A few days ago, I attended the excellent white collar conference sponsored by the National Association of Criminal Defense Lawyers (NACDL) in Washington, DC. During one of the panels, an interesting topic arose: should criminal defendants be entitled to discovery from the government before deciding whether or not to plead guilty?
My gut reaction was: of course they should. Approximately 97% of all defendants in the federal system plead guilty. So this isn’t an isolated problem. At the plea stage, defendants make a critical, life-changing decision and the current system means that they are often doing so with incomplete information. Because the decision to plead guilty is often made before trial and even before indictment, the government’s discovery obligations—under Rule 16, Brady/Giglio and Jencks—have not kicked in.
That leaves defendants deciding whether to plead guilty without knowing all the facts. And, equally troubling, it leaves lawyers trying to advise them without knowing all the facts.
In 2002, the Supreme Court held in United States v. Ruiz, 536 U.S. 622 (2002), that the Constitution does not require the government to disclose impeachment evidence at the plea stage. Two years later, the Court held that the plea stage is a “critical stage,” thus implicating the right to counsel. Iowa v. Tovar, 541 U.S. 77 (2004). At the NACDL conference, we discussed the Supreme Court’s recent decisions in Missouri v. Frye and Lafler v. Cooper, both decided in 2012. Those cases held that a defendant can raise an ineffective assistance of counsel claim where he accepted a plea deal on the basis of faulty legal advice.
It is hard to understand how a lawyer can provide effective assistance to a client without knowing what favorable and unfavorable evidence the government has in its files.
At a plea hearing, the judge always asks the defendant a litany of questions to determine whether the plea is voluntary and knowing. She asks those questions because, in theory, it is important to determine whether the defendant is giving something akin to informed consent to conviction of a crime.
According to some of the participants at the NACDL conference, some districts require the government to disclose its discovery at the plea agreement stage. Others offered that their districts have no such requirement and they make plea deals in the dark (or by a dim bulb perhaps, based on whatever information the prosecutor chooses to provide).
There are some serious countervailing positions here. First, some will argue that quick pleas allow for an efficient judicial system. If we take as a given that a majority of people prosecuted are actually guilty, and that guilty pleas save them some jail time, then the system makes sense. If we make it more difficult for prosecutors to obtain guilty pleas, then the system simply won’t work.
This argument doesn’t really apply in the context of complex white-collar cases. The plea process is rarely quick in such cases. And, in broader terms, I’m far from convinced that efficiency—rather than fairness—is the goal here. This is a criminal trial; not a corporate deal.
Second, some will argue that prosecutors have a natural inclination to turn over harmful evidence to encourage a guilty plea. That may be true, but defendants should be entitled not only to learn about the evidence against them but also about exculpatory or impeachment evidence. Without knowing whether a witness has been improperly influenced by a cooperation deal, for example, a defendant may plead guilty after learning what inculpatory evidence the witness will offer at trial.
At the conference, we discussed the need for a NACDL working group to address this important issue. I hope NACDL will do just that. This is a critical issue and one that must be addressed to ensure that the 97% of defendants who plead guilty do so in a knowing and voluntary fashion—and do not plead guilty not out of uninformed fear or the prosecutor’s desire for expediency.