Innocents in Prison? No Kidding, Judge Rakoff!

In early April, Judge Jed S. Rakoff of Manhattan’s federal trial court spoke at the University of Southern California law school. His topic was “Why Innocent People Plead Guilty.”

Judge Rakoff has apparently long been aware that in the “sweet land of liberty” innocent people are systemically coerced into guilty pleas, via what can only be interpreted as widespread prosecutorial abuse. Yet these coerced plea bargains can only go through with a judge’s involvement.

In light of the American Bar Association standards for prosecutors, which say they have “ the duty ... to seek justice, not merely to convict ,” and its Model Code of Judicial Conduct, which calls for an “independent, impartial, and competent judiciary," Judge Rakoff’s words should be unsettling to every American.

It’s a system of prosecutor power and prosecutor discretion.

“Plea bargains have led many innocent people to take a deal,” Rakoff said, according to USC News . “People accused of crimes are often offered five years by prosecutors or face 20 to 30 years if they go to trial. … The prosecutor has the information, he has all the chips … and the defense lawyer has very, very little to work with. So it’s a system of prosecutor power and prosecutor discretion. I saw it in real life [as a criminal defense attorney], and I also know it in my work as a judge today. … We have hundreds, or thousands, or even tens of thousands of innocent people who are in prison, right now, for crimes they never committed, because they were coerced into pleading guilty.”

When I read these words, I was astonished—not by the content, which I know to be true, but by the fact that Judge Rakoff said them. One of the most powerful “chips” in the prosecutor’s pile is the cooperator, an effectively coerced, bribed, and programmable piece of “evidence.” It’s a “chip” of which Judge Rakoff has long been a leading champion.

Cooperators are prosecution witnesses who have either pleaded guilty in return for lenient sentences or been assured (directly or implicitly) they can avoid indictment—on the condition they provide the testimony a prosecutor requires against another she’d like to jail. Think this shady quid-pro-quo arrangement encourages embellishment, creativity and omission from the witness box—resulting in the occasional injustice?

At the behest of prosecutors, Judge Rakoff routinely doles out no-jail sentences to cowardly cooperators, oft accompanied by rationalizations for the press. A  well-noted example  was his commentary, last January, while granting a lowly cooperator, named Wesley Wang, a non-prison sentence:

Many countries of the world look with disfavor upon the American user of cooperators, especially if that cooperation results in no jail or a very significant lesser sentence … [but prosecutors] could not achieve the marvelous successes they’ve had ... without asking judges to give a very substantial benefit to cooperators.

What “many countries of the world” recognize is the obvious potential for abuse. Judge Rakoff’s support strengthens the prosecutor’s coercive hand, no doubt contributing to the alarming injustices described in his USC talk. I’m puzzled how he squares that.

Judge Rakoff routinely doles out no-jail sentences to cowardly cooperators.

Why was I not surprised by the facts Judge Rakoff admitted? How can I be so sure (besides common sense) of the flaws in the cooperator game? Because, in 2009, I was convicted of a dubious crime that I did not commit, on the strength of former colleagues appearing in the witness box delivering slanted and well-rehearsed testimony for the prosecutors. The judge in my case: Jed S. Rakoff.

I was awed by the fiction flowing from lips of five former colleagues—three surely worried about indictment similar to mine, one likely worried about a potential obstruction of justice charge and, of course, a classic “plead guilty for sentence leniency”  Judas Iscariot. The last offered testimony so ridiculous that my attorney, Reid Weingarten, called timeout and told Judge Rakoff how much the witness’s story had changed: “We got approximately 19 or 20 packets of handwritten notes [from the prosecutor’s dozens of sessions with the witness]. Some are just a scribble or two, some lengthy, and that was it. ... I am comparing ... in my head the notes and what we’re hearing from the witness stand, and there only about a bazillion things that are either different or in addition."

Reid got no joy from Judge Rakoff. I got two years in prison. “Judas” got probation and the others ducked trouble. Oh, upon my release from prison, one of the five contacted me to  apologize over lunch. Another apologized in the courthouse hallway—just before testifying!

I know I’m not the only one to suffer this treatment in Judge Rakoff’s courtroom. I recently reviewed a book  written by James Fleishman (Inside Story: The Wall Street Criminal Who Wasn’t) regarding his similar journey.

Freedom lost to time cannot be replaced. However, if Judge Rakoff would cease being a reliable paymaster in the cooperator game, he might help reduce the number of confined innocents he laments. His USC talk shows Citizen Hyde sees some injustice. It is Judge Jekyll I’m hoping does something about it.

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