CLEVELAND — Earlier this year, The Washington Post’s Pulitzer-Prize-winning columnist George F. Will wrote a thought-provoking column on America’s federal justice system which ran in The Plain Dealer March 10 (”Relying too much on plea deals can undermine justice”). Will stated the only right affirmed both in the Constitution of 1787 and in the Bill of Rights is the right to trial by jury.
Article III of the Constitution states, “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.” The Sixth Amendment of the Bill of Rights guarantees that, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury ….”
Will opined that plea bargaining, an arrangement between prosecutors and defendants circumventing a trial in exchange for a guilty plea and a lesser sentence, is the “most pervasive and glaring civil rights deprivation.” In 2022, according to Will, 98.3% of federal criminal convictions, and about 95% in the states, resulted from bargained guilty pleas. “To a significant extent,” he reported, this occurred through various methods of coercion.
For example, even in municipal courtrooms, first-time offenders arrested for “operating a vehicle impaired” (OVI, as DUIs are known in Ohio) often agree to have the charges reduced to reckless operation. For legal fees, a fine, court costs, driver’s license points and/or a possible temporary suspension of driving privileges, the case is adjudicated. This is less risky and more expedient than going to trial with the likelihood of greater penalties for an OVI guilty verdict.
A recently published American Bar Association 2023 Plea Bargain Task Force report states, “Some [court] jurisdictions have not had a criminal trial in many years.” At higher levels, a defendant who doesn’t agree to plead faces the possibility of harsher “trial penalty” sentencing if convicted.
Will argues this is unjust.
One of the ABA’s recommended reforms is that sentences should not be punitively inflated simply because a defendant exercised the right to a trial.
In 2005, my fellow jurors, hearing an aggravated burglary criminal case in Cuyahoga County Commons Pleas Court, elected me as jury foreman. After three days of deliberation, we ended up hung, but went from 9-3 to convict to 10-2 to acquit.
Those who follow politics have witnessed the lives of well-known politicians impacted by recent indictments, convictions and even releases from prison.
Last month, U.S. District Judge Timothy Black sentenced former Ohio House Speaker Larry Householder and former Ohio Republican Party chair Matthew Borges to 20 years and five years, respectively, in federal prison. After a six-week trial in a Cincinnati federal courtroom, a jury had found both guilty for their roles in the Ohio House Bill 6 $60 million bribery scandal.
During another week in June, a federal grand jury indicted former President Donald Trump on 37 counts while former Cuyahoga County Commissioner Jimmy Dimora was released from a federal medical center in Boston after serving 12 years of his original 28-year corruption sentence.
In various ways, including leaked recordings and released wiretapped conversations, Trump, Householder and Dimora did not cast themselves as sympathetic figures. Nonetheless, they had, and in Trump’s case, have the right to go to trial either believing in their innocence or not foreseeing a unanimous jury guilty verdict. Both Householder and Dimora would probably have received lesser sentences had they plea-bargained or been more contrite. Federal judges hammered them both at sentencing.
Householder, like Dimora, claimed any contributions or gifts received were just part of doing governmental business. Dimora’s appeal on those grounds was recently denied. Both Householder and Borges have appealed their convictions, even though most are rarely overturned.
If a plea bargain cannot be reached, prosecutors often revert to a term called “stacking,” meaning overcharging a defendant and hoping that at least one of the charges leads to a conviction at trial. Stacking, in my opinion, occurred in both the Trump and Dimora indictments.
Public defenders are available to those who cannot afford an attorney, but not many court-appointed lawyers are willing to provide a rigorous defense when they are often paid a set amount per case. The cost of a federal trial is usually prohibitive unless someone is wealthy or a large corporation is charged.
Five men were indicted as part of the HB 6 investigation. One died by suicide while two others, Juan Cespedes and Jeffrey Longstreth, accepted plea deals. Both may have had deeper involvement in the scandal than Borges, but likely will get lighter sentences, having turned governmental witnesses. Borges was also offered a deal but rejected it, opting for a jury trial.
Eleven years ago, Dimora was convicted on 32 of 33 criminal counts as part of a two-year federal investigation of Cuyahoga County corruption. Dimora’s co-target, former Cuyahoga County Auditor Frank Russo, received a reduced sentence after cooperating with federal investigators. Ironically, most of what Russo told them they probably already knew from wiretaps. In 2020, Russo was also released from a federal medical center, having served only 10 years of his 22-year prison sentence. He died two years later.
During many high-profile federal investigations, a wide net is cast, hoping to snare role players who might help convict the main targets. The county investigation netted convictions of more than 70 people, mainly via plea agreements.
One of the unfortunate “collateral damage” victims was Harland Diamond, the former owner of Executive Caterers of Landerhaven. As The Plain Dealer reported at the time, Diamond “admitted he conspired with Dimora to help use campaign contributions” to pay for an event he had catered, as the only way to collect money Dimora owed him.
During the investigation, Diamond spent thousands in legal fees, claiming that, as a layperson, he didn’t know detailed campaign finance laws. He finally accepted a plea deal, rationalizing, as he told me, that any punishment for a then-septuagenarian likely would not be severe. He was correct when U.S. District Judge John Adams sentenced him to probation, questioning why Diamond was even appearing before him. Ironically it was the only indictment Dimora was acquitted on, but sadly Diamond had already pleaded guilty.
With current federal sentencing guidelines, judges have narrow latitude in sentencing, even if they do not agree with the circumstances or proceedings leading up a plea agreement.
Among other possible collateral damage victims are Trump’s Mar-a-Lago aide Walt Nauta and property manager Carlos de Oliveira, who were indicted for making false statements and concealing documents. While Trump is their target, prosecutors clearly hope these employees will flip on Trump to avoid possible prison sentences.
Will contends this is not what our Founding Fathers probably envisioned when they wrote our guiding documents.
I agree with Will.
Republican Bob Paulson, the former mayor of Solon, writes an occasional column on politics from the middle.
To share ideas and feedback with Bob Paulson: bobpaulsonPD@gmail.com
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