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The Habeas Citebook: Prosecutorial Misconduct - Header
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Prosecutor’s Sentencing Message to Defendant: Insist on Trial, Pay with Your Liberty

by David M. Reutter

For persons inexperienced with the criminal justice system, it seems incomprehensible that an innocent person would plead guilty. The threat of a trial penalty, however, pushes many innocents to do just that. The cases of Pamela Moses and Levonta Barker illustrate how prosecutors abuse their discretion to scare defendants with an extended loss of liberty if they choose to exercise their constitutional right to a jury trial.

Due to a 2015 conviction, Moses lost her right to vote. In September 2019, she requested the Tennessee Department of Corrections approve a certificate to restore her right to vote. Her probation officer signed off on the certificate and verified that Moses had completed her probation.

The probation officer, however, was wrong. A judge had recently ruled that Moses’ probation term would not end until April 2022. The State contended Moses was well aware of that fact before she turned in the certificate. As a result, Moses was charged with illegally registering to vote while on probation.

Like virtually every other criminal case, Moses was offered a plea bargain. “I gave her a chance to plead to a misdemeanor with no prison time,” said Shelby County District Attorney Amy Weirich. “She requested jury trial instead. She set this unfortunate result in motion, and a jury of her peers heard the evidence and convicted her.”

The “unfortunate result” for Moses: A sentence of six years and one day in prison. On her MSNBC show, Rachael Maddow contrasted the result for Moses with that of four other men who used dead relatives’ identities to vote for Donald Trump. Three of them received probation, and the fourth got four days in jail.

Weirich responded to that segment by stating Moses had the opportunity to avoid prison. Yet, she chose a trial. In other words, if you exercise your right to a jury trial and lose, you will pay with your liberty.

“What’s stunning to me is that there is just no recognition by people inside the criminal justice system that sending someone to prison for six years for exercising their constitutional right isn’t equally problematic and disturbing,” said Bryne Hessick, a law professor at UNC Chapel Hill and author of Punishment Without Trial: Why Plea Bargaining Is a Bad Deal.

The trial penalty is a reality in a system where 98.1% of federal cases and about 95% of state cases are resolved via a plea bargain. Prosecutors use the threat of that penalty if a defendant insists on a trial, or as Barker found out, to even request to see the evidence against him.

Barker was charged with aggravated assault and kidnapping. He was offered a 7.5-year plea agreement. The Maricopa County Attorney’s Office threatened him with a “substantially harsher” punishment if he requested to even see the evidence against him.

Turns out, there was no evidence against Barker. As his lawyer pointed out, the police reports showed Barker was wearing a different outfit than the one the perpetrator was seen in—something the prosecution failed to verify. After spending a month in jail, Barker was released.

Forcing innocents to plead guilty is “utterly typical and common,” said Ken White, a partner at Brown, White, and Osborn, LLP. The linchpin behind it: The “black box” of prosecutorial discretion that gains the power of intimidation by using the trial penalty to make defendants fear losing their liberty if they exercise their constitutional right to a jury trial.  


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