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The Plea
Written, Produced and Directed by Ofra Bikel



CHARLES GAMPERO, Sr.: The judge told me point blank, "I will give your son 25 to life, so you better take the plea. Or if you don't take the plea, he's getting it.

ANNOUNCER: More than 95 percent of all felony convictions are the result of a guilty plea.

ERMA FAYE STEWART: I was willing to plead guilty, even though I wasn't, because I had to go home to my kids.

PATSY KELLY JARRETT: He said, "We want to drop the murder charge on you if you'll plead guilty to robbery." And I said, "But I haven't robbed anybody."

ANNOUNCER: Tonight, FRONTLINE tells the stories of ordinary people caught up in a nightmare.

PAUL NUGENT, Defense Attorney: All he has to say is one word and he gets to go home: "Guilty."


[clips from "Law and Order" and "Perry Mason"]

JUDGE: How do you plea to that reduced charge?

ACCUSED: Guilty.

JUDGE: Are you pleading guilty because you are guilty and for no other reason?

ACCUSED: Yes, sir.

PROSECUTOR: Could you tell the court, please, why you were late arriving at that meeting, Mr. Cummings?

NARRATOR: Every few hours, every day, all across the country, new and old television shows demonstrate justice at work. Americans love trials. Everyone knows the rules.

PROSECUTOR: Are these the photographs, Mr. Cummings?

BAILIFF: The Honorable Mark Burns presiding.

NARRATOR: The judge--

PROSECUTOR: I show you this weapon, Lieutenant Drumm.

NARRATOR: Evidence--

ATTORNEY: How much are you being paid for today's court appearance?

NARRATOR: Expert witnesses--

WITNESS: Three thousand dollars.

ATTORNEY: Objection. This is irrelevant.

NARRATOR: Attorneys--

ATTORNEY: I don't see the relevance.

JUDGE: I do.

NARRATOR: Prosecutors--

ATTORNEY: No more questions.

NARRATOR: The defendant, the jury--

JURY FOREMAN: We find the defendant guilty.

JURY FOREMAN: Not guilty.

JURY FOREMAN: We're deadlocked.


JOHN LANGBEIN, Prof of Law & Legal History, Yale U: The public perception of our criminal justice system is deeply shaped by television, and that perception is that jury trials routinely occur as a way of deciding whether somebody is guilty or innocent of the offense of which he or she is suspected or accused.

BRUCE GREEN, Prof of Law and Ethics, Fordham U: Any student in a civics class in elementary school or junior high school will learn about a system with a trial by jury and a right to counsel and proof beyond a reasonable doubt. And it won't remotely resemble the system that we have.

JUDGE: When your name is called, please stand and announce that you are here. Kevin Washington. Thank you. Rosemary Gonzalez--

JUDGE: Please have a seat.

JUDGE: --Pablo Hertado. Thank you. Mr. Martinez, how do you plead, sir, to assault on a family member, as alleged in cause number 955015, guilty or not guilty?


JUDGE: Are you pleading guilty--

JUDGE: Are you pleading guilty because you are guilty and for no other reason?


JUDGE: Are you pleading guilty or not guilty?


JUDGE: How do you plead that reduced charge?


NARRATOR: The 6th Amendment to the Constitution guarantees every citizen the right to be judged by a jury of his or her peers.

JUDGE: Do you want to give up those guaranteed rights and proceed to plead guilty today?

NARRATOR: Yet about 95 percent of all people who are convicted of felonies across the country give up that right and plead guilty. Most of these guilty pleas involve bargains in which the accused pleads guilty in exchange for a lesser sentence or a reduced charge.

JUDGE: How do you plead to aggravated robbery alleged to have occurred--

Judge CAPRICE COSPER, Harris County Criminal Court: The system would collapse. If every case that was filed in the criminal justice system were to be set for trial, the system would just entirely collapse.

Judge MICHAEL McSPADDEN, Harris County Criminal Court: A lot of people call it a necessary evil. I look at it as a necessary component in our criminal justice system. But you have to understand that a plea bargain only works if you have experienced, competent defense attorneys, experienced, competent prosecutors and a judge who will oversee and make sure this is done correctly.

JUDGE: How do you plead that reduced charge?

NARRATOR: But what if one or more of them -- these key legal figures -- are not as competent as they should be? What happens then to the plea bargains which are now so much a part of the system?

Tonight we will tell several stories, different people, different charges, different parts of the country, all with one thing in common: the difficult dilemma of confronting a plea.

On November 2nd, 2000, in Hearne, a small town in east Texas, Erma Faye Stewart, then 30 years old, a single mother of two, was arrested.

ERMA FAYE STEWART: The officer just come up to me and said, "Erma Stewart?" I said, "Yeah." And he just, you know, say, "You're under arrest." And you know, he-- you know, he told me to turn around and he put the handcuffs on me. And I asked him for what, and you know, he just never did say nothing. He, you know, just put me in the car.

NARRATOR: Regina Kelly, a waitress, 24 at the time and a single mother of four, was also arrested.

REGINA KELLY: I was at work. Police officers came in and asked for Regina Kelly. I said, "That's me." And he said, "Ma'am, we have to take you into custody." And I was, like, "Oh, my God!" I knew I had tickets, and I just-- I told my manager, I said, "I'm going to jail because I have tickets that I haven't paid for. I just haven't paid my traffic tickets." And the police officer told me, "It's not the tickets," and that was it.

NARRATOR: The cases were prosecuted by the district attorney of Robertson County, John Paschall.

JOHN PASCHALL, Robertson County DA: I'm going to write this down. I'm going to put it down with the offer I made to you. And you get back to me next week, and I'll do the paper workup. OK? Thank you.

The case began with our narcotics task force that operated in this county. It conducted an undercover operation. And they made the cases. And once they made the cases and turned them over to the district attorney's office, those cases were then presented to a grand jury. And then the grand jury returned indictments in those particular cases.

NARRATOR: It was part of a big drug sweep based on a confidential informant who would later be proven unreliable. He implicated 25 men and 2 women with felony drug distribution charges. Many lived in this public housing project. All but one were black. They claimed they were innocent. They were thrown into jail, with bond set as high as $70,000 each.

Regina and Erma Faye shared a cell with two other women. Neither had been in jail before.

Editor's Note, June 21, 2004: FRONTLINE made a factual error in reporting that neither Regina Kelly nor Erma Faye Stewart had been in jail before. Kelly spent one day in jail in 1995 and half a day in 1997; Stewart was once in jail overnight in 1999.}

REGINA KELLY: It was hard. It was a cell for two people, so me and the other girl had to sleep on the floor. It's concrete. It's hard. It's cold. What made it bad was because you are in there and there's nothing you can do about it, and you are in there for something you didn't do. And it was hard just wondering what's going to happen next.

NARRATOR: They put their faith in their court-appointed lawyers.

REGINA KELLY: Our lawyers, that's really all you have to just help you. You know, they went to school for this. They know what to do. But it didn't happen like that. Like, when we all went to court and got our court-appointed lawyers, I wanted to talk to him, sit down and talk to him and say, "Hey," you know, "this is the type of person I am." You know, "You can look at my background. You can ask people in the community, just"-- you know, I wanted him to know about me so he could have a better sense in how to represent me, know what type of person I am. He didn't want to hear it. He didn't have time. You know, it didn't matter. It was always an excuse somewhere.

NARRATOR: Erma Faye did not fare much better.

ERMA FAYE STEWART: I had asked my lawyer, you know, "What they going to," you know, "do about that?" He goes-- you know, he had told me that I was looking at a 10-year prison term. I had told him, like, "For what? I ain't did nothing."

REGINA KELLY: My lawyer came to me and suggested 10 years probation. And like I told him, I wasn't going to take it if I did not do this. I didn't do this. They have no evidence, no nothing. "Everything is screwed up, and you still want me to plea out with them?" And I wasn't going to do it. Later on, he came back with five years probation. The DA went from 10 years to 5 years. And I told him the exact same thing. And he kept urging me and encouraging me to take it because if I went to trial, then I would be facing 5 to 99.

ERMA FAYE STEWART: He was, like, pushing me to take the probation. He wasn't on my side at all. He wasn't trying to hear me. He wasn't trying to explain nothing to me. And I even had told him, you know, "My understanding, you know, is not that good, so, you know, you're just going to have to really break it down to me, for me to understand."

Ofra BIKEL: He didn't?


BRUNO SHIMEK, Attorney: Her name Erma Faye Stewart? I don't believe that I represented Erma Faye Stewart. I have to double check my records on that.

NARRATOR: Bruno Shimek, Erma Faye's court-appointed lawyer, whose name was on her plea agreement, did not remember her, nor could he find any record confirming that he ever represented her.

BRUNO SHIMEK: I don't have a file on her. You know, went through and looked at all those, and she's not a person that-- you know, Robin Stewart I represented, Aaron Stewart, Eric Stewart. I've checked all those, but not Erma.

NARRATOR: Stephen Bright is a defense attorney, professor of law both at Yale and Harvard, and the director of the Southern Center for Human Rights in Atlanta.

STEPHEN BRIGHT, Dir, Southern Ctr for Human Rights: Well, it's not unusual for lawyers who handle a high volume of cases to not know their clients' names. I go to courtrooms all the time where you see the defense lawyers coming in, and they'll stand up in the front of the courtroom and call the names of their clients, because they don't know who the clients are, and ask them to raise their hand.

JUDGE: When your name is called, if you do not have an attorney and you wish to have an attorney appointed because you cannot afford one, if you will please so indicate, we will see that you get an attorney appointed. And Mr. Schere, would you stand? This is Mr. John Schere. He's the public defender for Crisp County. I'm going to stand aside and give the public defender and the attorneys an opportunity to--

STEPHEN SCHULHOFER, Professor of Law, New York Univ: The public believes that every criminal defendant has a right to the effective assistance of counsel. And that is just so far out of touch with reality, it's hard to even begin describing it.

STEPHEN BRIGHT: It doesn't matter that the lawyer may be conscientious, just the system makes it impossible for that lawyer to do his or her job. People may be not guilty, people may be guilty of some less serious behavior than what they're accused of. Many of the people that come into the court system are mentally ill, may have been put up to it by somebody else. The lawyer won't know any of that.

JOHN LANGBEIN, Prof of Law & Legal History, Yale U: I do not contend that our jails are stuffed with people who pleaded to things that they didn't do. I think most people who are prosecuted of serious crimes are guilty of at least what they're charged with and ought to have serious criminal sanctions attached. But the problem is, "most" isn't the way we do business in a free society that cares about individual rights and individual liberty.

JONATHAN OBERMAN, Prof, Cardozo School of Law: Happens every day in every courtroom in the United States. People come into arraignment, they meet their attorney, they have a brief conversation, they're informed of the charges, they're informed of what they could plead guilty to, possibly to get out of jail that night, possibly not. They have to make a decision. That's the truth. Less interesting story than the one that Law and Order tells people, but that's the truth.

NARRATOR: Three weeks after her arrest, Regina's parents managed to have her bond reduced from $70,000 to $10,000, and she went home to await trial. Erma Faye stayed behind.

REGINA KELLY: When she heard me on the phone saying I'm going home, it was over with. From that point on, it was-- I mean, it was downhill because she was going to be by herself.

NARRATOR: Erma Faye then offered to plead guilty.

ERMA FAYE STEWART: Even though I wasn't guilty, I was willing to plead guilty because I had to go home to my kids. My son was sick. And I asked him, "Listen, now, you know-- you know, I can plead for five-year probation. You know, just-- just let me go home to my kids."

NARRATOR: The district attorney, Erma Faye says, did not agree to five years probation. He demanded ten years.

ERMA FAYE STEWART: I had signed the paper. He had took me back in front of the judge. He had, you know, told the judge that I took the ten years. And you know, they took me back to my-- after that, they took me back to my cell, and an hour later, you know, they had released me.

NARRATOR: Of the 27 people arrested, 7 pled guilty and most of them got out on probation. A few posted bond, and the rest stayed in jail.

STEVE BRIGHT: One reason that a lot of people plead guilty is because they're told that they can go home that day because they'll get probation. What they usually don't take into account is that they're being set up to fail.

JUDGE: --sentence you to serve five years in the state penitentiary. Going to allow you to serve that sentence on probation, with credit for the three months that you've already served.

NARRATOR: There are about four million people on probation across the United States, offenders who live in the community under supervision.

JUDGE: --pay a fine as to each count--

NARRATOR: Among their obligations, they often have to pay fines, court charges, probation fees and for different treatment programs that they must attend, all of which constitutes a sizable source of revenue for local governments.

JUDGE: --also impose a fine in the amount of $1,000 plus costs and surcharge and also order that you--

STEVE BRIGHT: Many of these people are poor. They're destitute. They have no money at all, and yet they're going to be told to pay a fine. They're going to be told to pay a fee to a probation officer every month-- I mean, all sorts of consequences that are going to flow. And perhaps the one that's least understood is that the failure to meet these payments and meet the conditions of probation is going to bring that person right back into court, and they're going to face probably more time in prison than they did originally because now they're going to be punished for violating their probation.

BRUCE GREEN, Professor of Law, Fordham Univ: There's a lot of harsh consequences. You may not be eligible for public housing. You may lose the right to vote. You may not be able to get certain employment. If you're an immigrant, you may be deported. So it's no great shakes to get a conviction and probation.

JOHN PASCHALL, Robertson County DA: Well, it's a punishment, but it certainly beats going to the penitentiary.

NARRATOR: Michael Wells is not so sure. When he was arrested in the drug sweep in Hearne, he had been serving the last four months of a prior 10-year probation for a drug-related crime to which he had admitted guilt.

MICHAEL WELLS: When I first got put on probation, I told the judge I was going to complete it. And he said, "When you complete it, I'm going to shake your hand." I was looking forward to that day, let him know, "Hey, I did 10 years probation." So there is people out there that make mistakes and they correct it, you know, themselves by doing. And then when they came up with the drug bust, it was, like, you know, "This is a bunch of-- this stuff sucks." This whole system, probation sucks. I'd never take it again, you know?

NARRATOR: Recently, Michael fell behind in his probation fees and was hiding from the probation officers.

MICHAEL WELLS: I don't got the money, I get harassed every time I go in there. "You need to pay this here." I was going faithfully before then, but now, since I ain't got no money and I'm-- I'm just at a struggling point right now, so therefore, I don't want to look in their faces and hear their criticism of "Come up with this money." Every time you go in there, that's how it goes down.

STEPHEN BRIGHT: The courts are sort of like finance companies now. They're trying to collect all this money from people, and of course, the people don't have any. I mean, this is like trying to get blood out of a turnip. I mean, we're talking about the poorest people in our society, who are really barely surviving. And so they can't pay, so the probation officer renegotiates with them and sometimes even go back to court and extend the probation. And so they're always paying. And it really is very much like a high-interest loan. I mean, it's like you never get it paid off.

NARRATOR: Those indicted in the drug sweep who refused to take a plea and couldn't afford bond spent five months in prison awaiting trial. The first trial opened in the Robertson County courthouse on February 19th, 2001. It soon became clear that the evidence was worthless and that the confidential informant had lied to the prosecution.

JOHN PASCHALL: The informant that was used by the law enforcement was not credible in his testimony. And if someone is not credible to me, then I cannot see putting that person on the witness stand and trying a case. So we dismissed-- I dismissed the cases.

NARRATOR: Within a few weeks, all the cases -- except those who had pled guilty -- were dismissed. But the neighborhood remained wary.

REGINA KELLY: Even though it was thrown out, they're still not saying you're not guilty. The DA done went in the newspaper and said, even though the cases were thrown out, dismissed, they still are guilty. You know, he's still telling people we're guilty.

JOHN PASCHALL: I believe every one of them was guilty. But I don't believe the state had enough evidence to convict them beyond a reasonable doubt.

REGINA KELLY: It was hard. My children-- my oldest daughter, she felt like I lied to her. Children in school were making fun of her-- "Your mom's a dope dealer," you know? I want a formal apology. The same way, you know, that you put it out there to the world that I'm guilty of this crime, I want you to put it out there to let them know that you made a mistake.

NARRATOR: No apology would help Erma Faye. Three years after she pled guilty in order to go home and take care of her children, she was destitute. Because of the plea, she's ineligible for both food stamps for herself and federal grant money for education. She cannot vote until two years after she completes her 10-year probation, and she has been evicted from her public housing for not paying rent. Her children sleep in various homes, and she is homeless. She spends her nights outside the housing project, waiting for the morning, when she can go to her work as a cook. Her job pays her $5.75 an hour.

REGINA KELLY: I honestly don't believe she really understood the full extent of everything. She's a single mother. I'm a single mother. There is no way we can live without help from the government. We need that help, you know, and you cannot get that. You cannot get that if you plea out to this.

ERMA FAYE STEWART: You know, my people, they weren't looking out for my kids, you know, like I look out for theirs, but--

REGINA KELLY: If I would have stayed, I wouldn't have let her plea out for anything. I know I'd have made her stay right there with me.

ERMA FAYE STEWART: I was just-- I don't know, just-- I just, you know, try to maintain or-- you know, just sometimes, I'm always, you know, thinking of killing myself to just get away from this!

Ofra BIKEL: The pressures?

REGINA KELLY: Don't do this to your kids. They look at your face and they know something's wrong. Your oldest child, she know. She's old enough. She know. She can just look at you and just tell, Mama, something's not right.

ERMA FAYE STEWART: They say I owe them $1,866.

NARRATOR: She owes a $1,000 fine, court costs and late probation fees.

ERMA FAYE STEWART: They pressure me to pay this money, which they know I don't really have. They see it as, like, as long as I have a job, you know, I can pay this. You know, I even explained to them, you know-- you know, I'm having a hard time. You know, I have to buy my son medicine. I have to have his medicine for his asthma. They didn't really care about that. All they wanted, you know, was the money.

STEVE BRIGHT: One of the corrupting influences in our courts is that many localities depend upon the courts as a major source of revenue, that the speeding tickets and the driving while under the influence of alcohol tickets and the money for marijuana possession and all of these crimes is to generate money. But when the courts are in pursuit of profit, that's in conflict with being in the pursuit of justice.

[ More on the Hearne, Texas, cases]

NARRATOR: Erma Faye will be under probation for at least seven more years. The fact that her case would have been dismissed with all the others, had she not taken the plea, makes no difference.

ALBERT ALSCHULER, Professor of Law, U of Chicago: It's very difficult once you've pleaded guilty. The guilty plea sort of puts a lid on the box, regardless of what's inside the box. 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 finding out the truth. It's designed to avoid hearing the defendant's story.

NARRATOR: If that's true in a small town in east Texas, it's just as true in the big city. Take the case of Charles Gampero of Brooklyn, New York. On December 11th, 1994, an incident happened outside a bowling alley. A 33-year-old man was killed. His name was John Weingrad.

JOSEPH WEINGRAD, Victim's Father: One of the detectives greeted me, and he said, "Your son took a beating." And I said, "How bad? How badly was he beaten?" And he said, "He died." I said, "Oh, my God!" I said, "Are you crazy?"

NARRATOR: A 20-year-old man, Charlie Gampero, was charged with murder in the second degree, murder with intent to kill. The defendant had no criminal record, and the two did not know each other. Charlie's father, Charles Gampero, Sr., was in the bar of the bowling alley that night.

CHARLES GAMPERO, Sr., Charlie's Father: Charlie told me he had a fight. I mean, when he came back into the bowling alley, he was wearing beige. He wasn't scuffed and his clothes weren't messed. He was-- it was like he had just walked in, like he had just gotten dressed, left the house and walked in.

NARRATOR: There was no question that John Weingrad and Charlie Gampero had a fight very late at night outside the bowling alley. What was in question was, how did the fight start, and more importantly, how it ended.

The photographs the police took of the dead man showed a badly bruised face. The defendant claimed he left him unharmed. According to Charlie Gampero, he was trying to prevent a fight outside the bowling alley when the victim turned around and punched him. He then punched him back and kicked him, leaving him on the ground, but, he says, very much alive.

CHARLES GAMPERO, Jr.: My father came home that later night, and he had said that the guy that I had a fight with had passed away. And I couldn't believe it. I says, "How? What happened?" So I had assumed that maybe something happened afterwards. I don't know because I-- I didn't think that would have anything to do with me. I mean, he was sitting up when I left.

NARRATOR: The details were murky. There had been a fight at the bar of the bowling alley between John Weingrad and other people early in the evening, before the defendant got there. It quieted down but left people angry. Was that a connection to the killing?

There was something else. The victim's car was found outside the bowling alley, wrapped in toilet paper. According to Joseph Weingrad, the victim's father, this kind of harassment had started happening a few weeks before. Was this connected to the killing?

JOSEPH WEINGRAD: "The only thing I could tell you," I said, "is that he was subjected to a lot of harassment beginning back around Halloween, when he came home from a Saturday night and his car was covered with eggs." And I asked him, "John, what happened?" And he said, "I don't know. I came out of the bowling alley, and these eggs were all over the car."

We just assumed that it was just kids. But see, the harassment continued. There were times when his car was moved. As a matter of fact, my wife and I actually sat one night -- John parked his car three blocks away on a Saturday night. We sat up here till about 1:00, 1:30 in the morning, just sitting here, watching his car to see if anybody would come along and try to do anything to it, pick it up or move it, or what have you. But nothing happened that night, and so we went home. And John came home. There was no problem. And then the following week, he was killed.

NARRATOR: The prosecution's theory of what happened was completely different. They believed, they told Mr. Weingrad, that his son was killed because of a phone call. There was a phone call for Charlie Gampero that night on the pay phone at the bowling alley. It was his girlfriend looking for him. Someone answered it and apparently spoke obscenely to her. The prosecution's theory was that the person who answered the phone was John Weingrad, and that's why Charlie Gampero went after him and killed him.

Charlie Gampero says that's not true, that he was trying to break up a fight. But he never got to tell his version of the story. He has never been questioned by the police-- before or after his arrest.

CHARLES GAMPERO, Jr.: We went in for questioning in the morning. When we got there, we went to the detectives' room, and the detective turned to my father, "Are you Charlie, Sr.?" He said yes. He turned to me, "Are you Charlie, Jr.?" I said yes. And he turned to the female detective and said, "OK, read him his rights." That was it.

PHYLIS GAMPERO, Charlie's Stepmother: In a matter of five minutes that Charlie was there, my husband called me to tell me, "Get a lawyer. They arrested Charlie."

NARRATOR: All of the theories, evidence and testimonies were to be presented to a jury in a Brooklyn criminal court in November, 1995.

CHARLES GAMPERO, Jr.: Of course, I wanted to go to trial because murder is where you intend to hurt somebody. That wasn't my intention. I didn't intend to hurt anybody. I wasn't there to get into any type of fist fight. I wasn't looking for trouble. So I didn't understand how they would have these major charges against me.

PHYLIS GAMPERO: I really thought that Charlie probably would have went to a trial, you know, and he would have been acquitted because, you know, he didn't do it.

NARRATOR: Joanne, Charlie's mother, is remarried and lives in Florida.

JOANNE, Charlie's Mother: Charlie came down with a friend of his to tell me that this had happened. It was just a fight, you know? They didn't think it wasn't too serious. Then my ex-husband called and said, "We are going to court, and something will happen." And that's when I flew in, and that was the first time that I really realized what was happening and how serious, and so on and so forth.

Ofra BIKEL: Did anybody ever discuss the possibility of a plea bargain with you?

JOANNE: No, there was never a plea bargain on the table, to my knowledge. Ever.

NARRATOR: But unbeknownst to them, there was a plea bargain on the table. In fact, one had already been negotiated between the prosecutor and the victim's father.

JOSEPH WEINGRAD: I would say probably within two or three weeks prior to going into court, I was brought in by the district attorney, Mr. Gliatta, to his bureau chief. She sat there and she said to me, "Mr. Weingrad, there are some problems with this case. And we feel we can win the case in court, but I just want you to know there are some problems in the case, and it might be advisable to let him plead to a lesser charge."

If I was thinking clearly, I'd say, "What are the problems?" But I wasn't thinking that clearly at the time.

NARRATOR: After discussing various possibilities in the DA's office, they agreed upon a manslaughter charge and a sentence of 7 to 21 years in prison.

JOSEPH WEINGRAD: I said to the district attorney and his boss, I said, "If you can guarantee me that he cannot get out of prison before that seven-year term, that he must spend that full seven years, I think I will agree then to accepting a plea bargain." And they said, "Oh, he'll spend the whole seven years." As a matter of fact, he said -- or she said, rather -- "We guarantee you he'll do 10 because even when they come up for parole, they're never granted parole on the first time around." I said OK, and that was it.

NARRATOR: Unaware of what had transpired between the prosecutor and the victim's father, the Gampero family went to court to meet the judge.

CHARLES GAMPERO, Jr.: I mean, he scared me like nobody has ever scared me in my life. I-- I-- he-- he tells us his name is Frank Egitto, but they call him "Maximum Frank."

NARRATOR: Judge Egitto, who served on the bench for 30 years, is now retired and serves as a judicial hearing officer.

Judge FRANCIS EGITTO, Supreme Court of NY, Kings County: I admit it. My sentences may be a little more harsh than somebody else's, but I have to do it according to my conscience, not someone else's conscience. I have to be able to sleep nights. And I'll tell you this, I'm a very peaceful sleeper.

NARRATOR: Looking at the minutes of the case, Judge Egitto remembered.

Judge FRANCIS EGITTO: Something happened as people were exiting this particular bar. The defendant claims that the deceased struck him. The defendant responded, not with a punch but knocking the deceased down, kicking and punching him while he was on the ground, stomping him while he was on the ground. They just went-- in my opinion, he just lost it. And it was a mean, vicious, attack.

CHARLES GAMPERO, Sr.: Now he's telling us if we go to trial with this, he will give my son the maximum of 25 to life. He doesn't want to know if he's innocent. We had started to pick the jury already. I think there were two jurors picked, if I'm not mistaken. Then they came up with a plea deal. Naturally, we said, "That's crazy." We didn't want a deal.

NARRATOR: The deal offered by the prosecution was manslaughter with 8-and-a-third to 25 years in prison, an offer higher than the one agreed upon with Mr. Weingrad, which was 7 to 21. Then the judge intervened, saying he would try to do better than that.

CHARLES GAMPERO, Sr.: So the judge goes out, comes back and tells us, "All right, I just was on the phone with my boss," whoever that was, "and they're allowing me to offer you 7 to 21."

CHARLES GAMPERO, Jr.: At that point, it was just like-- like I wasn't there. Like, you know, you're just, just in shock. You know, you just go through the motions. You can't believe its happened to you. It doesn't seem real.

CHARLES GAMPERO, Sr.: I'm sick to my stomach because at that time, I was-- I was 48, and I said, "By the time my son gets out, if he gets 25 to life, he'll-- he'll-- he'll be my age." They'll-- forget about raising a family. Forget about anything.

JOANNE: I didn't feel it was my decision to make. I just felt that they had to decide. It was going to affect my ex-husband more than me. And if I would have pushed to go to trial and it didn't turn out, he would have never forgiven me.

CHARLES GAMPERO, Sr.: He told me point blank, told me and my ex-wife, he said, "If I-- I will give your son 25 to life, so you better take the plea. Or if you don't take the plea, he's getting it."

NARRATOR: According to Professor Green, these kinds of threats are constitutional and legal.

BRUCE GREEN, Prof of Law and Ethics, Fordham U: Some years ago, a defendant argued to the Supreme Court it's inherently coercive if the prosecutor says to me, "You can plead guilty and get 3 years in jail. Otherwise, you can go to trial and have all your trial rights, but if you're convicted, you face 30 years in jail." That sounds like coercion. And to you and me and most ordinary people, that sounds pretty coercive. But under the Constitution, that's not considered coercive. And so if you plead guilty with-- in order to avoid an infinitely harsher sentence, that's considered a voluntary plea.

NARRATOR: The Gampero family was given the night to weigh their options. They had to decide whether to insist on a trial, knowing the risk of a maximum sentence of 25 to life, or take the guilty plea with its sentence of 7 to 21 years in prison. They wrestled deep into the night.

Two decades before, Patsy Kelly Jarrett was faced with the same quandary.

PATSY KELLY JARRETT: Being outside is just like a fading memory. It's been so long ago. So much has changed. The whole world's changed since I've been out there. I've been in Bedford Hills since 1977. I'm one of the longest-serving inmates. When you're in prison, you die inside. You just die. And what keeps you going is people that love you and care about you and that reach out to you and say, "We love you. We care about you."

NARRATOR: One of those who reached out to her was law professor Claudia Angelos.

CLAUDIA ANGELOS, Prof of Law, New York Univ: Kelly Jarrett and I are exactly the same age. We are of the same generation. And anyone else who is of that generation will, I think, understand the social circumstances in which she grew up. This was in the early '70s that she was a young woman, maybe 21, 22 years old. She was pretty marginal. She's from North Carolina, kind of a trailer girl, but a good kid. She had a car and she had a job and she had some friends.

NARRATOR: In 1973, 23-year-old Kelly Jarrett took her first trip out of North Carolina. It was a trip that would change her life forever.

CLAUDIA ANGELOS: She had a friend who suggested, "Oh, let's just get out of here for the summer." So she and this friend, who was a guy, drove up through the South, into the Northeast and up to Utica, New York. And they kind of landed there for a few weeks. Her friend did some day-laboring kind of work. He used her car. And she kind of hung out, played softball, had a little summer vacation. A couple weeks later, they made their way back to North Carolina and resumed the lives they had had.

PATSY KELLY JARRETT: About three years passed. There was a knock on the door and the police were there with a warrant for my arrest for a murder from Utica, New York. And I was shocked. I was really upset. And you know, I called my parents. You know, I went down to the police station. They came down and met me there. I took a polygraph while I was there. And I was locked up until my parents obtained a counsel and attorney for me, to help represent me.

CLAUDIA ANGELOS: It turns out -- and it's beyond any doubt -- that the guy she was with while they were in Utica robbed a gas station and murdered the gas station attendant.

NARRATOR: It was the most brutal murder ever seen in the small town of Sherrill, near Utica, New York. Seventeen-year-old star athlete and high school graduate Paul David Hatch was bound, gagged and killed by a white young man during an armed robbery of a gas station. It was clear that two people were involved. According to the eyewitness testimony of an elderly man, the second person was outside in a car. He wasn't sure if it was a man or a woman.

CLAUDIA ANGELOS: There was no other evidence against Kelly Jarrett at all. That was the evidence. A man who had said, "I couldn't see the face, I don't know if it was a boy or a girl," two-and-a-half years later said it was her. That was the evidence. There was nothing else connecting her to that crime.

NARRATOR: She was tried jointly with her co-defendant, the man she was with that summer, whose fingerprints were found at the crime scene.

PATSY KELLY JARRETT: I learned in the courtroom what happened, how, when. And it was just awful, you know? It was just awful to be sitting there and to be accused of something like that. It was just a horrible experience.

NARRATOR: The evidence against her friend was massive. The evidence against Kelly Jarrett was weak.

CLAUDIA ANGELOS: It was an extraordinarily weak case, this very poor, extremely unreliable identification and nothing else. So she was offered a plea of 5 to 15 years if she would plead to the robbery, not to the murder. A plea of 5 to 15 years in those days meant that, absent any serious misbehavior, a person would be paroled at 5 years without any question. The system is different now, but it certainly meant that then she would-- at that time, she would have served 5 years. She had already been in jail waiting for trial for-- certainly, over a year, as I recall. So she would have served only about 4 more years. I know she was advised to think seriously about that plea by her lawyer.

PATSY KELLY JARRETT: I told my attorney, "You know, I can't-- I can't do this." And he said, "Well," you know, "my hands are tied. He said, "We want to drop the murder charge on you if you'll plead guilty to robbery." And I said, "But I haven't robbed anybody."

CLAUDIA ANGELOS: The notion of pleading guilty to something she absolutely didn't do, on the evidence of a man who didn't even see the face of the person who was there, was ridiculous. And I don't think she seriously considered taking that plea for a minute.

NARRATOR: She faced the jury claiming that she had nothing to do with either the robbery or the murder.

PATSY KELLY JARRETT: I believed in the American system of justice. I believed that you just tell the truth and the judge and jury will hear you, and you know, nothing will happen to you. But I was wrong, and I got convicted and was-- I was sentenced to 25 to life.

STEPHEN SCHULHOFER, Professor of Law, New York Univ: Innocent people are convicted at trial. So this happens at trial. People who defend plea bargaining will say, "Well, sending people to trial doesn't necessarily guarantee perfect results." But what the guilty plea system guarantees is that when you have miscarriages of justice, the victim of it is going to face staggering sentences because those sentences are not a consequence of justice. Those sentences are a consequence of the need to grease the wheels of the system. So they become the example or they become the grease or they become the object lesson. And what we see, the next time around, the prosecutors says, "Well, you want to go to trial, that's your right. You can be just like Mrs. So-and-So. And look what happened to her."

NARRATOR: After a night of soul searching, Charlie Gampero came to the same conclusion that Kelly Jarrett had. He wanted a trial. His parents were anxious.

JOANNE: Charlie had decided he was not going to take it.

CHARLES GAMPERO, Sr.: Charlie wanted to plead not guilty and, you know, I didn't say anything at that time, when he said, you know, "I'm pleading not guilty, we're going to go to court with this." So I didn't say anything. I was, you know, nervous.

JOANNE: Then the attorney said, "Well, you know, this is a Friday and we do have a lot of family out of town, and would like to have till Monday to think about it and discuss it." So he said, "No, no, no." He said, "If you do that, the DA's got to work all weekend getting their witnesses together and," you know, "we can't do that and," you know, "put it off." And it says in the minutes, "Let's get this in and out," you know? He's in a hurry to, you know get it off the table and on.

Ofra BIKEL: The judge.

JOANNE: Oh, yeah. Yeah.

Judge FRANCIS EGITTO, Supreme Court of NY, Kings County: My job was to expedite the movement of cases. My delaying this case delays the next case, which delays the next case. If I went till Monday and then they decided not to take the plea on Monday, I would have to adjourn the case again for the purpose of the DA making sure they had all their witnesses.

CHARLES GAMPERO, Jr.: I'm saying to myself, "It's been a year. If the prosecution doesn't have their case already ready, what's the difference whether I tell him I'm going to trial over the weekend or not?" Were they going to get ready in two days?

JOSEPH WEINGRAD, Victim's father: And the judge said, "No, you've got exactly 15 minutes. You go outside, you talk to your clients and you're back in here in 15 minutes with the decision. And I'm telling you now, if you do not take the plea, and I find, or we find your client guilty, he's going to get 25 to life. And once the trial commences, I will not entertain any pleas. The trial will go through to its conclusion. And if he's guilty, 25 to life. Go talk to your client."

CHARLES GAMPERO, Sr.: So we're in the hall of the courtroom. Someone came out and told us, "The judge would like you to come inside. They're bringing in another case for the sentencing."

NARRATOR: The case was a young man who had charges similar to Charlie's.

CHARLES GAMPERO, Sr.: So the kid came in. They found him guilty. And he told the kid, "I am sentencing you to 25 to life." Now, whether he did this to scare us, which he already had me scared, so he-- it made-- made it much, much worse.

CHARLES GAMPERO, Jr.: Anyway, I go out in the hallway. And it's me, my father and my mother. And they're telling me-- I think my mother had said, you know, "If you get 25 to life, I might not be alive when you come home. Who knows what could happen in that many years?"

JOANNE: I had to walk away. And I just walked away, you know, hysterical, crying by myself. I mean, it was really-- it was very emotional. Very, very, very emotional. Very sad.

CHARLES GAMPERO, Sr.: We were crying like babies. But that's all he wanted. He wanted that decision. Then and now, he didn't want to know anything.

CHARLES GAMPERO, Jr.: I'm saying to myself, "Well, this is the Judge that's going to be handling the trial. This guy is going to make the decision. If my lawyer objects something, he's going to decide whether it"-- you know, "it's going to upheld or sustained, whatever. Who"-- you know, "Now I'm against everybody. Who's on my side here?" My lawyer was standing, like, on the other side of the hallway, and I was kind of looking at him, like, "Are you going to give me any type of advice here? Are you going to tell me anything, like, should I do it, shouldn't I do it? You don't have to guarantee me anything, but you know better than me. Explain something to me. Tell me something."

Ofra BIKEL: He didn't.


JOANNE: I just don't think that he was either-- I don't say that he wasn't prepared, but I don't think it-- maybe it was over his head or he didn't know what to do. And I don't think he had a good solution to the problem.

CHARLES GAMPERO, Sr.: He turned around and he said to me, "Charlie," he says, "I'll tell you the truth," he says, "I-- I don't even-- I-- I can't even give you an answer," because I said, "What should I do?" He says, "I don't know." He says, "I have a"-- and he has a young son also. He says, "I can't even tell you what to do." I mean, he felt for us. He says, "I've never seen it where they force you or put your back against the wall like this."

[ A lawyer's role in a plea]

STEPHEN SCHULHOFER, Professor of Law, New York Univ: A lawyer who goes to trial has a strong duty to investigate the case, to interview witnesses, to look for defenses, to prepare for cross-examination. A lawyer who plans to plead guilty can make a tactical judgment that it's not worth his time. So in effect, the defendant not only waives his right to a public trial and all that that entails, he also, in practice, is waiving his right to legal research and to thorough factual investigation by his own lawyer.

NARRATOR: Charlie Gampero now believes that his lawyer was not prepared to go to trial. And since he never previously told the family about the plea, he may have been just as surprised by it as they were.

The lawyer refused to talk to FRONTLINE or help in any way with this documentary.

JOANNE: I guess, at that point, Charlie felt that maybe it was a good idea to take it. Judge Egitto kept making us think that he had this good deal for us of 7 to 21. You know, there'd be programs, there'd be this, he'd be out in 7 years, you know. Yeah. Well, we just passed the 8-year mark.

CHARLES GAMPERO, Sr.: We took the plea agreement thinking that the judge knew what he was talking about and my son would be home by the time he's 27. "At 27," I said, "Charlie, you could still raise a family. You could-- you could still have a good life." It didn't work out.

CHARLES GAMPERO, Jr.: It was just, like, you know, I just wanted to take it away from them. You know, why are they-- why-- why does my family got to go through this? So it seemed like this is what they wanted. Not that they wanted me to go to prison, but-- so I-- you know, I decided. I told my lawyer, "All right, we're going to take the 7 to 21." And that was it.

JOHN LANGBEIN, Prof of Law & Legal History, Yale U: Any of us will plead guilty if the disparity between what we're threatened with if we go to trial and lose, and what we get if we don't, is increased enough.

NARRATOR: There is no greater disparity than in a death penalty case, when the choice is between a guilty plea with an immediate release and a possible execution.

In February, 1999, an unprecedented fourth capital murder trial was about to begin in Bastrop, Texas. It had a 20-year-old history. Three trials had already taken place. Prosecutors and defense attorneys had come and gone. A death sentence had been imposed, reversed, reimposed, and then reversed again. This was to be the end of the road, the very last trial of Kerry Max Cook.

Paul Nugent has been his defense attorney since 1991.

PAUL NUGENT, Defense Attorney: We're actually in the courtroom for a pre-trial hearing. The district attorney's first assistant comes to me and pulls me aside and kind of stuns me. He says, "Will Kerry consider a plea bargain?" It was shocking and surprising because for 20 years, all you had heard from the district attorney's office was this vicious rhetoric that Kerry was this heinous criminal who deserved to be executed for the rape and mutilation of this young woman, and all of a sudden, they're offering him freedom. All he has to say is one word and he gets to go home: guilty.

NARRATOR: Kerry Max Cook was arrested in August, 1977, when he was 21 years old, charged with the brutal murder and rape of 21-year-old Linda Jo Edwards in Tyler, Texas. He was tried one year later.

PAUL NUGENT: Kerry was a young kid. He was a high school drop-out. And his biggest sin in east Texas in the 1970s was he was allegedly homosexual. It's a very religious community there. It's a part of the American Bible Belt. That was a major strike against Kerry.

KERRY MAX COOK: I can't tell you what that was like, sitting at that defense table and having the prosecution raise his voice, like, in that Southern Baptist way, with the fire and the brimstone and pointing almost inches from my nose and screaming, "It's time to put all the freaks and the murderous homosexuals on the scrap heap of humanity, where they belong"-- I mean, just screaming. I'm sitting there, like, his breath is blowing my hair back out of my face.

NARRATOR: Convicted and sentenced to death, he spent years on death row, where he was abused and raped. He tried to commit suicide and was saved. He then tried again by mutilating himself. He left a note: "I really was an innocent man." The prosecution did not see it as a desperate act but as a confirmation of a disturbed killer.

He had spent 13 brutal years on death row when his sentence was reversed, based on a technicality. That's when Paul Nugent became his lawyer.

PAUL NUGENT: The issue is, has the state proven their capital murder case by proof beyond--

NARRATOR: The new trial, with a new DA, took place in 1992 and resulted in a hung jury. The state then retried the case once more.

PROSECUTOR: --to find this defendant guilty of capital murder because that is the crime he committed on June the 10th--

NARRATOR: The death penalty was reinstated. Then, once again in 1996, the Texas Court of Criminal Appeals reversed the conviction. It also published a scathing critique of the conduct of both the police and the prosecution going back to the first trial in 1978. They wrote that the investigation was intentionally misleading, the key witness, Robert Hoehn's, testimony was prejudicial, and the first conviction was obtained through fraud and in violation of the law.

PAUL NUGENT: The highest criminal court in the state of Texas found substantial and egregious and systematic prosecutorial misconduct in Kerry's case. We're not talking about an isolated act. We're not talking about one instance of police or prosecutorial misconduct. We're talking about systematic misconduct.

NARRATOR: Even the then new first assistant DA, the man who fiercely prosecuted Cook in the last two trials, David Dobbs, agrees.

DAVID DOBBS, Fmr Asst DA, Smith County: Let me make it real clear to you, this prosecution of Kerry Max Cook was mishandled from the start. There were problems, and there's no question that there were things that were done that were unfair to him. I've never indicated anything other than that.

NARRATOR: And yet that didn't deter Dobbs from going on fighting to put Cook to death.

DAVID DOBBS: I'm completely, 100 percent convinced that Kerry Max Cook is guilty.

NARRATOR: He wanted to use the final chance of a fourth trial to convict Cook. But this time, he had to do it without the testimony of his key witness. He was worried.

DAVID DOBBS: The Texas Court of Criminal Appeals, which is the highest court in Texas, had ruled that we could not use the testimony of the man that was with Mr. Cook just prior to the commission of the offense, based on prosecutorial misconduct that had taken place in the '70s. We-- without that testimony, we could not place Mr. Cook at the crime scene the night that the actual capital murder took place.

NARRATOR: The irony was that the testimony of the witness, Robert Hoehn, who had died in the meantime, was the example cited by the Texas Court of Criminal Appeals as prejudicial and contradictory. So what the prosecutor was saying was that if he couldn't use the prior testimony, he couldn't win the case.

DAVID DOBBS: If we could have read in his testimony, even though, as you have pointed out, there are some-- you know, there are some problems with it-- like any other testimony, there's some good with the bad. If we could have read in the testimony and proved his proximity to the crime scene, we would have gone ahead and tried the case.

NARRATOR: He weighed his options. He could go to trial with what he felt was a weak case, he could try to get Cook to take a guilty plea, or he could dismiss the case.

DAVID DOBBS: We were not about to dismiss the case because he's guilty.

PAUL NUGENT: The prosecutor offered if Kerry would plead guilty, he'd get out, his case would be over with. He'd have to plead guilty to time served. And I went and talked to Kerry, and Kerry looked me in the eye and said, "I want to go home. I want to be free. I want this behind me. But I will go back to death row, I will let them strap me to the gurney and put the poison in my veins before I lie, before I plead guilty."

KERRY MAX COOK: It's all I had left. I was innocent. They-- after what they had done to me, and they'd convinced the people of America that I was this raping homosexual, maniacal murderer, alls I had left was my integrity, my honesty, and the truth. And the truth was that I did not rape and kill Linda Jo Edwards, and no one was going to say that I did. No one was going to make me carry that burden.

NARRATOR: What happens when the defendant refuses to plead guilty and the prosecutor is afraid to lose the trial but will not dismiss the case? There was one more possible option. The Supreme Court decided in 1970 that it does not violate the Constitution for a defendant to make a deal and plead guilty while still maintaining his innocence. Such a plea is called an Alford plea or a no contest plea.

ALBERT ALSCHULER, Professor of Law, U of Chicago: It is perfectly constitutional to accept a plea of guilty but not guilty. That is, the defendant can say, "I didn't do it, but I want to take the deal." And the Judge can say OK, which means that it is not necessary for an innocent person to lie to take the deal. He can say he's innocent and still take the deal.

BRUCE GREEN, Prof of Law & Ethics, Fordham U: The Supreme Court says you can plead no contest, you can-- you know. But most prosecutors will not let a defendant enter a plea of nolo contendre or no contest, the way Spiro Agnew did. Defendants are pretty much required to either go to trial or admit their guilt.

NARRATOR: This prosecutor felt he had little choice. He offered Kerry Max Cook the no contest plea, which means that Cook can maintain his innocence while knowing that the court has convicted him. It's the only time it has ever happened in a death penalty case in Texas.

DAVID DOBBS: It's the hardest decision we've ever had to make. But unfortunately, we were faced with the choice of doing something that would ensure that he was convicted of murder or running a very, in my opinion, substantial risk that without the testimony of Bob Hoehn, he would walk the streets free from this.

PAUL NUGENT: They couldn't admit they had made a mistake. They couldn't admit that perhaps the state of Texas almost executed an innocent man. So it was cover for them. It was political cover, is what the plea bargain was.

NARRATOR: Cook now had to make his life-or-death decision.

KERRY MAX COOK: My lawyers told me it was my decision. Paul Nugent said, "We could win it, Kerry. I think you'll be acquitted this time. I'd heard that before. The truth had rung in my ears for so long, I couldn't hear it anymore. I'd given them 22 years. I just didn't want to give them any more. Too much.

Ofra BIKEL: So you took it.

KERRY MAX COOK: I took it. And I regret it every day.

NARRATOR: Then, almost out of the blue, two months after Kerry Max Cook took the no contest plea and 22 years after the murder, the result of a DNA analysis of a semen stain found on the victim's panties came out. It did not match Cook's. The prosecution says that these findings were not exculpatory and that Kerry Max Cook was and remains guilty.

KERRY MAX COOK: It was just a nightmare for me.

["The Exonerated"]

The state of Texas has executed me over a thousand times.

NARRATOR: Kerry Max Cook went on to play himself in the play The Exonerated.

KERRY MAX COOK: I get these nightmares. Sometimes I forget I'm really here.

NARRATOR: Of the eight characters on the stage, he is the only one who is still a convicted murderer.

KERRY MAX COOK: --show the world once and for all that he committed that murder.

DAVID DOBBS: The idea that he's going around the country in a play that purports him to be exonerated and innocent is very distressing to me. But the important thing for us was to insure that he got a conviction for murder that would follow him for the rest of his life.

KERRY MAX COOK: Twenty-two years.

NARRATOR: It does follow him. Married with a young child, he says the state granted him his freedom but neither his dignity nor his peace of mind.

KERRY MAX COOK: The punishment never ended. Say one of my taillights goes out and I'm unaware of it, and the police pull me over. They run that license plate, and first of all, they don't get out of their car until they've got two or three more backups. I'm sitting there waiting, looking in the rearview mirror, saying, "I know what's going on." But I wonder how bad this is going to be because I'm Kerry Cook with a capital murder conviction. So "Let's get out and spread 'em. You have any knives? You have any guns? You have any drugs?" Or you know, "Where were you at last night?"

I don't have any rights left. It's a very, very traumatic ordeal. So you know, was it worth it? Sometimes when I'm holding my son, I can say yes. Sometimes when I'm by myself, I say, no, they won.

NARRATOR: Ten years have passed since Kelly Jarrett rejected her plea bargain and was sentenced to 25 to life. Then she suddenly got another chance at freedom when she met Claudia Angelos. In 1986, Claudia was a young law professor at New York University.

CLAUDIA ANGELOS: I had a little program in which some law students went to the Bedford Hills Correctional Facility to teach inmates about the law. And I had been doing this for a couple of months when I got a phone call from the warden, we call them, the superintendent of Bedford Hills, a man named Frank Hedley, who said, "I wonder if you can help me. I have someone in here I think is innocent."

NARRATOR: Abbe Smith, now a professor of law at Georgetown University, was one of the law students at the time.

ABBE SMITH, Prof of Law, Georgetown Univ: It was my second year in law school, and I signed up to be part of what was then called the Prison Law Clinic. There were a bunch of cases that we could have worked on, and the teacher, Claudia Angelos, basically sort of presented all the cases. And she described Kelly's case, and I immediately said, "That's the one I want to work on."

CLAUDIA ANGELOS: And we filed, ultimately, a petition for habeas corpus, it's called in the federal court, challenging the validity of the eyewitness identification by the old man.

NARRATOR: To their surprise and delight, the habeas was granted. Kelly Jarrett was to be released or retried.

ABBE SMITH: Claudia calls me up and she says, "We won. It's fantastic. We won." And I said, "That's great." And she said, "Not so fast." You know, "The state is going to appeal it, and the circuit court's not going to be as good." And in the meantime, Kelly's offered a plea.

PATSY KELLY JARRETT: "If you'll take the plea, we'll give you time served-- essentially, time served, if you'll just take this plea."

CLAUDIA ANGELOS: She asked me what I would do. I told her I would take it. She asked me what I thought she should do. I told her she should take it. She asked, "What if I don't?" And I said, "I'll fight for you. I'll keep fighting for you. We'll do our best, but we might lose." She said, "Let me think about it." She said, "No, I'm not going to do it. No, I'm not going to do it." I said, "Please think about it. Please talk to other people about it. I think you're making a mistake, but it's your decision."

PATSY KELLY JARRETT: I told them I-- in my heart, I just couldn't do it. It just-- my conscience and in my heart, and it's just morally wrong to say you did something you know in your heart you didn't do. I couldn't live with myself if I did that. I couldn't just-- I just couldn't live with myself. I saw the pictures of the young man, and you know, just-- just for them to want me to say that I did something so horrible just to get out of prison, I just couldn't do it.

CLAUDIA ANGELOS: I understood that. I understood it. I thought it was foolish, but I understood it. I let her do it.

Ofra BIKEL: She couldn't convince you?

PATSY KELLY JARRETT: She tried. She really tried. She said, you know, "If you don't take this plea, you may spend the rest of your life in prison. And I said, "I just can't do it. I just can't do it."

CLAUDIA ANGELOS: She couldn't do it, that God-- she's a religious woman-- that God wouldn't let her do it, that it would be wrong, it would be lying, and that she would rather stay where she was than commit fraud just to get out. And I accepted her decision, and I left.

NARRATOR: After Kelly Jarrett refused the plea offer, the state won the appeal and she remained in prison to serve the rest of her sentence, which may be the rest of her life.

CLAUDIA ANGELOS: And I regret it every day of my life, every day of my life. I could have insisted-- I think I could have-- as I've often thought, I should have reached across the table and grabbed her by the throat and said, "I'll quit. I won't represent you. You must do this. You have no choice." And these last-- these last 20 years, she'd have been with us instead of buried in there.

PATSY KELLY JARRETT: I love Abbe and Claudia, but in my heart, it's just not the right thing for me to do.

BRUCE GREEN, Prof of Law & Ethics, Fordham U: Well, at the end of the day, in this case, evidently, the client had certain values that she places above liberty. You know, it's a sad thing, and what occasions it is the conviction of an innocent person. But from the lawyer's perspective, you have to respect the client's decision at the end of day. If she understands what the stakes are and she knows her own values, she's entitled to say, "I just won't say I'm guilty because I'm not."

NARRATOR: Abbe Smith, who has been Kelly Jarrett's attorney for the last 10 years, does not see it that way.

ABBE SMITH: I would have made her plead guilty. I would have been relentless. I would have brought her brother up to Bedford Hills prison to put pressure on her to plead. I would have brought her father, who was aging and infirm, up there to Bedford Hills prison. If I had to drive down to North Carolina myself and put them in my car, I would have brought them up to the prison and I would have ganged up on her.

And I-- and I-- and I would have had them beg her. And I, and I would have had them cry. And I would have had them say, "Please," you know, "you only have this one life." I-- I-- you know, "I don't"-- I would have had her father say, "I don't want to die while you-- when you're in prison." And I would have said to Kelly, "You know what? You can fight for your good name outside the prison walls, but get out first."

[ More on Jarrett's life]

NARRATOR: Bruce Barket is a defense lawyer in Long Island, New York.

BRUCE BARKET: I know what I'd tell my client. "Out is out. Out is out. Get out. Get out." I mean-- and I tell them that when they're confronted with whether or not to plead guilty. I don't want to stand next to somebody who's pleading guilty to a crime they didn't commit, but I don't want to be standing next to somebody when they're wrongfully convicted of a charge they-- a crime they didn't commit, and get much more time. So I say-- I mean, I'm not shy about trying cases. I'm not shy about fighting the government. But out is out.

BRUCE GREEN: There's a line that you can't cross, and it's not clear where the line is. But at some point, what you're doing stops being giving information, stops being persuasion, and it starts becoming coercive. And you're not supposed to cross that line if you're a lawyer.

ABBE SMITH: You know, most of us don't become criminal defense lawyers because we want to make innocent people plead guilty. But the system stinks. And here's somebody who had been locked up for 10 years in a maximum security prison, and everybody knew that the court of appeals is going to reverse. There is this one moment, this one opportunity to free her, and I would have done everything within my power to get her to plead guilty.

PATSY KELLY JARRETT: That's like-- say, like, you had a daughter and she's carrying a baby, and she doesn't want to have an abortion, but you're forcing her to have one. I mean, I feel she should have the choice not to do that. And I feel that I should have the choice for my own life not to do something that I feel is wrong.

JOHN LANGBEIN, Prof of Law & Legal History, Yale U: Hers is an exceptional reaction. Most people do the obvious, self-serving thing, and that is, they buckle in those circumstances and they bear false witness against themselves. That's what plea bargaining asks you to do, confess yourself guilty.

NARRATOR: In Brooklyn, New York, after Charlie Gampero took the guilty plea, he learned that he then had to confess to every detail of the crime he had pled to.

CHARLES GAMPERO, Jr.: The judge wants me to say what happened. He asked me what happened that night. So I told him that, you know, I-- when I went outside, he hit me, Mr. Weingrad hit me, and I hit him back. When he fell on the floor, I kicked him and I punched him. He went crazy. That was not what he wanted to hear.

NARRATOR: Bruce Barket is Charlie's present lawyer.

BRUCE BARKET: The judge knew that allocution, that statement by Mr. Gampero, didn't warrant a guilty plea. It should go to trial, if that's the truth. So the judge-- "I want a guilty plea. I know it has to be sufficient." He says, "That's not right. You got to tell me more."

CHARLES GAMPERO, Jr.: So he yells at my lawyer and tells my lawyer, "Can you please explain to Mr. Gampero that he has to say what happened here, he has to be honest with what happened here."

NARRATOR: Judge Egitto agreed to go over the minutes.

Judge FRANCIS EGITTO: The court: "I went out of my way to try-- I want a candid statement of what happened, what transpired. This man did not die from one punch. I saw the pictures."

CHARLES GAMPERO, Jr.: My lawyer basically told me, "You have to agree with what he says." So now the judge tells me what happened.

Judge FRANCIS EGITTO: The court: "Kicked him and stomped him?" The defendant: "I kicked him, yes." "And you stomped him?" "Yes." "And by doing that, you intended to inflict serious physical injury to this person?" "Yes."

CHARLES GAMPERO, Jr.: "Yes." "Yes." And I just kept yessing. Whatever-- anything he said, I just said yes to. "Yes." "Yes, sir." "Yes, sir." "Yes, sir."

Judge FRANCIS EGITTO: "You weren't satisfied with just knocking him down and walking away, were you?" Answer: "No." "You wanted to make sure he didn't get up again, right.' "Yes," the defendant.

CHARLES GAMPERO, Jr.: So he basically went down and said everything that happened. I just yes-and-no'ed it.

Judge FRANCIS EGITTO: The court: "Is that plea satisfactory?" Ms. Block, the DA: "Yes, Your Honor."

CHARLES GAMPERO, Jr.: And he tells me off the record, he says, "Make sure that when you go for the pre-sentence report, make sure you tell them the same thing." And that was it. I walked out of the courtroom.

Ofra BIKEL: You mean, "Don't change your story"?

CHARLES GAMPERO, Jr.: Yeah, basically. Not my story, don't change my story. Don't change his story. It wasn't my story anymore.

ALBERT ALSCHULER, Professor of Law, U of Chicago: It's a coerced confession. And you can sort of satisfy your conscience with this salve of, "I made him say he did it." You know, and he's saying, "Well, OK, you son of a bitch, if I got to say I did it to take the deal, I'll say it. Do you feel better now?"

Ofra BIKEL: Do you believe that what the defendant was saying when he was answering all your questions was the truth?

Judge FRANCIS EGITTO: Do I believe it? I have to. Otherwise, I couldn't have-- I would not have taken the plea. I would not have taken the plea.

Ofra BIKEL: Because he started by saying that he punched him and kicked him once, and you said, "No way."

Judge FRANCIS EGITTO: But then he came around. Before I said anything else, he came around to punching and kicking him while he was on the ground. And I added the word, "and stomping him?" And that's when he said yes. But I never put those words in his mouth, right? I only added the word "stomping." Those were his words, not mine. He knows what he was indicted for. He knows what he did.

[ Read the court transcript]

NARRATOR: Joseph Weingrad, the victim's father, is not as sure anymore. A former investigator himself, he began to have doubts about the police investigation and the sentence.

JOSEPH WEINGRAD: If you don't go to trial and you don't get this discovery, and you don't get people getting up there, putting their hands on the Bible and swearing to tell the truth, you're not gong to find out what really happened.

NARRATOR: He began his own investigation. He filed a civil suit against the bowling alley and combed through all the facts the investigators discovered. He came to believe, he said, that the police investigation was sloppy, that the so-called witnesses were inconsistent, and that no one saw his son take the phone call. He felt that other people who had harassed his son before had to be involved, and that Charlie Gampero, who punched and kicked John Weingrad, was probably not the one who killed him.

He went to see the district attorney.

JOSEPH WEINGRAD: I just hit him straight on. I said, "I am not faulting you as a district attorney. I believe that you did a terrific job in that courtroom. You bluffed that defense attorney." I said, "Paul, you didn't stand a Chinaman's chance of convicting Charles Gampero if they went to trial. As a matter of fact, if I had been the attorney, I would have blew you out of the water. There's no way you could have convicted him." I said, "But you know, with your list of so-called witnesses and the judge telling Gampero's lawyer, 'You got 15 minutes to make a decision, or else you're going to trial, and if we go to trial and you're found guilty, you're going to get 25 to life, and I won't entertain any pleas once the trial commences, the trial will go through to its conclusion and he'll get 25 to life if he's guilty'-- scared the hell out of everybody on that side, and they caved in."

NARRATOR: He left the district attorney's office, he said, unsatisfied.

Ofra BIKEL: What did he say?

JOSEPH WEINGRAD: He didn't say anything. Well, I had nothing more to say, at that point, because I understood right then and there he had no intention of going any further with this. So I dropped it.

NARRATOR: Charlie Gampero began his prison sentence of 7 to 21 years in January, 1996. There was no early release. The earliest he could be out, if granted parole, was 2003.

It was also in 2003 when Kelly Jarrett got a hearing in front of the clemency board. After 26 years in prison, she began to think for the first time of life on the outside.

PATSY KELLY JARRETT: I had plans for my life to go to the convent, become a Franciscan sister, and to just live my life outside of prison walls.

NARRATOR: The clemency was not granted. There was no explanation. Only two clemencies were granted by Governor Pataki that year, one of which went to the satirist Lenny Bruce, who died 37 years before.

ABBE SMITH: As my grandmother would say, he should rest in peace. But I don't think he's up there in heaven saying that, you know, it was good that he got clemency. He's probably saying, "She should have gotten it. Give it to her."

Ofra BIKEL: Were you disappointed?


Ofra BIKEL: So what's going to happen now?

PATSY KELLY JARRETT: It's up-- it's up to the parole board. [weeping]

NARRATOR: The first parole hearing for Kelly Jarrett will take place in 2005, but her dilemma may very well follow her. Parole boards expect admission of wrongdoing and expression of remorse. Locked up for almost 30 years for claiming she is innocent, it would be hard to imagine her saying she is not.

Towards the end of his seventh year in prison, Charlie Gampero appeared before his parole board. By then, witnesses had come forward, testifying that they saw other people beating and kicking John Weingrad after Charlie had left the scene. Charlie was hopeful. He talked to his parole officer, who thought he had done everything that the prison asked him to do and that he was ready to be released.

CHARLES GAMPERO, Jr.: I had told them that even though there was other people involved and something happened after I left, I still take responsibility for the crime because I set-- you know, I put him there. I explained to them, you know, what my ambitions were when I went home. I explained to them what I have done during my incarceration. And they told me I'd receive a response in a couple of days.

NARRATOR: The parole was denied. The reason given was that since he was a violent offender, discretionary release would be contrary to the best interests of the community.

Judge FRANCIS EGITTO: It's more than I thought he would be in prison. I thought he'd be out by seven years, and maybe even earlier, because of the-- they had an early release program for a while.

Ofra BIKEL: But they didn't by then.

Judge FRANCIS EGITTO: As was sung by that famous star, "Que sera sera." I can't control them.

NARRATOR: It was just what the prosecutor had promised the victim's father seven years before, when they agreed on the plea. But by then, Joseph Weingrad wanted Charlie Gampero out of prison and wrote a letter to the parole board.

JOSEPH WEINGRAD: I wrote that it seemed to me that Mr. Gampero was probably only guilty of assault, and so the time that he spent in prison was enough. He shouldn't be spending 21 years for something that I don't believe he did.

NARRATOR: Charlie Gampero's next parole hearing will take place in October, 2004. There is also a new motion pending to vacate his sentence. If both were denied, then according to the structure of his sentence, he could spend another six years in prison.

JOSEPH WEINGRAD: No. That isn't the way the justice system is supposed to work in this country. It's not supposed to work that way.



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