Bruce Lisker 1988 Bruce Lisker 2009 (Robert Durrell LA TIMES)
If it is hard for people to believe that someone would confess to a crime he or she did not commit, it is even harder for people to grasp why anyone would plead guilty in open court to a crime he or she did not commit. By pleading guilty, defendants not only forfeit the right to prove their innocence but they often foreclose any chance of prevailing on appeal or in post-conviction proceedings (and, in several states, are excluded from seeking DNA testing). False Guilty Pleas are the dirty little secret of the criminal justice system. We don't know how often this occurs, but in light of the increasing power given to prosecutors and the increasing severity of sentences, there is every reason to think that false guilty pleas are not uncommon. Imagine that you are a juvenile (under the age of 18) charged with a serious crime, you live in a state in which the prosecutor has broad power in deciding whether to prosecute you as a juvenile or as an adult (perhaps a state in which the prosecutor can "direct file" your case in adult court.) If you are convicted as a juvenile, the harshest consequence is a sentence in a juvenile prison until your 21st birthday (or perhaps your 25th), but if you are sentenced as an adult, you could face anywhere from 20 years in prison to life without parole. You know that you are innocent, but the case against you appears to be strong -- perhaps you made a false confession or have been fingered by a jailhouse snitch or a shaky eyewitness -- and your lawyer tells you that you will probably be convicted. What do you do? The incentive to plead guilty is simply too powerful --even if you are innocent -- in such cases. Add to the equation that you are an adolescent, that you are prone to making risky decisions which are focused on the short-term and not the long term consequences, that you lack maturity and judgment, and that your lawyers and parents are telling you to take the deal, and you can see why it happens.
Two recent cases involving juveniles who appear to have been wrongfully convicted illustrate the point. The first hails from Virginia, where a 15 year old boy admitted to rape and burglary, in exchange for a juvenile sentence. The reason, he admitted to rape, was that the prosecutor was preparing to try the boy as an adult, a move which could have led to a 25 year sentence. As Pamela Gould, of the Fredericksburg, Va. Free Lance Star writes, the case took an unusual turn http://fredericksburg.com/News/FLS/2009/022009/02052009/442642/index_html A few months after the guilty plea, the victim's mother hired an attorney to help right a wrong --her daughter recanted her claim of rape, stating that the two had engaged in sexual activity consensually and that they had done so on a previous occasion: "[The boy] didn't rely rape me in fact we did it befor. [He] was a friend of mine befor this even happend. Me and [the boy] where good friends, but now it just seems that I lied about [him]. Now I will never forgive myself. [He] didn't realy come in by himself, I let him in." The boy has been released but his conviction still stands. Lawyers from the Virginia Innocence Project and JustChildrencq, a program of the Virginia Legal Aid Society are seeking to vacate the conviction. If the conviction stands, the boy will remain on the state's sex offender registry.
Bruce Lisker's case is even more tragic. In 1988, Lisker was wrongfully convicted of killing his mother, a crime which took place in 1983 when Lisker was only 17. Five days into his first trial, the judge made known that he would sentence Lisker to a juvenile sentence until his 25th birthday in exchange for a plea. Here's how Scott Glover and Matt Tait described the scenario in their brilliant investigative series on Lisker's case in the LA Times:
"Mulcahy (Lisker's attorney) ordered him to do it (take the plea). Then Bob Johnson, a lawyer and family friend spoke to him. "He got right in my face and said I had to take the deal. 'They are going to convict you of first degree murder if you don't, Lisker recalled."
http://articles.latimes.com/2005/may/22/local/me-lisker22
Lisker took the deal. When questioned by psychologists as part of a pre-sentence investigation, Lisker admitted killing his mother, going so far as to blame Satan: "I fell to what he wanted me to do.... It was so stupid." The psychologists saw through Lisker's lies. They, however, did not see them as lies, but as evidence of manipulation and a lack of remorse. Upon receiving these reports, the judge backed out of the deal. Lisker was allowed to withdraw his plea and go to trial. He was convicted and sentenced to life.
Lisker became eligible for parole in 1992. Hoping that it would help him gain his freedom, Lisker again admitted to killing his mother -- another false guilty plea. And again, it did not work. When he next appeared before the Board in 1999, he again claimed his innocence. After his parole was denied, Lisker set out to prove his innocence and to get his conviction reversed. As Lait and Glover have reported, Lisker's efforts, coupled with a reinvestigation of the case by the LA Times and the LA Police Department, have raised serious questions about Lisker's guilt. This past week, a federal magistrate has ordered that Lisker's conviction be vacated and that he be retried or released. While the magistrate's decision is not final -- it must be reviewed by a federal district court -- the prospects for Lisker's release are looking good for the first time since he was taken into custody -- 26 years ago. To review the magistrate's decision and and news of the decision, read Lair and Glover's latest piece at:
http://www.latimes.com/news/local/la-me-lisker4-2009mar04,0,6497197.story
There are many good reasons for revisiting laws that make it too easy to try children as adults, the best being perhaps that it leads to higher recidivism rates when youth are released. Youth tried as adults are more likely to commit crimes upon release, they commit them sooner and their crimes are more violent. But another reason is that it creates too big a punishment gap between juvenile and adult court, a gap which gives prosecutors too much power to coerce guilty pleas from innocent suspects. One way to solve this problem is to take the decision of whether to transfer a minor out of the hands of prosecutors (whose decisions are unreviewable) and place it into the hands of judges. For those who are still transferred, the idea of "youth discounts" for juveniles sentenced in adult court, an automatic reduction of sentences for juvenile offenders which makes the court take their youth as a mitigating factor, is critical in reducing the punishment gap between juvenile and adult court, a gap which gives prosecutors too much power in plea negotiations and gives too strong an incentive for innocents to plead guilty. Such discounts would also except juveniles from life without parole, mandatory minimum sentences, and "truth in sentencing" schemes which have exacerbated the punishment gap between juvenile and adult sentencing. For juveniles sent to adult court, there must also be an opportunity to send the juvenile back to the court for trial sentencing -- "a reverse waiver" option.
