The title of this post asks a question to which the answer should be unanimous.Of course legal outcomes should reflect the truth. What's the alternative? Fiction? Lying?

As this entry on the Senticing Law & Policy blog shows, however, legal outcomes very often reflect a fable agreed to by the lawyers, rather than the truth. In criminal cases, the great majority of outcomesover 90%are ordained in plea agreements. As the article shows, however, in at least one category of cases (and in truth many others), plea agreements typically deep-six the truth in favor of some sanitized account  --  an account that, in the words of one frustrated judge, bears "no factual resemblance to what occurred." The article notes:

Judge Michael P. Donnelly had seen enough by the time his spreadsheet of plea deals in sexual-assault cases reached nearly 200. In each case, the defendant pleaded guilty to a lesser crime that bore no factual resemblance to what occurred, allowing many to avoid sex-offender registration requirements.

Many rape cases involved pleas to aggravated assault, a crime involving serious bodily harm in which the defendant was provoked by the victim -- a scenario common in a drunken bar fight but wildly inconsistent with rape. "It's sidestepping the truth. It's legal fiction, nothing more than a lie," said Donnelly, a Cuyahoga County Common Pleas Court judge. "No one can defend this process. There is no ethical defense."

I regret to report that fictionalized and sanitized accounts of the defendant's behavior are hardly limited to sex cases. They are epidemic. Indeed they have a name: "swallowing the gun." At the urging of defense counsel, prosecutors routinely agree to a dumbed-downand, let's face itlargely whited-out account of the defendant's behavior in order to move the case and get to the next in a very long line.

Something needs to get done to change this. 

In one major state, change may be on the way. As the article recounts:

With Donnelly leading the charge for change, the Ohio Supreme Courtunless legislators objectcould amend court rules to require charges in felony plea deals to be factually based -- to reflect what actually occurred. "Ending the charade" would promote transparency and foster public accountability in the justice system, Donnelly said. "We can't be allowing pleas to something that everyone knows didn't happen."

The court's rules commission has advanced the proposal by moving to seek public comment on the changes in Criminal Rule 11 as part of the early steps of a lengthy process leading to approval or rejection. The Ohio Judicial Conference, which represents the state's judges, is on board with the change, calling "often convenient" plea agreements "contrary to the objectives of the justice system."

My reaction is, hooray! That truth should displace convenient fiction is an objective every citizen will applaud, right?


Criminal-defense lawyers oppose the change, saying that it would unfairly limit their options in representing criminal defendants and could increase the number of cases going to trial. "While (plea deals) may be factually incorrect, from a justice perspective it is the right thing to do," said Ohio Public Defender Timothy Young. "We have punishments that are not proportional to everyone who commits a crime because not every crime, while of the same name, is of the same nature."

I love the phrase, "limit their options." Q: What "option," specifically, does Mr. Young have in mind? A: The option of getting the case resolved based on concealment. Particularly revealing is Mr. Young's proposal that, "While (plea deals) may be factually incorrect, from a justice perspective it is the right thing to do."

In other words, we get to "the right thing" by deceit. Is there anyone left who still wonders why criminal defense (and, let's be honest, to a disquieting extent the legal profession as a whole) has the reputation it does?

Barry Wilford, public-policy co-director of the Ohio Association of Criminal Defense Lawyers, said, "Truth in plea bargaining is an easily stated expression, but it begs the question, 'What is the truth?'??" Prosecutors and defense lawyers, with the ultimate approval of judges, "have to have some freedom, some negotiating room. ... There's give and take by both sides. Each side has its objectives. The law should permit them that liberty," Wilford said.

Note how quickly this passage descends into a combination of solipsism and incoherence. The premise that, darn, we just can't know the truth is (a) false and (b) a dodge, which we can see by the thundering certitude with which defense counsel will maintain that "the truth" is that someone elsesay, the leader of his client's gang—is really the person responsible. When making an argument like that, which is standard procedure at trial, you'll be waiting a long time to hear defense counsel follow up with, "Of course, I really can't know 'the truth.'"

And what does the phrase "negotiating room" mean? If it means room to negotiate what sentence, within a (typically) broad range, the prosecution will recommend, then I'm all for it, because that takes root in non-fact dictated factors such as policy, the opportunities for rehabilitation, or the scarcity of prison space. But that is not what it means, not in the context of this story. It means intentionally omitting the most damning facts of the case. And intentionally omitting facts is the functional equivalent of lying about them.

The head of Ohio's Rules Committee put it best:

Greene County Common Pleas Judge Stephen A. Wolaver leads the Ohio Supreme Court's criminal-rules committee and believes truth-in-plea-agreements should be adopted to foster public confidence in courts. "If you are going to handle a case based on the fact a person committed a crime, transparency says they should have committed that crime. If there is no fact basis for a particular crime, the question is raised, 'Was there actually justice?'??" Wolaver asked.

Just so. If we are to continue to have plea bargaining, it needs to get an honesty infusion so that the offense of conviction reflects what the defendant actually did. It's not just building confidence in the system that requires this. It's public safety. When the adjudication rests on sanitized fiction, the sentence is likely to be tilted toward unjustified leniency. And, with our sky-high recidivism rates, an unjustifiably lenient sentence will result in the criminal's premature return to civil society to pick up where he left off.