Plea Bargains: Necessary Tool, Or Cop-Out?

Guests:

Laurie Levenson, professor at Loyola Law School, formerly a federal prosecutor in Los Angeles

Barry Scheck, co-director of the Innocence Project at the Benjamin N. Cardozo School of Law, former president of the National Association of Criminal Defense Lawyers

Most criminal convictions are the result of plea bargaining, a process of negotiations between prosecutors and defense attorneys. Critics argue that criminal defendants can get off too lightly, and defendants say they're often pressured into accepting deals.

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NEAL CONAN, host:

This is TALK OF THE NATION. I'm Neal Conan, in Washington.

TV dramas focus on the court room, but in real life, less than 10 percent of defendants ever go to trial. The vast majority of criminal cases get resolved behind the scenes in a plea bargain where prosecutors and defense attorneys negotiate a deal. We'll learn in a moment that both sides have their reasons. Despite its prevalence and - some would say - its necessity, given today's overcrowded court system, plea bargains have many critics. Some victims and their families argue that criminal defendants can get off too lightly, while some defendants say they only plead guilty because of pressure and fear.

Later, how close are we to Pandora, the science of ´┐ŻAvatar´┐Ż? But first, plea bargains. And we'd like to hear from those of you who have had direct experience as defendants, lawyers, prosecutors or judges. Our phone number is 800-989-8255. Email us: talk@npr.org. You can also join the conversation on our Web site. That's at npr.org, click on TALK OF THE NATION.

And we begin with Laurie Levenson, a former federal prosecutor in Los Angeles. She now teaches law at Loyola Law School and joins us from NPR West in Culver City, California. Nice to have you with us today.

Professor LAURIE LEVENSON (Law, Loyola Law School; Former Federal Prosecutor): Nice to be with you, Neal.

CONAN: And we'll go to the other side of the country from our bureau in New York, Barry Scheck, former president of the National Association of Criminal Defense Lawyers, now co-director of the Innocence Project at the Benjamin N. Cardozo School of Law. And nice to have you back on the program, Barry.

Professor BARRY SCHECK (Co-Director, Innocence Project at the Benjamin N. Cardozo School of Law; President, National Association of Criminal Defense Lawyers, Former): Great to be here.

CONAN: And let me to begin with you, Laurie Levenson. Can you give us an illustrative example of a case where you got an indictment, you think somebody is guilty and offer a plea instead of going to trial?

Prof. LEVENSON: Oh, yes. It happens all the time. It happens for everyone like bank robbers who may be charged with 10 bank robberies, but five will do it. They're not going to do much more time if we give them the whole 10 and go to trial, so you make a deal. I have had white-collar cases where on the eve of trial, the law will change, I look around and I say, we better make this deal or we may end up with nothing. Plea bargains sometimes come at the initiative of the defense, where they say, look. We, you know, we think that this would be a fair deal. We can individualize justice if you let us plea guilty.

Nobody wants to spend the time going to trial. They don't want the judges to hear all the information. They don't want to put the victims through it, and neither do we. We end up with a plea bargain.

CONAN: So sometimes, as a prosecutor, you might do it because your case is incredibly strong, and other times because you think a case might be a little weak.

Prof. LEVENSON: Absolutely. It runs the gamut.

CONAN: And Barry Scheck, let me ask you that same question from the other side, from the criminal defense attorney's point of view. Give us an illustrative example of a plea bargain.

Prof. LEVENSON: Well, it's really the contrapositive or the converse of what Laurie was talking about. Very frequently, a defendant will take a look at the evidence. It's overwhelming in some instances, or you think it's going to be very strong. And you can get a better deal then you would if you're convicted after trial, for a whole host of reasons. So you take it. On the other hand, and this is what's really troubling, is that there are lots of defendants who are facing, let's say, the death penalty, who are facing really severe mandatory minimums or really severe sanctions under the federal sentencing guidelines that will plea guilty to crimes that they didn't commit.

CONAN: Or that they think they didn't commit.

Prof. LEVENSON: Well, both.

CONAN: Yeah.

(Soundbite of laughter)

CONAN: Yeah, because they're - in other words, if they're facing 18 counts of - that would put them in jail for a very, very long time, they might say I really don't want to take my chances in front of a jury. Even though I think I'm innocent, I will take the lesser charge and do five to 15, or whatever it is.

Prof. LEVENSON: Right. Or even in cases where they know they're innocent and they'll take a term of the imprisonment rather than face life in prison or even the death penalty.

CONAN: Laurie Levenson?

Prof. LEVENSON: Well, that sometimes happens, admittedly, and there should be protections against that. I would say the number one protection is that you have to have a fair prosecutor who's evaluating the case, not just taking the police's word for it and making sure you don't have an innocent person pleading guilty. And beyond that, the judge has a role, as well. At the guilty plea, the judge is supposed to find out: Is there really a factual basis, or is this based upon coercion? But - you know, I'd be the first one to agree with Barry. Have there been cases where this happened? Absolutely.

There have been very famous cases. The big Rampart Scandal in Los Angeles involved police officers setting up gang members, knowing that they'd end up pleading guilty because they wouldn't have a chance as a gang member going to trial.

CONAN: Because the deck would be stacked against them.

Prof. LEVENSON: Absolutely. So, you know, nobody, I would say, that I worked with wanted that to happen. But there is not a full-proof method because we do have these very strong sentencing laws. And sometimes we have defendants whose lawyers will sort of say I don't see anything better in it for you. But if they had a lawyer like Barry Sheck who would work harder they'd find a way to fight it at trial.

CONAN: And that's another flaw with the system, isn't it, Barry Sheck?

Prof. SCHECK: Oh, yes. But one of the key unaddressed problems, I think, has to do with the issue of exculpatory evidence, because it doesn't matter how good your lawyer is, if there's exculpatory evidence that's in the possession of the police or the prosecutors that's not disclosed to the defense counsel, then the defense counsel can't make an intelligent assessment of the case.

CONAN: Exculpatory evidence is evidence that would make the defendant look good.

Prof. SCHECK: Well...

(Soundbite of laughter)

Prof. SCHECK: No, it's evidence that's favorable to the defendant and could be evidence that tends to show that the defendant didn't commit the crime.

CONAN: Or makes him look good, yeah.

Prof. SCHECK: Well...

(Soundbite of laughter)

CONAN: Makes the case look good, anyway.

Prof. SCHECK: There could be a lot of bad-looking defendants...

(Soundbite of laughter)

CONAN: All right.

Prof. SCHECK: ... that didn't commit the crime. But I think the problem is that under the law now, number one, prosecutors are not obligated to provide exculpatory evidence to grand juries who are considering whether or not to indict a defendant. And number two, there's no real requirement at all that prosecutors disclose exculpatory evidence to defendants prior to the time they decide to plead.

CONAN: Laurie Levenson, is that right? I know in trial, the prosecution's required to turn that over, but not before a plea bargain?

Prof. LEVENSON: Well, ethically, I think prosecutors should. But we do have some Supreme Court law out there that sort of says there's certain exculpatory evidence you must turn over and that impeachment evidence, maybe not. In many different courts around this country, they've gone the extra step and said, look. No playing games. There's too much at stake here. Prosecutors, turn over this information. Barry's right. In the grand jury, there is no federal law that requires the turning over of exculpatory evidence, but there is in the state side. And once again, I think good prosecutors, prosecutors who are trying to do the right thing, will turn it over. They'll turn it over all the way through sentencing.

CONAN: We're talking with former federal prosecutor Laurie Levenson, now a professor at Loyola Law School, and with Barry Scheck, co-director of the Innocence Project at the Benjamin N. Cardozo School of Law, former president of the National Association of Criminal Defense Lawyers about the plea bargain process. We want to hear today from those of you with direct experience: lawyers, judges, defendants. 800-989-8255. Email us: talk@npr.org. And we'll start with Jeff, and Jeff's calling us from Lander in Wyoming.

JEFF (Caller): Hi, everybody. And I'm calling, basically, because I have had experience with this. I do do federal defense work, and essentially, the cases that I have done are drug conspiracies, where a mandatory minimum is at stake. I recently had a case where my client was facing life without parole. He was charged with a drug conspiracy. And we weren't certain - based upon how they prove these drug conspiracy cases, where you're extrapolating the purity of a drug based upon whom the feds had purchased it from - that he was, in fact, certainly guilty of the specific drug crime that he was charged with.

However, he was looking at life without parole because of his one prior instance of being convicted of distribution for two grams of methamphetamine. But the system is so leveraged against a defendant when they're given those mandatory minimums that we had to confront that, and it was a possibility. The only way he can get below that life without parole is two ways. One is called the safety valve, where his prior criminal record was such that he qualified and he had to provide substantial assistance, or he had to provide substantial assistance, meaning rolling over on everybody he knew.

CONAN: Right.

JEFF: So my experience is that not only is it leveraged against them, but they're in fact penalized for going to trial. And in the federal system, they give less of a sentence three levels off for acceptance of responsibility, pleading guilty.

CONAN: And Jeff, in that case, did your client plead guilty?

JEFF: He did, in fact. And, you know, I mean, we were - we thought that they could probably plead - prove their case in the sense that guilt by association. I mean, if you were guilty of some distribution, you were probably guilty of all the distribution in terms of the eyes of a jury. But we weren't, you know, I mean, when you start extrapolating the purity of drugs, which is how the -the federal sentencing guidelines are structured, it's hard to know what a jury is going to think.

CONAN: Yeah. Yeah. But you didn't want to take the risk when it's life without parole.

JEFF: And he didn't want to take the risk either, yeah, because it's, you know, a 35-year-old male looking at life without parole for distributing or (unintelligible).

CONAN: What did he get instead?

JEFF: You know, I think he's going to do about five years.

CONAN: Well, that's a considerable difference. So, anyway, you could see why he would take the deal. Jeff, thanks very much for the call.

JEFF: Thank you.

CONAN: Appreciate it. And, Laurie Levenson, that illustrates another reason why prosecutors may be interested in guilty pleas and in plea bargains and that is to get one defendant to, as he said, roll over on another - provide evidence in more cases.

Prof. LEVENSON: Oh, absolutely. It's the squeeze play. Basically, you come down like a hammer on one defendant and he says, I'm going to plead guilty. I'll take a deal and I'll become a witness for you. I'll go over to your side of the ledger. And prosecutors in this country do that all the time. They do that so that they can bring the bigger cases or get to Mr. Big. It's not a really popular tactic or technique and it has its downsides. But if a defendant is really guilty, it can provide a pretty good deal.

CONAN: And there is yet another circumstance that you hear sometimes and that is from the families of particularly murder victims or people who've been raped or have had terrible crimes committed against them, and the prosecution reaches a plea bargain with a person responsible and they end up doing a lot less time than the victim or the families of the victims think they ought to do.

Prof. LEVENSON: And then the victims are terribly upset. And one can understand why. You know, victims in our criminal justice system don't have a whole lot of control in the system, even when we have these victims' rights initiative. All it means, frankly, are that the prosecutors are supposed to consult with the victims. The victims and their families still don't make the decision what the deal will be.

So there are cases - there's a very famous case called the Green River Valley case where they let the guy off of the death penalty even though they knew he had murdered, I think, up to 50 women because they didn't know where they all were, where they were buried. And when he told them, the deal was he wouldn't get the death penalty. The victims' families, some of them, were very upset. Others were satisfied with the plea deal because, at least, now they knew where their loved one was.

CONAN: We're talking with Laurie Levenson at Loyola Law School and Barry Scheck of the Innocence Project at the Benjamin N. Cardozo School of Law, former president of the National Association of Criminal Defense Attorneys about the process of the plea bargain, which looms large in the American justice system.

And, of course, we want to hear from you. What has your experience been? Defendants, lawyers, judges: 800-989-8255. Email us: talk@npr.org. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

(Soundbite of music)

CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington.

Ideally, anybody charged with a crime in the United States is entitled to his or her day in court. The reality is in the vast majority of cases, the accused does not go to trial. Justice is done by way of a plea bargain, a guilty plea in exchange with a promise of a lighter sentence or reduced charges.

We're looking a little more closely this hour at the plea bargain. We want to hear from those of you who had experience with them - defendants, lawyers, judges: 800-989-8255. Email: talk@npr.org. You can join the conversation on our Web site. That's at npr.org, click on TALK OF THE NATION.

Our guests are Laurie Levenson, former federal prosecutor in Los Angeles, and Barry Scheck, former president of the National Association of Criminal Defense Attorneys, and he now directs the Innocence Project at the Benjamin N. Cardozo School of Law.

Barry Scheck, given those numbers, is there realistically any alternative to the plea bargain system?

Mr. SCHECK: Realistically, I don't think there is any alternative because we don't have the capacity to try the cases where people are charged. And that's a whole other issue of over-criminalization of many laws in this country and overuse of incarceration. That is a much bigger issue. But no, we don't have the capacity to try these cases.

CONAN: Let's go next to Damon(ph). Damon with us from Dixon, Illinois.

DAMON (Caller): Yeah. Hey, how is it going?

CONAN: All right.

DAMON: Well, I was arrested for possession of drug paraphernalia back in July. And everything, you know, everything from there started to go down, and I went to court when my time was due. And they were trying to get me the maximum I could get for my misdemeanor, I could be - I could go to jail for one year. And they offered me a plea agreement. And the plea agreement was just six months of court supervision and a fine. So I - when they - if I would have went to court, there was a chance I could have gone to jail over the criminal misdemeanor, and I didn't want to go jail. I was in school when this is going on and all that, and I just didn't want to take the chance of having my schooling get messed up.

CONAN: Yet, if you plead guilty, you've got a drug misdemeanor on your record.

DAMON: Yup. And I just - I didn't want to deal with having that. And with this, after my fines were paid off and all that, I can go back and have - there's a chance I can have it withdrawn from my record. And once everything is clear it's off - I'm all good. And it was an accident that all went down, and I was put in, you know, the wrong place at the wrong time, and I was just trying to deal with what I could.

CONAN: And so you...

DAMON: And I did not want go to jail.

CONAN: And you took the deal.

DAMON: Yup. And I took the deal. And I'm paying off my fines and I'll be off court supervision in March.

CONAN: So do you think you got a good piece of advice from your lawyer?

DAMON: Yes, I did.

CONAN: All right.

DAMON: It was excellent.

CONAN: Damon, thanks very much for the call.

DAMON: Thank you.

CONAN: Laurie Levenson, his experience suggests that a lot of times this can really work for the client, for the defendant.

Prof. LEVENSON: And I think that's why defense lawyers recommend it. I mean, sometimes they actually get a very good deal, and the deals can change overtime. I mean, oftentimes the best time to get the deal is very early in the process. But sometimes, as they start to look at the evidence, they'll have a different view of it and the deals would change at the time of trial. So it can vary. I mean, frankly, Neal, almost everybody in this country who has faced a vehicle violation is making a deal when they decide they're going to go to traffic school instead of fight it in court. And they do that because they think they'll have a better result.

CONAN: And because the evidence is usually pretty overwhelming.

Prof. LEVENSON: Well, the evidence is, but it's often not tested. And that's the big problem here. As Barry said, there is no way. This system would collapse if we had to take everything to trial and everybody knows it -prosecutors, defense lawyers and the judges.

CONAN: Barry Scheck, are there strategies where if you happen to be wealthy enough to be able to afford great representation, you can just start throwing all these dilatory tactics at the prosecution in hoping that you can get them to offer you a really good deal as opposed to dragging this out forever in court?

Mr. SCHECK: Well, I suppose.

(Soundbite of laughter)

Mr. SCHECK: I mean, I'd be the last to say that, you know, being rich and white doesn't get you tremendous advantages in the criminal justice system as opposed to being poor and a person of color. But I'm not sure that the dilatory tactics are really the big issue. And in fact, I must say that recently there have been some developments in the area of white-collar crime that are really disturbing because these are among the richest defendants that you can get. And there's this very disturbing case that just arose involving what's called Broadcom, where all these people were indicted for supposedly backdating stock options. And they all were saying, well, look, you just don't understand how we did this. This really isn't criminal. But they made a deal with one guy who didn't think he had committed a crime and he pled guilty to avoid harsh penalties, and just didn't have the guts to fight it. And the other executives did.

And finally when the big trial occurred, one of the people who plead guilty and made a deal with the government testified, wound up giving evidence favorable to the defense, and the defense dismissed the case against the witness and (unintelligible) who had pled guilty and everybody else. And that's one of the problems when this - in the whole area of white-collar crime where there's all this ambiguity, but these really serious draconian penalties.

CONAN: Serious draconian penalties and certainly, Laurie Levenson, in federal court, they are - well, they're very serious.

Prof. LEVENSON: Oh, they're very serious and I know that case very well and I agree with Barry. Yeah, there were a lot of abuses in that case by the prosecution. But on the other hand, oftentimes, even in white collar deals, you'll have somebody who made a mistake, and the question is whether you have a fair prosecutor who can tailor the plea. Not a case like Broadcom, where they were putting on the squeeze play, where they thought they knew their case, but they didn't really know it from the witnesses.

And so I think that what you have to take a look at is everything in the system, including the pleas, including who's bringing the charges. The grand jury system where the grand jurors are pretty much controlled by the prosecutors, and I say that as a former prosecutor. You could probably get a grand jury to indict a ham sandwich.

CONAN: Let's go to Brad(ph). Brad's calling us from St. Louis.

BRAD (Caller): Hi.

CONAN: Hi, Brad. You're on the air. Go ahead please.

BRAD: Yeah. I personally - I took a plea bargain. I had a nasty divorce and I did a parental-abduction thing where I took off with my child. And I thought at the time I was doing the right thing. And my lawyer, once I turned everything back in and was going to court, my lawyer said, you know, I'm looking at 15 years for parental abduction. He could get me a probation, you know, guaranteed five years probation and just, you know, if I said I'll take the plea bargain. And I wanted to state my case. And I truly felt I was right and justified in what I did and I still do today, but I took the plea bargain because I was afraid to go to jail, you know? I didn't want to - it was just the easy way out at that point, I guess.

CONAN: There's a moment where you have to stand in front of the judge and say, yes, I did this. I am guilty.

BRAD: I actually didn't have to do that. I stood in front of the judge and my lawyer spoke for me. They didn't want me to say anything because they were afraid I would say something to stick my foot in my mouth.

(Soundbite of laughter)

CONAN: Barry Scheck, is that a knowing laugh there?

Mr. SCHECK: Yes. A lot of deals fall through in what they call the allocution. When the judge asks are you pleading guilty for - because you're guilty and for no other reason and then, you know, you'll see both sides in consternation because, you know, the defendant doesn't say what everybody expects him or her to say.

CONAN: The part of the script, yeah.

Mr. SCHECK: Yes.

CONAN: Yeah. Brad, if you - if the judge had asked you that, what would you have said?

BRAD: I think I would've told him that I, you know, felt that what I did was justified and that, you know, that the system is flawed. In my case, they just didn't work with me and I felt I had no alternative but to do what I did. And I don't think I would've showed any remorse or, you know, anything like that, like I would've gotten myself in trouble. So it's only best I just listened to my lawyer and did what I was told.

CONAN: Your lawyer probably stapled your lips shut.

(Soundbite of laughter)

BRAD: Not quite, but close.

CONAN: Laurie Levenson, what would the judge have done - been forced to do in such a circumstance?

Prof. LEVENSON: Well, the judge should've said I can't take your plea, because the judges are not supposed to be taking pleas from people who are not guilty or professing to be not guilty. But that's where some of the rub is. I mean, judges want to move their dockets as well. So everybody plays the game. They will let through somebody who pleads but is hesitant about the plea. They certainly aren't requiring people to show remorse. They'd let the lawyers speak for the client. Because if they don't, then you're going to end up with this written record that says I'm pleading guilty because I feel like I have no choice. And that's not why you're supposed to be pleading guilty. You're supposed to plead guilty because you did it, and also because you think you're getting a better deal.

CONAN: Hmm. Thanks very much, Brad. And have you managed to get all this behind you now?

BRAD: Oh, no. It was all about 15 years ago. And I actually just - yeah, it's basically behind me. I'm over it.

CONAN: All right. Thanks very much, Brad.

BRAD: All right.

CONAN: Interesting. Barry Scheck, interestingly - and again, we're at a terrible disadvantage since most of our legal knowledge is derived from, you know, watching television programs, but nevertheless, when that earlier caller said that he was up for a misdemeanor and if he accepted the agreement, that eventually, after he paid off his fines, this would all be expunged off his record. Is that really true? Is it...

Mr. SCHECK: Yes.

CONAN: Is it gone forever? That will never come back to haunt him?

Mr. SCHECK: Well, in theory it could come back to haunt him because records in theory can be expunged, but then, you know, resurrected or discovered and especially in, you know, this Internet age. No, but frankly, what he describes happens every day, in great volume, in courtrooms all across the country. And if that remedy weren't available, the system might collapse of its own weight.

But, you know, one of the things that really I think people have to think more about is that we need a better system for early evaluation of cases and we should just accept the fact that so many of them are really going to be disposed of by plea bargaining. And if we had earlier discovery available to both sides and a different form of talking about resolving these cases in a way where we have good information between all the parties and maybe charging, you know, in - certain kinds of infractions or crimes that perhaps shouldn't even be crimes.

National Association of Criminal Defense Lawyers just put out some very good publications about creating new kinds of courts where matters can be resolved without even resorting to the criminal sanction.

CONAN: Let's go next to Dylan(ph), Dylan calling us from Madison.

DYLAN (Caller): That's actually a good lead in to my point. I wanted to draw the caller's attention to the fact that all this plea bargaining gives prosecutors an incentive and also resources to overcharge those minor crimes that perhaps shouldn't have been charged to begin with, or also multiple counts in a particular case, knowing that the case will be plea bargained.

CONAN: Is that your story, Dylan?

DYLAN: No. I do have a story specifically attached to latter example. It is - I represented a criminal defendant who was charged with a - in a minor domestic incident with battering a live-in girlfriend. He was intoxicated at the time and he was released on bail. One of the conditions of bail was that he not consume any alcohol.

He was a chronic alcoholic and he continued to drink and continued to get caught drinking. He didn't commit any additional crimes other than that, but he accumulated something like 18 bail-jumping charges. He maintained he was innocent in the original domestic incident, but because of the leverage that the 18 bail-jumping charges which were unassailable - there was no doubt he had been drinking - because of the leverage of those charges, he ended up pleading in this domestic incident.

He may never have actually committed a crime other than to drink alcohol, but he ended up being put on probation for three years because he was forced to do so based on this leverage that the state was able to accumulate over him.

I think that if the state - if we didn't have plea bargaining, the state wouldn't have really have the resources or the incentive to charge all these charges and we could have really looked at the merits of what he did more carefully.

CONAN: Laurie Levenson?

Prof. LEVENSON: Oh, didn't he give the state the leverage by doing all the bail jumping? I mean, that's part of the problem there. You know, it's true, prosecutors will charge to the max knowing that there's going to be a bargaining process, kind of like when you - and I'm sorry to make the analogy -buy a car. The used car salesman is going to cite a very high price. The person coming in is coming in with a lower price. And ultimately, somehow justice will be found.

DYLAN: But I would point it out that in this case, justice wasn't necessarily found. I mean, yes, the man was drinking. Yes, he was a chronic alcoholic, but there a lot of people out there who are chronic alcoholics who don't end up on probation because of it.

CONAN: What I would suggest...

DYLAN: We don't know the merits of whether or not he actually committed a battery.

CONAN: Barry Scheck?

Mr. SCHECK: Yeah. I would suggest, you know, there's a prosecutor in Milwaukee named John Chisholm, who is doing a terrific job of working with the Defense Bar and social service agencies to take a case like that. And they might very well be able to say, well, the real problem here is that this guy has a drinking problem, and let's get him some help and then let's sort out the domestic abuse problem as to whether it happened or not in another way.

And he has done a fantastic job of developing this kind of community prosecution model, where he really has the trust of the defense bar because all the information is disclosed right away and people try to evaluate the situation and solve it as a problem, rather than, you know, make it a game where, you know, create the highest charge and we'll create some conditions which only make the problem worse.

And I really do think we have to start rethinking some of these models of how we run the criminal justice system, so we help people rather than make their situations worse.

CONAN: Dylan, thanks very much for the call. We're talking about the plea bargaining system with Barry Scheck and Laurie Levenson. You're listening to TALK OF THE NATION from NPR News. And Ed(ph) has been patient on the line, calling from Belago in California.

ED (Caller): Yeah. Good to talk to you.

CONAN: Go ahead, please.

ED: I'm a criminal defense attorney, but most of my practice has to do with juveniles. And this is a much less visible system that a lot of people are unaware of. The difficult thing in California is that juveniles who are in custody don't get any rights to bail out. And when they are offered a deal that is going to get them to their sentencing hearing or what they call a dispositional hearing, sooner, they're very likely to take it just to have the possibility of getting out of juvenile hall more quickly.

And I can tell you case after case where juveniles have told me, I didn't do it and I tell them, I don't see strong evidence against you and I think we have a good chance of winning this at trial, and they say, well, when will I get out? And I say, well, your trial is guaranteed within 30 days, which is really quick, that's the way they try to balance it out. But, I also am compelled to tell them that there's an offer on the table. And when I tell them what that offer is, and if that gets them out sooner, they really don't care to hear anything else.

I can really try to advise them of the consequences of having this on their record, and sometimes they are serious felonies that are going to stick with them when they become adults, but with juveniles, they just want to go home and they will take all sorts of really bad deals (unintelligible) no other way out of custody.

CONAN: Are their parents involved in the decision?

ED: No. I mean, their parents can speak with them, but the parents don't get to have a vote. They don't have a voice except their own consultation with their child. They can't veto the plea.

CONAN: Hmm. Ed, thank you. Now, I didn't know that. That's an interesting conundrum. Appreciate the phone call. And we just have a minute or so left. But, Laurie Levenson, as you look at the system as a former prosecutor, clearly, this is the lubrication of the wheels of justice. As we said, it would all grind to a halt if everybody had to go to trial. Nevertheless, if there was one reform you could suggest, what might it be?

Prof. LEVENSON: I actually think Barry is on to something. I think that not all cases are the same. And for some kinds of cases, we can go to another model, not the adversarial model where you have a prosecutor and defense lawyer, but where you have sort of an approach, like the drug courts, people trying to figure out the right solution. Now that's not going to take care of all types of cases. In violent crimes and other types of crimes, I think you're going to have, and the defense will want the adversarial process. And if they have that, they're going to have plea bargaining. But I think that we have to stop looking at the criminal justice system like one size, one system fits all.

RUDIN: Laurie Levenson, thanks very much for your time today. Appreciate it.

Prof. LEVENSON: My pleasure.

CONAN: Laurie Levenson with us from the studios at NPR West in Culver City, California. She's a professor at Loyola Law School, former federal prosecutor in Los Angeles. Barry Scheck joined us from our bureau in New York. Barry, nice to have you on the program again.

Mr. SCHECK: Great to be here.

CONAN: Barry Scheck is co-director of the Innocence Project at the Benjamin N. Cardozo School of Law, former president of the National Association of Criminal Defense Attorneys.

Coming up next, stay with us. We're going to be talking about the science of "Avatar," the movie that continues to rake in money at the box office. We want to know how close are we to the technology we see in that film. So when can I host this program from Pandora? Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

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