The Second Circuit met en banc (or in banc?) for the first time in a little over two years and handed down a sharply divided 9-6 opinion with potentially major ramifications for the criminal justice system.

In the crosshairs in yesterday’s decision was the sanctity of one of a modern prosecutors most cherished tools of brow-beating serving justice: the guilty plea.

The Second Circuit is leading the way in restoring a little bit of justice to the criminal justice system…

Last week I pointed out that prosecutorial power is out of control in this country, and — for some — a corrupting influence. More than a couple butthurt prosecutors took to the Interwebs to complain that I was a big meanie. At least now they have nine Second Circuit judges to hate on even more.

In Poventud v. City of New York, the en banc panel heard the case of a Bronx man who spent nine years in jail for a crime he probably didn’t commit:

[Poventud's attorney] Ms. Kuan at the time successfully argued that the cabdriver Mr. Poventud was convicted of shooting at first mistakenly identified Mr. Poventud’s imprisoned brother as the suspect.

Instead of retrying the case — which had one eyewitness, the cabbie — prosecutors offered Mr. Poventud a plea deal: admit to a charge of attempted robbery, which called for a one-year prison sentence.

Mr. Poventud, 43 years old, had already served nine years of his original 10- to 20-year sentence, meaning he’d be released from prison immediately. Mr. Poventud, who said he was abused repeatedly as an inmate, took the deal. He maintains his innocence.

After getting out, Poventud went to federal court seeking redress for the way the authorities put him in prison despite withholding that the only witness couldn’t remember who shot him. The district court threw the suit out because once Poventud pleaded guilty to the attempted robbery claim, he supposedly waived his right to challenge the tactics employed in his trial for attempted murder. A divided panel of the Second Circuit disagreed, and yesterday’s en banc opinion affirmed the Second Circuit panel, allowing Poventud to move forward with his civil rights suit.

Judge Dennis Jacobs, who dissented on the original Second Circuit panel, dissented again:

The majority opinion undermines both the finality premise of Heck and the truth‐seeking foundation of Brady. It holds that Marcos Poventud, who secured a new trial from the State of New York based on a police officer’s failure to disclose information that might have impeached the victim’s identification of Poventud as the armed robber of a livery cab, can sue for Brady damages even though Poventud resolved the charges against him on remand by entering a guilty plea (to a lesser offense) that made clear that the eyewitness identification was sound, and that Poventud’s alibi defense at the first trial was perjury.

As a practical matter, Judge Jacobs has a point. On some level, Poventud’s guilty plea — while it may not have copped to attempted murder — did implicitly place him at the scene of the crime, and Poventud’s argument is “I was falsely identified at the scene.” Guilty pleas help grease the wheels of justice and some degree of risk-reward is required to make the plea system work. If the defendant takes the small hit to avoid the bigger potential hit, it theoretically benefits everyone to agree that these deals are final and the decision is made with full appreciation that it will permanently mar the defendant’s record.

Judge Gerard Lynch countered Judge Jacobs with a dose of reality and a nod to literature:

The choice of freedom in exchange for an admission would be easy for a guilty man, but even an innocent one would be hard pressed to decline the prosecution’s offer. A hero might resist the bargain and insist that he would not accept the ignominy of falsely admitting guilt. One is reminded of John Proctor, falsely accused of witchcraft in Arthur Miller’s play The Crucible, who goes to the gallows rather than accept an offer that would let him go free in exchange for a false confession. It is difficult to expect such heroism of mere mortals. Proctor, though based on a historical figure, is after all a fictional character, and even he first signed the false confession before having a change of heart. Poventud did what I suspect most ordinary human beings would do in his situation, even if they were innocent.

In this case, a prosecutor’s office that, based on their actions, seemed unsure if they were going to prevail on a retrial, held out the prospect of “we’ll drag out a trial we still might win while you languish in jail or we’ll let you out now if you promise not to blame us for this” and pretended this was a real “deal.” Because a “deal” suggests there’s some kind of fair “deal.” The majority recognized that while the finality of guilty pleas are important, when the deal is reached through such a power imbalance, it’s not a deal at all — a concept that hitherto had a more secure home in civil cases than criminal cases where the stakes are even higher.

While this case involved the prospect of holding a man in jail in the interim, the risk of abusive plea deals exists all the time — if to a lesser extent. It’s all well and good to believe that no one would plead guilty and willingly go to jail lightly, but we know we don’t live in that world. We live in the world of the Central Park Jogger case,[1] where false confessions put innocent kids behind bars. And the runaway power of modern prosecutors exacerbates this problem. With sweeping power over investigatory resources, charging instruments, and the grand jury process, even an innocent defendant has little reason to feel confident when sitting across from this machine. Add in the unbalanced sentencing standards that threaten to all but throw away the key for even non-violent drug offenses and defendants are presented with the choice to admit guilt or take their chance with a system that will most likely put them away much, much longer. If an accused drug dealer faced a vigorous, non-ham sandwich grand jury and a worst case sentence of 12 months instead of 10 years, the reliability of a guilty plea would be much more sound.

As it is, there’s risk-reward and then there’s Hobson’s Choice.

Were you hoping to read the whole opinion? Well, you’re in luck because it’s on the next page…



[1] Full Disclosure: I worked on a brief in a related matter arising out of the Central Park Jogger case.


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