it is suggested that a person who pleads guilty “got off.” Rest assured that the person who pleads guilty and gets a twenty-year sentence goes to prison just like the person who goes to trial and gets a twenty-year sentence. Does the person who pleads guilty get a shorter sentence? Usually. But that’s fair. This is a person who has decided to accept the consequences of the charge and save everyone the time, expense and trouble of a trial. And that’s worth something. There is no clear formula that says, “This crime is worth x number of years, while that crime is worth y number of years. Sentences for the same crime vary from person to person, from state to state, from country to country. Rewarding those who make the system work smoothly makes sense, and doing so by shortening the sentence is a sensible way to do it.

Saturday, March 14, 2009


On February 26, 2009, the Eighth Circuit Court of Appeals reversed the dismissal of Larry Streu’s habeas corpus petition and remanded for a hearing. The question before the court was whether Mr. Streu had filed his petition on time. To decide this question, the court had to determine whether the time during which his motion to reopen his Missouri post-conviction action was pending in the Missouri courts counted against the time permitted by the federal habeas corpus statute for the filing of a habeas corpus petition. The court decided that the time did not count, that is, that the statute of limitations was “tolled” while the state court motion was pending in the Missouri courts. So far, so good. This result will likely allow Mr. Streu to have his constitutional arguments about why he was wrongfully convicted heard in federal court. But in the course of its opinion, the court suggested that Mr. Streu, who, until I was appointed to represent him in the Eighth Circuit, had been proceeding without a lawyer, might have filed the state court motion in order to give himself more time to file the federal petition. What’s wrong with this idea? Two things. First, Mr. Streu wants to get out of prison. He has no incentive to delay filing anything. The sooner he gets things filed, the better off he will be. Of course, since he is not a trained lawyer, and doesn’t have access to much in the way of legal research tools, filing court papers is a laborious process. But he certainly has no incentive to delay. Second, even if Mr. Streu did want to buy himself more time to prepare his federal petition, how would taking the time to file a state motion do that? Filing the state court motion takes just as much time and effort as filing a federal petition. So why did Mr. Streu file a state court motion? He did so because in general, issues that weren’t raised in state court can’t be raised in federal court. By filing his state court motion, he was trying to let the state court rule on an issue that he thought his state court lawyers had missed. If the state court had granted relief, that would have been fine with him, and he would not have needed to go to federal court at all. Obviously, this sort of filing should be encouraged by the federal court, not discouraged. The Streu decision will have the effect of doing that, and the federal court need not worry about delay.

Sunday, February 15, 2009


The first entry in this blog concerned the decision of the Eighth Circuit Court of Appeals in the case of Frederick Revels v. Mary Sanders, holding that the State of Missouri’s formula for determining whether Mr. Revels could be discharged from the state mental hospital where he had been confined for many years was unconstitutional. The State of Missouri unsuccessfully challenged that decision in the court en banc and in the United States Supreme Court. Finally, last month, Fred received a new hearing in the circuit court of Jackson County, Missouri, and was granted an unconditional discharge. The court concluded, “Mr. Revels has met his burden of proving by clear and convincing evidence that he does not presently have a mental disease or defect that renders him dangerous to himself or others.” Therefore, the court, “with a great deal of angst and trepidation,” ordered his unconditional release. In the interim between the decision and his release, Mr. Revels has been diagnosed with some serious medical problems. It is hoped that in this case, justice delayed will not turn out to be justice denied.