The Trouble with Guilty Pleas: Lessons of the Senator Larry Craig and John McTiernan Scandals

By EDWARD LAZARUS

Thursday, Sep. 13, 2007

Hindsight sure is 20-20, especially when it comes to pleading guilty to a crime.

As has been widely reported, this week Senator Larry Craig - the "not gay" Republican Senator from Idaho -- filed papers in Minnesota seeking to undo his August guilty plea to a charge of disorderly conduct, stemming from Craig's now-infamous encounter with an undercover cop in an airport bathroom.

Not quite so prominent on the radar screen (except perhaps in Hollywood), film director John McTiernan has also tried to take back his own legal mea culpa. McTiernan had pleaded guilty to a charge of lying to the FBI in connection with the investigation of private-eye-to-the-stars Anthony Pellicano, who has been indicted for using illegal wiretapping to get dirt on people targeted by his clients. In his guilty plea, McTiernan admitted hiring Pellicano to wiretap a film producer named Charles Roven and then denying to the FBI that he had done so.

The news media has treated these stories as exceptional. They involve very high-profile and successful people, who have somehow gotten caught up in the criminal law. In the news stories, Craig's and McTiernan's arguments in their own defense - just by dint of being news - are taken seriously and given a degree of credibility.

In this column, I'll argue, however, that thinking about these two cases as exceptional has things importantly backwards. In fact, Craig's and McTiernan's situations are in certain ways very typical of cases in our criminal justice system - and there are lessons to be gleaned from that typicality.

Craig's and McTiernan's Respective Cases for Reversing Their Guilty Pleas

First, let's take a look at the reasons Craig and McTiernan have offered in support of reversing their prior decisions to plead guilty.

Senator Craig's legal maneuvering is based on what might best be called the "panic defense." When pleading guilty, Craig signed the boilerplate disclaimers: He declared that he was not claiming innocence of the crime, and that he was entering his plea voluntarily, knowingly, and intelligently. Now, Craig says that was far from the case. He now tells us that he made these representations to the court not because he had done anything wrong, but rather because he was terrified of the consequences of fighting the charge. One of his home-state newspapers was already hounding him with an investigation into whether he was gay -- and Craig claims that he pleaded guilty, despite his actual innocence, in the desperate hope that no one would find out about the incident and assume the newspaper was correct.

Particularly in Senator Craig's case, it's not hard to imagine that his "panic" scenario could be credible and to sympathize, at least a bit, with his desire for a "do-over." Regardless of Craig's actual orientation or culpability, it must have been clear to him that fighting the charge would have a high political cost.

McTiernan's excuse for entering a plea he now says did not reflect actual guilt is a bit different. As the Pellicano case has dragged on, Pellicano's attorneys have charged the prosecutors with a variety of misconduct, including conducting an illegal search of Pellicano's offices. Riffing on this theme, McTiernan's new lawyers are now arguing that the key evidence showing that their client lied - a tape of a conversation between McTiernan and Pellicano - was seized illegally, in violation of the Fourth Amendment. Thus, according to McTiernan's new lawyers, their client should never have pleaded guilty to a charge based on inadmissible evidence arising out of a constitutional violation.

Why Both Craig and McTiernan Have a Strong Upside If Their Pleas Can Be Reversed

It is easy to understand why both Craig and McTiernan are now attacking their pleas: Neither one has much to lose - and each has a lot to gain.

Craig has already been about as publicly humiliated as any one person can be. Fighting his case can't add much to Craig's misery. And perhaps a miracle will happen. Perhaps the judge will let him withdraw his plea and perhaps, after that, Craig might win acquittal by successfully claiming that the police entrapped him. Even a remote prospect of such vindication must be alluring to Craig.

As for McTiernan, once he found out that the prosecutors were recommending a six-month jail sentence for a crime that he probably thought would get him only probation, his decision to plead out must not have looked like such a good deal after all. Faced with the choice between trying to revoke his plea and an impending trip to the pokey, McTiernan apparently decided to fight. Who could blame him?

The Insight These All-Too-Typical Cases Provide Into Our Criminal Justice System

In our legal system, the overwhelming majority of criminal cases - well over 90% -- are resolved though guilty pleas, rather than trials. And in a host of these cases, the defendants plead guilty for reasons other than a reasoned analysis of whether they have a winnable case. Such reasons often include the very ones Craig and McTiernan have cited: Panic and/or allegedly poor legal advice.

Many defendants face the unenviable choice between, on one hand, risking a harsh sentence by taking a borderline case to trial and, on the other hand, guaranteeing themselves relative leniency by pleading guilty to a subset of the charges against them. These are the everyday trade-offs that allow the system to (barely) function. Prosecutors manage their caseloads by cutting the best deals they can. And defendants, with the guidance of often-overwhelmed defense counsel, manage their risks just the same way.

For this reason, lots of defendants could reasonably invoke Senator Craig's "panic defense." Many of them plead guilty despite a genuine possibility of defeating the prosecution's case based on either a lack of proof beyond a reasonable doubt, or a potentially viable defense (such as, in Craig's case, entrapment) simply because they fear the consequences of not pleading guilty. In Craig's case, this fear was of public humiliation (enhanced by the prospect of facing an additional "peeping" charge that was dropped in exchange for his plea). For most defendants, the fear is of longer incarceration. But the principle is pretty much the same: Fear is the oil that lubricates the machinery of the criminal justice system - and if panic alone were to become a basis for revisiting plea bargains on a broad scale, then the entire system would come to a grinding halt.

Like Craig's case, McTiernan's too is all too typical. It is hardly unusual for a defendant to plead guilty before having a chance to challenge the admissibility of the prosecution's evidence on Fourth Amendment or other grounds. But when this argument is made, it is always or almost always a loser. As far as I'm aware, it is highly improbable, if not impossible, for a defendant to get a second chance at trial just because it later turns out that key evidence might have been unlawfully obtained. Were it otherwise, the courts would be instantly overwhelmed with motions to re-open plea deals.

The system does build in some checks on the behind-the-scenes deal-making. Guilty pleas have to be approved by a court. And defendants are required to "allocute" - that is, to admit to a factual basis for the crime to which they are pleading guilty, and to state that their pleas are knowing and voluntary. But these requirements can sometimes be little more than a formality, a pro forma approval of the result of a negotiation between prosecutor and defendant that is far more pragmatic than legal.

In sum, the Craig and McTiernan stories, far from being exceptional, are useful reminders that our system involves plenty of unseemly sausage-making behind the scenes. In particular, the system depends on a conveyor belt of guilty pleas that we hope delivers rough justice as often as possible, but sometimes - because of the pressures on both prosecutors and defendants -- does not. Even the high and mighty are subject to these vagaries.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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