The Bestest System Around–Jeff Gamso

Photo credit: Windypundit and Mark Draughn.

Photo credit: Windypundit and Mark Draughn.

My post yesterday regarding Judges Kane and Rakoff and innocent people pleading guilty drew a response from Jeff Gamso. See here.

Jeff is a very bright guy, a highly regarded criminal defense lawyer (from my hometown once upon a time), and a helluva a writer. I urge you to read what he has to say. I also look forward to reading his suggestions that he promises will come in subsequent posts about how the system might be improved.

I hope Jeff concentrates on the federal system. In particular, I hope he tells me whether he wants federal district judges to get all up in his business as he negotiates pleas. Additionally, I hope he tells me whether guilty pleas by innocent people in federal court represent a significant problem or whether such events are rare. If he thinks there is a significant problem, I would be very glad to learn upon what basis he concludes that is so.


23 responses

  1. When Judge Rakoff offered his views last November, I responded in a post that I doubted the involvement of judges would serve a salutory purpose. It’s not that I disagree with the problem, but that judicial involvement is hardly the solution.

    When I received a heads up from a mutual friend that Judge Kane would be posting his reaction at The Marshall Project, I decided not to reply because of my strong disdain for The Marshall Project, despite my appreciation of Judge Kane’s concern for the problem.

    That said, I’m deeply appreciative of Jeffrey addressing the subject. I, too, look forward to learning of his solutions to a terrible and very real problem.

  2. Good series of posts Judge RGK.

    I read your earlier post as well as the Jeff Gamso post (which he originally contemplated being a comment here but it went sideways and stuff on him).

    Anyway, this subject IMO is another one of those zones where we have tended to lose the purpose of an understanding of the reason for trials (and the value of troof and troofiness).

    As I have said before, expounding upon the evolutionary understand of Keith Richards, “shit happens.”

    The jury trial system (both grand and petite) was originally designed to protect the public from government oppression.

    Someone should sue those bastids for defective products.

  3. An article in the Pen L Rev years ago on the emerging plea bargaining system convinced me that the traditional criminal law I was teaching made little or no contact with reality. At the time I thought that was a problem and decided to move to other areas. Usually I look back on youthful decisions with regret. I am now convinced that one was spot on. Opinion evidence from experienced judges says there is or is not a problem of pleas coerced from the innocent, and there is no agreement on who is innocent for purposes of the debate. Then our witnesses disagree as to how important these false pleas are if they exist. Then if the pleas exist and are a significant problem there is no agreement on a remedy. In the Middle Ages no one debated how many angels could dance on the head of a pin. They debated if the concept place applied to non embodied non omnipresent beings. We may have been led to todays version of that debate,

  4. I have been a defense attorney for 25 years with an exclusive federal criminal defense practice. I represent exclusively indigent individuals. In all of these years, many clients who had some type of defense preferred to plead guilty because of the horrible consequencess they faced if they lost the trial: mandatory minimums, and the U.S. Sentencing Guidelines, just to name a few of the culprits. So I have to agree with Mr. Gamso that sometimes innocent individuals do plead guilty.

  5. typo:

    The “the evolutionary understand of Keith Richards” should read “the evolutionary understanding of Keith Richards”

    As Gilley on SNL was wont to say: “sorry.”

  6. Judge Michael McCuskey, who was a district judge for the Central District of Illinois from 1998 to 2014 used to regularly and frequently brag in open court that no defendant had ever been acquitted in his court. Not one. The best anyone ever did, as far as I know, is one defendant who got a hung jury. He was convicted after a retrial. Now imagine yourself as an attorney trying to explain the options to an innocent defendant. Or imagine yourself as an innocent defendant trying to decide whether to take the government’s offer in exchange for a guilty plea. Do you really think there were no innocent defendants in Judge McCuskey’s courtroom over 16 years?
    (Just out of curiosity, Judge K, what are the statistics in terms of numbers and percentages of acquittals in your courtroom over the years you’ve been a judge?)

  7. I think there is a problem with innocent people pleading guilty as a damage control measure. I doubt that it will be possible to determine a reliable estimate of the frequency of this problem. I think Judge K is correct in trying to limit the discussion to federal cases.

  8. John,

    I do not know the numbers but they are very small. In drug cases, where there is no dope to put in evidence (a “dry” conspiracy) and only snitches are involved, the defendant has a chance of a not guilty verdict depending upon how slimy the cooperators are and the skill of defense counsel. Since the great majority of criminal cases that I try to a jury are drug cases, and has been that way since I took the bench, I would guess the chance of a not guilty verdict on my docket is about 0.5 percent or less.

    All the best.


  9. Miguel,

    Do mean not guilty of any crime?

    For example, a guy who schleps drugs may not be guilty of a charged conspiracy, but may be guilty of possession with intent to distribute that is not charged but could be. In other words, I am interesting in knowing about actual or factual innocence for a crime that is charged or could be charged on the same basic facts.

    All the best.


  10. The system and the public (jury) assumes, pretty automatically, that if the cops dragged your sorry ass in and the prosecutor looks down his nose and points his finger and you have an appointed attorney, who may not appear to be particularly prepared, then you must be guilty of something.

  11. In the 1990s, the typical case would be 1- women who were guilty of marrying or dating losers. They would be charged in a huge conspiracy and their only alleged participation would be their presence during a meeting among all the cooperating codefendants or just picking up a phone and speaking to an undercover cop undercover cop or just going for a ride with their boyfriend/bad boy to a meeting.

    2- in the 2000s, it would be truck or bus drivers coming from Mexico in which the vehicle had a secret compartment and the driver did not have control of the vehicle in Mexico. There were reports by senior DEA agents warning about blind mules.

    3- And some of my clients charged with a 1326 violations have been victims of duress in the border towns of Mexico like Reynosa, but those are tough to prove as you know.

    Hope this helps.

  12. Your perspective seems to be driven by drug cases. Since the entire enterprise is illegal, someone involved in some way with it, is probably guilty of something – at the very least, willful blindness to an ongoing conspiracy. But, the situation is much more trickier where the charged crime involves illegal activity intertwined in otherwise perfectly legal enterprises – which is often the case in say white collar crimes. When the government sweeps lot of defendants in such cases, there are quiet a few who are ‘factually innocent’ at least in the sense that they lacked the mens rea and were not even aware that they were involved in anything illegal or understood little of the complex machinations somebody pulled. The government is usually gracious with their plea offers for such defendants but try taking it to trial and it is a very different ball game. When we ‘win’ for such defendants on appeal, we win big in the sense that the appellate court directs acquittal but the probability is low and even if that happens, the defendant’s life is as they knew it is in pieces. I’m guessing, Judge Rakoff sees more of such cases than you do.

    There are of course, other dubious cases, where innocence or guilt doesn’t make sense outside a federal court. Like perfectly innocent people who talk themselves into a §1001 conviction, because the natural instinct of most inexperienced people is to instinctively utter an inculpatory no when faced with an accusatory question – you must have at least seen a few of those cases.

  13. TF,

    Yes, I don’t see a lot of complex fraud cases. I get your point. However, the ones I do see involve very good lawyers who are not likely to allow a defendant to plead guilty when they are factually innocent unless the government offers a misdemeanor.

    All the best.


  14. Miguel,

    We see some “blind mule” cases since Nebraska is a distribution point for other places in the US. Mule drives from Texas to take a job in one of the huge packing plants here while carrying a bunch of dope. Whether the mule is actually blind as opposed to willfully blind is a tough call.

    All the best.


  15. Judge: So federal investigators and prosecutors are so proficient that of the people who chance trial, less than one percent are not guilty? Can’t happen. And the unlikelihood of that happening informs the discussion of defendants taking pleas when they are not, in fact, guilty.

  16. Subject matter aside, based solely on your writing (I know very little about your district or even the 8th circuit), it seems you are either blessed with a highly ethical US Attorney’s office or you have developed enough of a reputation that nobody tries tricks like Brady or such. While I would concede your point that on the whole, federal courts are better that many state courts, there are a couple of points:

    1. Federal prosecutions can and occasionally do get very dirty. Not all judges are lucky as you to be spared them.

    2. There are some quintessentially federal problems where the the government for some reason steadily expands the reach of statutes until it becomes so intolerable that some higher court puts some boundary on it e.g., Honest services, insider trading, clean water. If the limiting ruling had come earlier, there would have been no case to plead guilty to.

    There are certainly some weak points in Rakoff’s article but your rebuttal is too narrow and lacks substance.

  17. Judge, are you saying that a really good lawyer will advise an innocent client to go to trial when it is virtually certain the client will be convicted and that his sentence will be enhanced because of failure to accept responsibility? I would call that a really bad lawyer.

  18. TF,

    You sound like the Circuit when they reverse me–too narrow and lacking in substance. That’s me. No doubt about it.

    All the best.


  19. Your Honor, what is the size of your criminal docket? I was going to take the <0.5% figure and extrapolate how many defendants per year who appear before you are innocent, but then I realized I have no idea the size of the District of Nebraska's criminal docket. I guess you have few illegal entry cases inflating the District's numbers, so my best guess is 500 criminal cases a year, but I suspect I am way off.

  20. Paul,

    For the period 2008 through 2012, here are the numbers for Nebraska: 3,060 criminal cases resulted in sentences, 2,972 cases, or 97.1% resolved by plea, and 88 cases, or 2.9% resolved by trial. Here are the top five types of case: Drugs 46%; Immigration 17.1%; Firearms 13.3%; Fraud 8.1%, and child pornography Child Pornography 3.8%.

    For me personally during the same period of time, 652 cases resulted in sentences, 628 or 96.3% resolved by plea and 24 or 3.7% by trial. Here are the top five types of my cases: Drugs 57.7%, Immigration
    13.0%, Firearms 11.6%, Fraud 5.9%, and Child Pornography 3.9%.

    For the source of the foregoing and other data for the District of Nebraska, see Sentencing Data for the District of Nebraska: 2008-2012. For the source of the foregoing as applied to me and other data relating to my docket, see Sentencing Data for Richard G. Kopf: 2008-2012.

    Hope this helps. All the best.


  21. It is helpful. Thank you for indulging my curiosity. So if the innocence rate is <0.5% that would mean 2 or 3 innocent defendants before you from 2008 to 2012. Have you had two defendants you believe were innocent? I cannot resist asking.

    If yes, I will guess one of the two is a fraud case, maybe both.

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