In an earlier post (11-4-2006), I told the story of James Ochoa, the Orange County man who was excluded by DNA evidence in a carjacking case, yet chose to plead guilty after prosecutors continued to press charges against him at trial. At the time of trial, prosecutors knew that DNA found on the sweatband of a cap found in the stolen car was not Ochoa's. They also knew that his fingerprints did not match those found on the car. But two eyewitnesses identified him so they took the case to trial. Three days into the trial, Ochoa was offered a plea deal. Plead guilty and you'll get out in two years. The deal was too tempting, especially given that the judge told Ochoa, who had several priors, that if he was convicted, he would go away for life. Over his attorney's advice, Ochoa pled guilty. The twenty year old spent 10 months in prison when the very same DNA that prosecutors ignored linked to another man, Jaymes T. McCollum, was in L.A. County jail on carjacking charge.
Once released, Ochoa sought compensation for the time he served in prison under a California statute. Under the law, signed by then Gov. Gray Davis a few years ago, incarcerated people who later were proved innocent are entitled to receive compensation at the rate of $100 a day, which in Ochoa's case would come to about $30,000. But as L.A. Times Columnist Dana Parsons writes in a recent column -- http://www.latimes.com/news/columnists/la-me-parsons30jun30,1,1996254.column?coll=la-news-columns -- the State Attorney General is disputing Ochoa's claim for compensation. Never mind that the county prosecutors took a man who was excluded by DNA to trial. Never mind that the police and prosecutors stopped investigating the case even after the DNA came back. Never mind that it was these decisions by prosecutors that placed Ochoa in a position where he would have to decide whether to roll the dice for an acquittal or risk going away for life. Deputy Atty. Gen. Catherine Chatman wrote that the A.G.'s office "does not intend to present evidence in opposition to Mr. Ochoa's claim." But in the body of her report, Chatman discusses the two key elements that a person "must prove" under state law to qualify for compensation. The first is innocence; the second is that the person didn't do anything to "contribute to the bringing about of his arrest or conviction…. " Ochoa is innocent, Chatman writes, but by pleading guilty, a decision she says was clearly voluntary, he contributed to his own arrest and conviction. According to Chatman, "Mr. Ochoa's fear of a lengthy prison term and the mistaken but positive eyewitness identification appear to have been the truly motivating factors" behind his decision.
To Ochoa's new attorney, Joshua Stock, there is more to Ochoa's decision than meets the eye. He has responded by attaching a sworn affidavit from Ochoa's trial attorney, claiming that the trial judge told Ochoa that he'd give him the maximum sentence if he were convicted. The remarks were made in court but the judge "went off the record" when he said it. As Stock realizes, however, such off the record conversations are not uncommon and would not convert Ochoa's plea into an involuntary plea. He's worried that the hearing officer now has the legal cover to deny Ochoa's claim.
Parsons's writing about the case underscores the absurdity of the way in which courts have defined what is and is not a voluntary plea (or a voluntary confession):
"If the purpose of the law is to compensate the wrongly convicted, and if a man who knows he's innocent pleads guilty because he fears getting a maximum sentence based on false testimony and a judge's warning, how is that a voluntary plea? Literally, I get it. Ochoa wasn't water-boarded. But in the world of common sense? Why should a plea, made under the threat of a life sentence, be held against someone who is factually innocent?"
To make sure he wasn't reading the situation wrong, Parsons sought a second opinion from Scott Baugh, the head of the Orange County Republican Party and the former Huntington Beach assemblyman who wrote the compensation law that Davis signed. To Baugh, the AG's position makes no sense: "I find it outrageous that you can force someone into a Hobson's choice of 25 years to life or pleading to a crime he didn't commit and spending two years in prison, and call it a voluntary decision. Even if the judge said nothing, he's facing 25 years to life or a two-year plea bargain. "That's not a voluntary decision, if he's an innocent man. It's not the spirit of the statute, at all, that I carried."
Both Baugh and Parsons agree that some innocent false confessors should not be entitled to compensation. "Hypothetically," Baugh says, "if some guy who was mouthing off and he says he did something he didn't do and later was proved innocent, he contributed to his own incarceration. In those cases, law enforcement has got to do what it's got to do."
The problem with Baugh's approach is how can one ever really know whether some guy was just mouthing off or whether police officers, during an interrogation, pressured the suspect into falsely confessing, giving the suspect the same or a similar choice to that facing Ochoa -- confess and you'll get leniency, maintain your innocence and you will get hammered. The truth is that in the absence of a recording of the entire interrogation, courts (and hearing officers) are often in no position to decide whether a confession is "voluntary or involuntary." In almost every DNA exoneration involving a false confession, trial courts have determined that the confessions were voluntary (believing officers' claims over suspects claims of coercion), decisions which are frequently upheld on appeal. Except in the those rare cases involving truly voluntary confessions -- like that of John Mark Karr and other mentally ill persons who confess out of a need for attention -- or where a suspect confesses for reasons that are unrelated and external to police coercion (like to protect another gang member), the fact that a confession or guilty plea is legally "voluntary" should not be determinative of whether compensation is due.
(The right to compensation is not the only right that can be forfeited by a "voluntary" confession or guillty plea. Courts have construed state post-conviction DNA statutes to deny inmates who have pleaded guilty or confessed the right to seek DNA testing.)