Boxed in, Even Before Prison

As the rolls of exonerated prisoners grow, plea bargaining by innocent defendants has found its way into the news.

Accepting a plea bargain can be especially tempting in the child-abuse arena, where an innocent parent is offered not only the chance to avoid an expensive trial and the risk of a long sentence but also the added hope that “taking responsibility” for a child’s injuries will keep the children out of foster care and the other parent out of prison.

After her husband accepted a plea bargain in the 2007 death of their daughter, Tonya Marrhoubi Sadowsky gathered data about case resolutions at her local courthouse, first in 2010 and again in 2012. As she reported on her blog this summer, the vast majority of criminal cases in her jurisdiction are being settled with pleas, almost none with trials. As it turns out, Tonya had observed a national trend, described in fascinating detail in The Unexonerated: Factually Innocent Defendants Who Plead Guilty by law professor John Blume of Cornell and Rebecca K. Helm. (That link is to the downloadable article, well worth reading; thanks to the Wrongful Convictions Blog for this literature tip.)

The Cases

The May exoneration of football player Brian Banks kicked off this season’s coverage of innocent defendants who plea bargain.  In the early 2000s, faced with decades or life in prison if convicted of the rape and kidnapping of a childhood friend, Banks entered a plea agreement. He had served his time in prison but was still on parole when the alleged victim recanted. The California Innocence Project took up his case, and this fall Banks is back on the field, as reported last week on CBS in Los Angeles. ABC News posted this moving coverage of the exoneration proceedings in the spring.

The West Memphis Three in 1993

Then the “West Memphis Three” made another run through the headlines this summer with the release of a book by Damien Echols, one of three young men in Arkansas convicted of a grisly triple murder in 1993. After 18 years of protesting their innocence from prison, the three were exonerated by DNA tests in 2011. Instead of simply releasing the men, the state negotiated an Alford plea, which freed them immediately but only if they all pled guilty to a lesser charge. The New York Times coverage in August explores their legal conundrum and rocky first year out. A dispatch from the book tour on CAPITAL focuses on Echols, who spent his prison time isolated in a small cell on death row because prosecutors had perceived him as the ringleader in the supposed “cult” killings.

Myself, I’ve been frustrated because plea bargaining by innocent defendants has shut off access to the evidence in a number of cases, and left prosecutors with the impression that the defendants were in fact guilty. I echo the sentiment of defense attorney Zack Bravos, who says he can’t fault anyone who makes the rational decision to take a plea, but it adds to the perceived evidence in favor of classic shaken baby syndrome theory. If you haven’t yet read about my rubber-band case, for example, please see this story.

Drayton Witt and his wife
Courtesy Arizona Justice Project

Now the news coverage around the Drayton Witt reversal in Arizona has brought to light another plea bargain by an innocent parent, Armando Castillo, who met Witt in prison. In two insightful articles in the Arizona Republic, reporter Richard Ruelas first explores Witt’s conviction for the presumed shaking death of his son and then follows up with Castillo’s story (Listening to the medical testimony, Castillo told Ruelas, “I would have found myself guilty.”)

Back to Tonya, who alerted me earlier this summer to the prevalence of plea bargaining:  In a 2008 hearing she was not allowed to attend, her husband pled guilty to murder, felonious assault, and endangering a child. Although his reasons don’t appear in the court record, Tonya once told me that part of his inducement was the prosecution’s promise to “not go after Tonya” if he accepted the deal. Indeed, she wasn’t charged, but even through her relief she thought he’d made a mistake.

On the day of their daughter’s injury, Tonya’s husband called her at work to say he had dropped the baby and she should meet him at the hospital; he had already called 911. Her boss gave her a ride to the hospital, but her husband never made it:  He was taken to the police station instead. She hasn’t seen him out of custody since.

At the plea hearing, the judge was careful to make sure that Tonya’s husband Elwood Sadowsky was entering the plea without coercion. The opinion denying his appeal summarizes:

Upon questioning by the trial judge, Sadowsky confirmed that he had no questions about the plea. Sadowsky further stated that although he was taking several medications, he was able to think clearly and was of “sound mind and reason.”

Sadowsky told the judge, “I’m not high. I’m not drunk, sir. I’m just very grieved.”

This arena is tragic.