Plea bargaining comes under a judicious eye

Regular television viewers can be excused for thinking that criminal justice in the United States usually involves a jury and a trial.

That’s how it happens on “Law & Order” and most of the other shows involving the legal system, because the stylized courtroom confrontation can be made into something compelling.

Not so fascinating is the plea bargain, usually involving a guilty plea in exchange for lesser charges for the defendant and a more efficient criminal-justice system for the state. Yet that is how 95 percent of felony convictions in the U.S. are reached, according to a new “Frontline” documentary.

In the 90-minute “The Plea,” the renowned documentarian Ofra Bikel takes a hard look at the hard bargaining system that has evolved. It seems fair on the surface — each side gets something valuable — but when you stick pressured or incompetent defense attorneys, naive defendants, coercive judges and prosecutors and the other components of human nature into the equation, problems can occur.

Bikel’s past films for “Frontline” have helped innocent men get off Death Row and helped stop the 1990s mass hysteria involving “recovered-memory” prosecutions of alleged mass child sexual abuse.

Although “The Plea” will air Thursday on PBS stations in much of the country, Chicago’s WTTW-Ch. 11 is postponing the premiere until 2 a.m. Sunday (i.e., overnight Saturday) because it is in pledge programming. The channel also will show it at 10 p.m. next Thursday.

In “The Plea,” the filmmaker follows her usual practice of using individual cases to highlight what she perceives as wrongs in the system.

The cases here, though, are much less black and white than demonstrating that someone was not likely a killer, and the result is a film that, rather than inspiring outrage, forces consideration of a whole range of ambiguities.

Subject to manipulation

With her series of carefully laid-out narratives, Bikel effectively shows that plea bargains are much more complicated, and subject to manipulation, than they seem on the surface. Most of the time, in the view of her film, the manipulation is not in favor of the defendant.

In Houston, two single mothers are fingered by a confidential informant and rounded up in a massive drug arrest. The informant is proven unreliable and the charges against most are dropped, but the women, looking to return to their kids quickly, have already accepted a bargain: Plead guilty, get probation.

One of the women ends up homeless, unable to meet the system’s demands that she help finance her probation (a common practice that one of Bikel’s experts compares to the state running a “high-interest loan” racket). Her lawyer, interviewed here, has no record or recollection of having represented her. The other woman is more angered by the stain on her reputation.

Applying the pressure

In Brooklyn, a man charged with murder after a fight outside a bowling alley, one where he insists he left the victim very much alive, is pressured into accepting a plea bargain by a judge who gives the family a 15-minute deadline, saying that if he doesn’t take the deal and loses at trial, he will get the maximum murder sentence. The man does not know the evidence against him.

And there is, as befits Bikel’s tradition, a Texas death-penalty case, this one involving a man whose original conviction was overturned on a technicality and, at retrial, after serving 22 years, has to decide whether to take the offered no-contest plea and be freed or go to trial and risk returning to jail.

What we learn from this — and to be sure, Bikel does not bend over backward to present prosecutors’ view of plea bargains — is summed up in a quote from one of the many legal scholars she interviews, University of Chicago law professor Albert Alschuler:

“It’s a system that’s designed to keep the truth from coming out. Plea-bargaining has nothing to do with justice. It has to do with convenience, expediency, making the life of prosecutors and defense attorneys easier and more profitable. . . . It’s designed to avoid hearing the defendant’s story.”

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