Our criminal justice system is primarily one of pleas, not trials. People v. Tiger, 32 N.Y.3d 91, 114 (2018) (Wilson, J., dissenting). Indeed, in 2016, less than 3% of nearly 50,000 criminal dispositions in New York state went to trial. Id. The Court of Appeals has observed that, generally, a plea of guilty marks the end of a criminal case, not a gateway to further litigation. People v. Taylor, 65 N.Y.2d 1, 5 (1985). Yes, but guilty pleas often present fertile grounds for direct appeals or collateral attacks. While not all such appeals directly implicate guilt or innocence, innocent people do plead guilty. That fact was explored by Judge Rowan D. Wilson’s dissenting opinion in a noteworthy 2018 case involving a defendant who pleaded guilty and then sought post-conviction relief, based in part on proof of innocence. People v. Tiger, 32 N.Y.3d at 112, 114.
Forty-five percent of the 166 exonerations nationally in 2016 involved convictions based upon guilty pleas. Id. at 114. The Court of Appeals has made careful choices to prohibit the waiver of certain fundamental rights, in part because of a concern that the failure to do so would encourage innocent defendants to plead guilty. Id. at 117. Innocent defendants may plead guilty for many reasons, including the threat of a more serious charge and a far longer sentence after going to trial. Id.
We know that there are many false confessions that lead to convictions after a verdict or a guilty plea. Indeed, more than 20 percent of known exonerations for murder were at least in part due to false confessions. Id. at 118. The most potent psychological inducement for a false confession is the suggestion that the suspect will be treated more leniently if he or she confesses, and more punitively otherwise. Id.
On direct appeal, guilty pleas are invalidated for a variety of reasons, some implicating guilt or innocence, some not. At plea proceedings, the defendant may negate an element of the crime or raise a possible defense and thereby cast significant doubt on his or her guilt. In such situations, if the plea court failed to conduct a further inquiry to ensure that the plea was knowing and voluntary, the plea may be vacated upon appeal. The lower court may also fail to provide required information, such as the constitutional rights waived by a guilty plea; all direct consequences that would flow from the guilty plea, including the periods of imprisonment, post-release supervision, and probation; and possible deportation consequences if the defendant is a non-citizen.
Many issues ordinarily survive a guilty plea, and some even survive a so-called waiver of the right to appeal (actually a waiver of the right to have certain issues reviewed by the appellate court). The issues not forfeited by a guilty plea and valid appeal waiver include the mental competence of the defendant; constitutional speedy trial violations; jurisdictional defects in the accusatory instrument; and illegal sentences. One critical issue that is not relinquished by a guilty plea (CPL 710.70(2)), but that can be rendered unreviewable by a binding appeal waiver, is a fully litigated pretrial suppression issue.
In addition to seeking to reverse judgments rendered on guilty pleas upon direct appeal, criminal defendants may collaterally attack guilty pleas via post-conviction motions, alleging ineffective assistance of counsel and other issues. But under current law, innocence cannot be a basis for such relief. (Earlier this month, the New York State Bar Association approved a report of the Task Force on Wrongful Convictions. NYSBA Passes Recommended Criminal Justice Reforms, NYLJ (April 18, 2019). One recommendation would address concerns expressed in Judge Wilson’s People v. Tiger dissent by amending CPL 440.10 to permit persons who pleaded guilty to move to vacate their convictions based on newly discovered, non-DNA evidence, regarding innocence.)
Three aspects of recent criminal justice reforms may lead to fewer flawed and unfair guilty pleas. See Lawmakers Reshape NY Criminal Justice System, NYLJ (April 1, 2019). First, mandatory release of defendants for almost all misdemeanors and nonviolent felonies will mean fewer guilty pleas induced by the promise of release from pretrial detention. Second, the requirement of greater pre-plea disclosure by the prosecution should reduce the number of ill-advised pleas. As Judge Wilson observed, prosecutors often offer the most persuasive plea bargains where the evidence is weakest, to avoid having the evidence tested at trial—and this can lead to “innocent guilty pleas.” Id. at 116.
Third, statutory speedy trial issues will be available for review after guilty pleas. Previously, appellate review of violations of CPL 30.30 (requiring the prosecution to establish readiness for trial within a specified time after commencement of the criminal action) was forfeited by a guilty plea. Under the amended law, the denial of a CPL 30.30 motion to dismiss can be reviewed on an appeal following a guilty plea. Further, mandatory language (such issues “shall” be reviewable), appears to indicate that CPL 30.30 issues will be available, despite enforceable waivers of appeal.
In addition to these reforms, significant state funding for criminal defense will improve the prospects for fewer flawed and unfair guilty pleas. As the aforementioned dissent pointed out, some guilty pleas are induced by defendants who fear that, if the case went to trial, counsel would not provide adequate representation. Id. at 114, 116. The State Office of Indigent Legal Services is advancing statewide criminal defense reform by using state funding to ensure counsel at first appearance, quality representation, and caseload standards compliance. Executive Law §832(4).
Among the agency’s efforts are new training opportunities for appellate counsel providing mandated representation. Attacking guilty pleas and appeal waivers and making CPL 440.10 motions will be among the topics covered at a May 17 pilot training program, developed by appellate leaders statewide who participate in the ILS Appellate Defender Council. The Albany program will be introduced by the Hon. Elizabeth Garry, Presiding Justice of the Appellate Division, Third Department.
The hope is that the landmark criminal justice reform, significant state funding for public defense, and expanded training programs for the criminal defense bar will result in more fair and just guilty pleas.
Cynthia Feathers is the Director of Quality Enhancement for Appellate and Post-Conviction Representation at the New York State Office of Indigent Legal Services.