Monday, June 14, 2010

My Strange Guilty Plea

By Mike Dorf

A few weeks ago, I received a speeding ticket for allegedly driving 53 mph in a 35 mph zone.  The alleged infraction occurred on a highway on which the regular speed limit is 55 mph but is punctuated by periodic "speed zones."  According to the state trooper who pulled me over, I was in one of these speed zones when he stopped me.  I wasn't so sure I was traveling nearly as fast as he said, or thought perhaps he had clocked me on his radar as I was beginning to decelerate from around 55 to around 35 as I entered the speed zone.  But he gave me the ticket anyway.

On the suggestion of a colleague, I contacted the D.A. in the municipality responsible for prosecuting these cases.  She sent me a form affidavit on which I then told the above story, attached a copy of my clean driving record, and asked for a lesser charge.  About a week later I received a plea offer in the mail.  Instead of charging me with "speeding in zone (10-20 mph above limit)," a violation that typically carries a substantial fine and 4 points, I was offered the charge of "disregarding a traffic device," a charge that typically carries a smaller fine and fewer points.  Some research on the web confirmed that this was considered a good deal and the best that I could reasonably hope for under the circumstances.  I took the plea.

Here I want to note the peculiarity of this particular reduction in charge.  I was not offered a plea of speeding in zone (<10 mph over limit) which is a lesser included offense of the original charge.  For me, that was a good thing, because apparently the penalty for "disregarding a traffic device" is less even than for speeding by <10 mph above the limit.  But the charge to which I pled guilty was not something I did.  Nobody--not the state trooper, not I, not the district attorney, and not the judge--thought that I really disregarded a traffic device.  There was no traffic device anywhere in the vicinity of the alleged offense.  And so this raised for me a number of questions.

1) Was I committing perjury by pleading guilty to disregarding a traffic device?  Was the D.A. suborning perjury?  I think the answer is no.  I read the form carefully and I was not swearing, nor was I signing under penalty of perjury.  Indeed, unlike in a plea in open court, there was no place for me to recite any facts at all.  I simply pled guilty, acknowledging that I was waiving my rights to trial, appeal, etc.

2) But I'm not confident that the same thing doesn't sometimes occur in open court.  There would be something very odd about a judge accepting a plea from someone like me if the defendant were required to say that he in fact disregarded a traffic device.

3) I wonder about the collateral consequences.  Suppose that two years from now I'm charged with running a red light and I take the stand and say "I've never run a red light."  Can the prosecution impeach me with my "disregard of a traffic device" conviction?  Fairness would require me to be able to then say that in fact it was a speeding ticket that led to the plea.  So should the prosecution not be permitted to bring up my prior in the first place?  And doesn't this further illustrate the oddness of this deal?

4) What are the limits on this sort of arrangement?  Could the D.A. have offered me the opportunity to plead to a wholly unrelated offense, like busking without a license or smoking in a public building, if one of those offenses happened to carry the right level of compromise penalty?  That seems crazy, but then is it any crazier than the actual deal by which I'm charged for an offense that no one thinks I committed?  Can there really be no limit here?  Suppose that the D.A. offers to let me off the hook for allegedly driving 18 mph over the speed limit if my sister pleads guilty to jaywalking (an offense that no one believes she committed).

5) Assuming there are limits on the unrelatedness of a charge for which a plea can be offered, what is their nature?  Is it simply a matter of judicial integrity, such that a judge cannot accept a plea for which there isn't the remotest factual basis?  Is it a matter of due process?  And would anyone have standing to complain, given that you can always just reject the proposed deal?

I welcome trenchant analysis in the comments.


Emily & Matthew said...

Maybe the sign posting the lower speed is a "traffic device," and by failing to decelerate appropriately, you disregarded it.

-Matthew Dunne

Carl T. Bogus said...

The law makes a serious mistake whenever it makes lying the "right" thing to do. (For these purposes, I define "right" as what knowledgeable people of good will would consider practical and moral.) Lamentably, the law does this all too often, not only with plea deals but with evidentiary rules that suborn perjury from otherwise honest and good people, and in other situations as well. Making lying the right thing to do turns the law into a game, diminishes respect for the administration of justice, and can't help but lead some participants in the system down slippery slopes of dishonesty. There is nothing wrong with what you did, Mike, but there is a serious flaw in the system that pressured you into doing it.

Sam Rickless said...

I agree with the first comment. Indeed, if you were traveling at 53mph in a 35mph zone that was signposted and visible, then you disregarded a traffic device. You simply pleaded to a lesser offense that the police actually think you committed.

My sense is that this happens all the time. Police and prosecutors use their discretion constantly to decide what to charge people with. If I make an illegal left turn and one of my brake lights is not working, then I may get charged with the first infraction but not the second if I treat the police officer who stops me with the appropriate level of respect. But if I give the officer a hard time, then I am likely to be charged with both.

At the same time, you are completely right that it would be crazy (for all the reasons you give) for a system to give you a choice between pleading guilty to one charge or pleading guilty to a lesser charge regarding an offense that no-one thinks you committed.

michael a. livingston said...

I had essentially the same experience--in a town near Ithaca, no less--and did much the same that you did. But here's the game: once you plead to the lesser charge, they charge you essentially the same, outrageous fine they were going to charge you anyway, except that the collateral consequences (insurance, points, etc.) are less serious. Put more directly, the whole thing is nothing more than an old-fashioned speed trap, with the added trick of trading away what they don't care about (your driving record) for what they do care about (getting their hands on your money). It's a wholly disingenuous procedure, and I suspect that if challenged, it might be overturned: for example, I was basically told by the judge's secretary how to plead, which has to violate something on the statute books somewhere. But they're relying on the fact that no one is going to bother to challenge them, and they;re probably right about that.

Bob Hockett said...

Well, Mike, it looks as though you, Michael and I have all been lured into the same trap in recent months. I had this happen near Binghamton en route back from New Haven this past December, in a rental car that 'felt' to be moving more slowly than it was, in a 'slower traffic' zone that extended rather longer than I'd expected. (I figured I must simply have missed the resumption of the normal limit.) It was my first-ever speeding ticket. In deliberating over what to do in response to the ticket, I (probably stupidly) felt worried about what you describe here, and so simply explained what had happened, documented my clean driving record, and ultimately paid the hefty fine -- or rather, fines. It is striking that both the municipality and the state impose hefty fines. Then you here the latest on the state's budgetary woes and say, 'ah.'

Michael C. Dorf said...

The possibility of sign as device had occurred to me, but the traffic code appears to use the term "device" to mean something other than a roadsign.

Carl T. Bogus said...

It turns out that Matthew Dunne and Sam Rickless are right. NY statutes define "traffic devices" as "[a]ll SIGNS, signals, markings, and devices...erected by
authority of a public body or official having jurisdiction for the purpose of regulating, warning or guiding traffic." (Sec. 153 of NY vehicle and Traffic law; emphasis added.) So leaving aside the issue of asking a citizen to plead to something he thinks he didn't do, there's no moral dilemma or legal flaw in this instance. Of course, one probably can't blame the prosecutor and judge for not taking the time to ensure that the Ivy League law professor - representing himself, and for whom they are cutting a break - understands the fine points of traffic law.

Jamison Colburn said...

I had the same thing happen to me on the Mass Turnpike years ago -- and I deduced, when the Trooper himself offered and then did change the "charge" (with the exact same fine as the speeding) -- pretty much the same quid and quo Sam, Bob, Michael, and Carl did. Can I be the voice of craven irresponsibility here, though, and suggest that this is just a local version of the exit, voice, & loyalty game? Local and state governments have very few unimpeded revenue streams any longer; these are about the most effective ever evolved. And they're probably less oily than revenue sharing for outer continental shelf mineral "leases."

Keith Ramsay said...

I have no direct knowledge of this kind of thing. The local newspaper has described cases in which quite unrelated charges have been plea-bargained down to unauthorized crossing of agricultural land. My impression is that little if any relationship necessarily exists between the two charges.

Roger Dennis said...

Mike: as a former NJ law prof I thought you might find the following link instructive:

Michael C. Dorf said...

Thanks Roger (and everyone else). Based on conversations, emails, and comments, I've learned that seemingly relatively minor infractions--often not even infractions at all--can have serious consequences and that here, as elsewhere, knowledge of the law can make a huge difference.

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