Rights at Risk: The Limits of Liberty in Modern America (Vintage)

by David K. Shipler

  A judge who thought either sentence inappropriate would have had little choice until Booker in 2005. The flexibility introduced by that case has been used to some degree, but since appellate courts have instructed judges to begin with the guidelines, most have ended with them as well.13 The government can also appeal a sentence it thinks too lenient, and some appeals have been granted, sending cases back down to trial judges with instructions to stiffen penalties.

  For the prosecutor, then, Sentencing Guidelines and statutory minimums remain a weapon and a lure. He can threaten the heavier charge if you choose to go to trial, and offer the lighter one if you agree to plead guilty, a tactic approved by the Supreme Court in 1978 after a district attorney in Kentucky had played the life-altering game with Paul Hayes, arrested for forging a check for $88.30.

  Hayes had two previous felony convictions, which qualified him for the three-strikes-and-you’re-out treatment under state law. Instead, the DA offered Hayes a five-year sentence if he pleaded guilty to “save the court the inconvenience and necessity of a trial.” (Blackstone rolled in his grave.) But if he insisted on putting his fate before a jury, the prosecutor warned, a new grand jury indictment would be sought under Kentucky’s Habitual Criminal Act, which carried a life sentence. The defendant chose the trial and got life. The Supreme Court narrowly approved, 5–4.14

  “There’s a lot of charge bargaining,” with the defendant’s criminal record often used as leverage, said Larry Kupers, who has been a public defender in California and Washington, D.C. A prosecutor “can add ten years by filing information that you have a prior drug conviction,” Kupers noted, and the threat is often just that explicit. “The prosecutor may say, ‘If you go to trial, I’ll file, and you’ll get ten more years in prison.’ ” In Northern California, assistant U.S. attorneys “also say if you move for bail, we’ll file your prior,” reported Steven Kalar, a federal public defender there. “The latest thing is, if a co-defendant files a motion [to exclude evidence, for example], they’ll file your prior.”

  Similarly, a prosecutor can include or ignore elements of the crime. One made a gun magically disappear from a string of robberies to lower the charges and get a guilty plea, Kupers recalled. “I had a client who was very smart, an accountant, who went crazy and did a bunch of armed bank robberies,” he said. “The first count with a gun gets 5 years, the second count gets you 20 to 25. He would have faced 150 years, so he had to take a deal for four or five robberies and only one with a gun.”

  That’s a good deal if you’re guilty, not so good if you’re innocent and want to prove it. Then the risks of a trial are compounded by the guidelines themselves. For an admission of guilt, called “acceptance of responsibility,” your sentence is lowered by two levels, and by a third level if you give “timely” notification of your willingness to plead, “thereby permitting the government to avoid preparing for trial,” the guidelines state.15

  The result can significantly reduce time behind bars. “Let’s say it’s at offense level 26,” explained Kalar. “If you plead guilty before the pretrial conference, you can get three ‘acceptance’ points. So you go from 26 to 23, from 120–150 months to 92–115 months. So you’d save up to two years if you plead guilty.”

  But it’s not up to the defendant and his lawyer alone. “This has to be on the motion of the prosecutor,” Kalar observed. “You cannot even have a trial date set.” And if you suspect a weakness in the prosecution’s case, because of either an illegal search or a corrupt police officer, you need to think twice before moving to suppress evidence, he cautioned. “If you file a suppression motion saying the cop is dirty, they say you don’t get the reduction, so you lose the three ‘acceptance’ points.”

  Furthermore, in the most Kafkaesque provision of all, if you are truly innocent, go to trial, deny the crime under oath, and are wrongly convicted nonetheless, the guidelines elevate your sentence by two levels for “obstructing or impeding the administration of justice.” The same increase is imposed if a witness testifies on your behalf and is disbelieved.16

  Court decisions have also deprived defendants of information that could be crucial in helping them decide whether to plead guilty. To guarantee a fair trial, the Supreme Court has ruled that the prosecution must give the defendant evidence that is favorable to his case or unfavorable to prosecution witnesses. Under Brady v. Maryland in 1963, a conviction can be overturned if the prosecution fails to disclose exculpatory evidence,17 and under Giglio v. United States in 1972, if the prosecution withholds facts that may impeach a witness’s credibility. These can include leniency in exchange for testimony if the witness is facing prosecution or deportation.18

  But that’s in a trial. The Court has denied the accused a right to such helpful information when contemplating a guilty plea, which is essentially a voluntary waiver of a host of constitutional rights: against self-incrimination, to a jury trial, to confront witnesses, and to due process as bolstered by access to exculpatory and impeachment evidence.19 Police don’t want to identify informants and undercover agents unless absolutely necessary, and some prosecutors require defendants to sign waivers of their rights under Brady and Giglio as part of the plea agreement, primarily to avoid later appeals. It was one such waiver that was found constitutional by a unanimous Court in 2002.20

  That doesn’t mean that all prosecutors conceal their hands. Even during plea bargaining, some willingly reveal facts that tend toward exoneration. “I disclose all evidence that I have,” said an assistant U.S. attorney in California. “I have a colleague who came from the Southern District of New York, and she said that’s not the way it’s done there. She said they disclose only the minimum.” Such variations occur not only from region to region, defense attorneys observe, but within the same office.

  When information is not forthcoming, defense lawyers often fly blind as they give their clients advice under pressure to make a “timely” decision on a plea. They may not know that the police turned up evidence calling the defendant’s guilt into question, or that a key witness has a background of unreliability, or that an informant charged with a crime is being paid off with a lower sentence in another case. Sometimes, if the prosecution witness is not a U.S. citizen, he is rewarded for his testimony by having his crime reduced below the level at which deportation is mandatory—a fact that the accused may not learn unless prosecutors choose to tell him.

  As a result, says the public defender Kalar, “cops that are dirty are not tested. Informants that are dirty are not tested. The only check on the law enforcement procedure is the adversary process.” Yet Kalar would not plead an innocent defendant guilty. That would be unethical. “Usually, we don’t ask,” he said. “My first question is not, ‘Did you do it?’ I’m not interested in that question until we’re close to a plea.” And many lawyers never know for sure.

  THE SENTENCE

  It’s an irony that the more intricate the legislative branch makes sentencing provisions in the law, the more power is transferred to the executive branch, by way of the police and prosecutors. This was not the intention when Congress enacted the federal sentencing guidelines in 1984. They were designed to eliminate judges’ disparate sentences, which had put black convicts in prison for much longer terms than whites, one scourge of a racially biased justice system.

  The plan did not succeed. At first, in 1984, blacks and whites received equivalent sentences averaging just over two years, but by 2004 the gap had widened again, to six years for blacks and four for whites.21

  Moreover, the guidelines created new problems. At the sentencing hearings that followed guilty pleas or convictions, prosecutors could argue for increased prison terms by making assertions about the defendant and the circumstances of the crime. Before the guidelines, judges were generally free to accept or reject the arguments, and in so doing, many indulged their biases, racial and otherwise. With the guidelines in place, however, judges were less able to disregard “enhancement factors,” which had to be proven only by a prepond
erance of the evidence, not by the higher standard—beyond reasonable doubt—required for juries to find guilt.

  In tens of thousands of cases since the guidelines were enacted, therefore, sentences have been based on weaker evidence than a jury needs to convict. That continued even after Booker shifted the guidelines from mandatory to advisory, since they remain the preferred benchmark for most judges and prosecutors. “In this circuit you can use quadruple hearsay: a snitch to an informant to a cop to a prosecutor,” complained Kalar, the public defender in San Francisco. “I have to tell my client, ‘We’re probably not going to prevail on this.’ It’s harmful to the truth-finding process. It encourages them to use informants in sentencing hearings, shaky informants that could not withstand the trial.”

  Furthermore, even what you win at trial you can lose at sentencing. If the jury acquits you on four of five counts of crack possession, the judge can still include those four not-guilty counts in calculating your offense level, as long as he doesn’t exceed the statutory maximum enacted by Congress for the one count of conviction by the jury. That is the only upper limit, but it’s hardly limiting: those maximums in the law are usually high, so they barely impede sentence increases based on what is called “acquitted conduct,” legal shorthand for a device so widespread that it rates a label.

  Robert Mercado Jr. and Daniel Bravo, two alleged members of the Mexican Mafia, got caught by this practice. A jury convicted them of racketeering and conspiracy to distribute narcotics but found them innocent of more serious charges that they had participated in three murders and two armed assaults and had conspired to commit a fourth homicide. The judge lengthened the sentence by citing the murders nonetheless, replacing the jury’s finding with his own that the crimes had been sufficiently proven.

  The box where they fit in the guidelines grid put their sentences at around three years for the convicted charge of drug trafficking. Had they been convicted of murder, it could have been life. The judge couldn’t give them life, but the high statutory maximum for drug trafficking allowed him considerable room to move upward, and so he sentenced them to twenty years. Their appeal failed 2–1 in the Ninth Circuit, prompting the dissenting judge, Betty Fletcher, to declare plainly: “By considering acquitted conduct, a judge thwarts the express will of the jury,” thereby marginalizing the jury and undermining the Sixth Amendment. “Such a sentence has little relation to the actual conviction,” she wrote in stating the obvious, “and is based on an accusation that failed to receive confirmation from the defendant’s equals and neighbors.”22 Mercado and Bravo were denied review by the Supreme Court.

  At least ten federal circuits following Booker upheld trial judges’ discretion to use acquitted conduct in sentencing, including the Second Circuit in a much-quoted opinion by Sonia Sotomayor.23 The Supreme Court allowed the practice to continue. Perhaps the unusual, fragile coalitions of liberal and conservative justices were too close and fluid to refine the Booker decision that they had assembled—the decision that guidelines violated the right to a jury trial when they were compulsory but abridged no right when merely advisory. So, in the parallel universe of jurisprudence, sentences based on allegations unproven to a jury were unconstitutional if mandatory and constitutional if discretionary.

  Even an implausible confession, given under duress and disbelieved by the jury, could be spun into a long sentence, at least in the federal judge William H. Alsup’s San Francisco courtroom. There, at the prosecutor’s urging, a conviction for insurance fraud was magnified by Alsup into terrorism by arson, a charge the jurors had unanimously rejected. They had found Luis Gonzalez guilty of essentially faking the theft of a car to collect insurance, a crime that normally carried a sentence of probation or several months in jail, his attorney figured. Judge Alsup gave Gonzalez eight years instead.

  A hard-nosed Clinton appointee, the judge built the sentence on an uncertain foundation of constitutional rulings that weakened Gonzalez’s efforts to protect his Fifth Amendment right against self-incrimination and his Sixth Amendment right to trial by jury. As a result, the case began to work its way up the ladder of appeals, where the precedents did not favor defendants.

  The crime came out of financial desperation, as so many do. In May 2006, four months after Gonzalez’s wife, Katherine Paiz, had taken a loan to buy a $32,000 Honda, the car developed severe engine trouble not covered by the warranty because of “driver abuse” by “over-shifting,” the dealer claimed.24 Evidently unschooled in the art of challenging automobile manufacturers and unable to afford the repair of $5,000 to $7,000, Paiz upgraded her insurance to cover damage from “fire, theft, tree, hail, flood, act of God.” Then, before her evening shift at Lowe’s department store, she parked beyond the range of surveillance cameras, in an area avoided by employees because of vehicle break-ins. When she left work at 10:00 p.m. and saw that her car was missing, she called 911 and reported it stolen.

  The police told her that the Honda had been discovered ablaze about an hour and a half earlier in a cattle pasture of dry grass near a small airstrip. A gasoline can, found in the backseat, led suspicious insurance investigators to notify the FBI, which got a quick confession from Paiz to the fraud but not to the fire. An unnamed acquaintance, she said, “gave me the idea to get rid of my car. They took it from Lowe’s parking lot with the valet key they received from me. I didn’t know what they were going to do with my car. I just knew they were going to take it. They said just report it stolen, and insurance would take care of it.”

  Two FBI agents then questioned Gonzalez, but in a manner raising Fifth Amendment concerns, according to his lawyer, Daniel Blank. Since he was a suspected gang member on probation for an earlier crime, he was subject to the instructions of his probation officer, Julie Nie, and was vulnerable to being returned to prison for a violation. So the FBI had Nie summon him to her office for a visit that was hardly voluntary. She ordered him to provide a urine sample for a drug test, talked to him for a while, and told him to wait at her desk while she left the room to let the agents know they could question him.

  When they walked into the office, the agents formally established that he was not in custody—a prerequisite for avoiding the Miranda warning. He was not under arrest, they said, nor did he have to speak with them. But he agreed to answer questions, and they led him to another room “with one of the agents situated between Gonzalez and the door,” according to his appeals brief.

  For ninety minutes, Gonzalez insisted that he had known nothing of the theft until his wife had called him from Lowe’s; he had borrowed his father’s car to pick her up. He “stated that he did not set the car on fire and that he did not know who did.” The agents persisted, asking if he would take a lie detector test. He agreed, but it was never given.

  When he finally asked about a lawyer, the agents replied that he did not need one and was free to leave. Yet when he stood, “one of the agents also stood and approached him,” his brief reports, and “reminded him that he was on felony probation,” which gave them the authority to search his house without a warrant or probable cause. “Feeling threatened by the words and actions of the agents, Gonzalez did not leave,” his lawyer told the court. He sat back down.

  The agents then played a scary card, according to Blank. Since the burning car was found near an airport, they declared, it may have been a “terrorist-related event.” The tactic appeared to be part of a widespread practice after September 11, when the FBI and the Justice Department inflated their counterterrorism numbers by relabeling many common crimes as terrorism. “They said, ‘Your wife is on the hook for a terrorism offense,’ ” Blank reported. “ ‘Why don’t you help her out?’ ”

  The ploy drew Gonzalez into a rebuttal. It was not terrorism, he declared. The agents cleverly parried his denial. They needed more than his word, they told him, to convince headquarters that his wife was not into something extremely dangerous. They prodded until Gonzalez finally burst out, “I burned that shit up.” The caper “was purely an insurance
fraud” that had “nothing to do with terrorism,” his brief quoted him as saying. He was trying to protect his wife by taking the blame entirely on himself.

  But his confession contained nonsensical elements. He told the agents that he hadn’t seen any dry grass, when the field was actually covered by it. He said that after setting the fire, he had walked fifteen miles home in time to get Paiz’s call from the parking lot just ninety minutes later, making a record-breaking walking speed of ten miles an hour. Unfazed by the obvious falsehoods, the FBI and the Justice Department relied wholly on his confession to charge him with conspiracy to commit wire fraud (calling the insurance company to report theft) and using “fire or an explosive to commit” the crime, a charge carrying a statutory minimum of ten years.25 There was no other evidence, Blank said.

  Gonzalez and Paiz were tried separately, Gonzalez first. Blank argued that his confession should be suppressed because he had effectively been in custody, had not been Mirandized, had requested and had been denied a lawyer, and had not been truly free to leave despite the FBI agents’ statements otherwise. In short, his Fifth Amendment right against self-incrimination had been violated, and the confession was patently false. Judge Alsup disagreed. He rejected the contention that the agents had intimidated Gonzalez into staying and talking; found the situation noncustodial, which meant that no Miranda warning was required; and denied the suppression motion.

  So the jury learned of the confession, but their doubts about it were helped along by testimony from a close friend that he’d been with Gonzalez at home when the car was burned. Gonzalez was pronounced not guilty of the fire but guilty of wire fraud. Separately and also before Judge Alsup, Paiz’s jury then found her guilty of both fire and fraud. He sentenced her to ten years and one month. Then he turned to Gonzalez.

  Defendants and their attorneys do not often have much power at sentencing. They can present mitigating factors, testimony to the convicted person’s otherwise good character, pleas for mercy. But it is not always a full evidentiary hearing, not a retrial of the facts, and so swirls of rumor and innuendo can turn the courtroom into a surreal echo chamber where half-truths are repeated over and over and magnified until they haunt the facts.