Law: Justice gets a poor bargain: Richard Denton says only one question counts in New York courts: what is the deal?

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The Independent Online
SINCE 1791 every American citizen has enjoyed the constitutional right to 'a public trial by an impartial jury'. Trial by jury American-style, developed from an English tradition but performed with transatlantic flair and informality, has provided a rich tapestry of fable, fact and fiction that has variously informed, entertained, provoked and horrified, both the public and the legal profession itself. What is perhaps surprising, therefore, is to discover precisely how rare trial by jury actually is.

The New York Criminal Courts are housed in a squat block that despite its bulk fails to be impressive. The carefully carved inscriptions - 'Justice is denied no one' and 'Where law ends there tyranny begins' - stand oddly alongside the less poetic but more pragmatic motto 'No knives or firearms allowed'. Slotted into the clutter of downtown Manhattan, the 12-storey court building contains everything for the criminal justice system, from judges to jails.

Because of a curious case of bureaucratic centralisation, every single person arrested in Manhattan is brought to this building to be processed. Every year these courts handle 250,000 new cases but fewer than 1,000 will ever be tried by a jury. Some cases are dismissed at an early stage. The majority, however, are settled by persuading the defendants to plead guilty, in return for a much more lenient sentence than they would receive if they exercised their constitutional right to trial and were found to be guilty. This is called plea bargaining.

Urban crime in New York seems to be almost out of control. There are, for example, twice as many murders in New York City each year than in the whole of the United Kingdom. It is perhaps not surprising, therefore, to discover that the criminal justice system reflects the philosophy of omnipresent guilt. As one Supreme Court judge puts it: 'The presumption of innocence is a phrase that has been much misunderstood. Most of the defendants who come into my court have already been found probably guilty]' In fact, while the constitution may cherish the concept of the presumption of innocence, plea bargaining can only function on the presumption of guilt.

Howard Jones is a 23-year-old African-American. He is facing two charges of selling drugs. The case against him consists of police testimony. It may not be true, but he and the police both know that it is convincing enough. He already has one previous conviction that dates from a time when he was persuaded to plead guilty to a similar charge in return for a sentence of six months' probation. He is, therefore, a 'predicate felon'. If he were to exercise his constitutional right to trial and were to be found guilty, he would face a possible 18- year state prison sentence.

Sitting across the well of the court is Judge Harold Rothwax, known variously as the Judge from Hell and the Prince of Darkness. Seated in his black robes beneath an imposing oil painting of three diaphanous ladies - curiously, though inevitably, entitled 'Justice' - Harold Rothwax is an impressive presence. As the day goes on, flecks of saliva gather at the corners of his lips, disappointingly insufficient to justify the description 'foaming at the mouth' but disconcerting just the same.

At the defendant's side is his attorney, supplied by legal aid - paid for by the state to defend those who are prosecuted by the state. The prosecution is handled by an assistant district attorney or ADA. The stage is set and the tableau has all the appearance of a trial about to begin. Only the 12 jury seats are empty.

Howard Jones is not about to exercise his constitutitonal right to a trial by jury. He knows it. His attorney knows it. The ADA knows it. And the judge knows it. There is only one question. What is the deal? The defence attorney and the ADA approach the judge for a whispered bench conference. The defence lawyer makes appropriate noises about the inadmissability of some of the police evidence at trial. Judge Rothwax asks the ADA how low a sentence he is prepared to offer. 'Two to six,' he says - a six-year sentence with possible release after two years. The defence attorney leaps in to ask: 'To cover both charges?' A pause. The ADA replies 'OK'. It is more or less over. The defence lawyer returns to his client to explain the deal. The defendant rises.

'How do you plead?' the judge asks him.

'Guilty.'

'Do you realise that by pleading guilty you give up your constitutional right to a trial by jury?'

'Yes.'

'Do you realise you give up your right to cross-examine the witnesses against you?'

'Yes.'

'Has anyone forced or coerced you into making this plea?'

'No.'

'Are you pleading guilty of your own free will?'

'Yes.'

The whole process, from the defendant's entrance to his exit, has taken less than seven minutes.

In theory, plea bargaining should please everybody. In practice, it doesn't seem to satisfy anyone. The police and prosecution are frustrated because however efficiently they work, serious criminals are receiving light sentences and quickly re-entering the criminal economy. Defence attorneys feel that they have become little more than administrative assistants to the prosecution. Their greatest dread is the innocent client. All too often the best they can offer to such a defendant is to plead him guilty in return for a non-custodial sentence.

Even Judge Rothwax admits that: 'The choice of an innocent man to plead guilty may be the best informed and wisest choice in the circumstances,' he says.

Meanwhile, the community sees the criminal court building as little more than a legal processing plant. In the words of a legal aid lawyer: 'It's a huge alimentary canal for people - it eats you up and shits you out.'

It is inevitable that any criminal justice system will always be torn between the contradictory requirements of efficiency and fairness. It is perhaps the unique achievement of plea bargaining in New York that it has produced a criminal justice system that succeeds in being neither.

Richard Denton is the writer and producer of 'Inside Story: New York Law', to be shown on BBC 1 next Wednesday.

(Photograph omitted)

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