the plea
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bruce barket
The Supreme Court teaches youre not supposed to be punished for exercising your constitutional right to go to trial.  That's fine for people who study out of law books. But every courthouse in the country, if you go to trial youre going to pay a price if you lose.

Tell the Gampero story.

Charles was charged with murder, depraved indifferent murder, in State Court in Brooklyn. The allegations were that he beat and stomped an individual to death. He was arrested, and the case was coming to trial. He maintained -- and has always maintained -- that he only hit the person once, that it was a fistfight, and he doesn't really know how the person died.

The trial was about to commence. In fact, the jury was going to be picked, and the court, on its own it seemed, persuaded Mr. Gampero to take a plea of seven to 21 years in prison. We've since found out that after Mr. Gampero had a fistfight with this individual, several other individuals came by and beat and stomped the person to death; turns out that he pled guilty to a crime that he didn't commit.

Did anyone know this before the plea?

It seems apparent that the police knew these witnesses existed, but they never disclosed that to the defense. The defense had some idea that something else happened after Mr. Gampero left the fight -- they weren't sure what and didn't seem to have the specific witnesses that they could call at the trial.

What's more problematic about this case is that the court, in persuading Mr. Gampero to take a plea, used what I would describe as a very, very, very heavy hand, telling him that he'd get convicted of murder; he'd go to jail for 25 years; that the court has seen this before. The court persuaded the D.A.'s office to offer a plea that Mr. Gampero would be out in seven [years], maybe less. The judge actually went as far as forcing Mr. Gampero's family into the courtroom to have his mother and his other relatives watch the verdict on a murder case that just preceded Charles's case. That verdict was guilty.

[Editor's Note: Read the court transcript of Charles Gampero's plea hearing.]

photo of barket

Bruce Barket is Charles Gampero Jr.'s new defense attorney and currently is working on getting his guilty plea withdrawn based on new evidence, the involuntary nature of Gampero's plea, and the ineffective assistance of Gampero's first attorney. Barket also has filed a motion to reverse the parole board's decision denying Gampero parole. Here, Barket offers a measured view of the judge's interactions with Gampero when he pleaded. He also talks about how most prosecutors handle plea bargaining, and defends the plea and its role in the justice process: "… we have tens of thousands of cases. They can't all be tried. You have to get people to plead guilty. If you don't, the system breaks down." This interview was conducted on Jan. 12, 2004.

If you've ever been in a courtroom where there's a guilty verdict in a murder, it's an extremely sad event for everybody involved. There's no joy there at all. The jury comes back; they don't look at somebody. One life has been lost, and with the jury's pronouncement of a guilty verdict, we all know that another life is now lost. And that was devastating.

Charles begged, through his attorney, to have the weekend to consider the plea offer. The judge said, "No, the prosecutors shouldn't have to work all weekend if this is going to be a plea." They essentially forced him to plead guilty at that point in time. Now Charles has been in jail for eight or nine years, and given the condition of the parole board, it's doubtful he'll be out for another five or six. …

The family got scared by witnessing the verdict in the previous trial?

Clearly. It's an intimidating process to begin with. You're going to go on trial for murder. You're going on trial for your life. You're not familiar with the entire process. We're taught to obey and respect authority. So when you walk into the courtroom, there's the person who you think is objective; who is fair-minded; who is not on the side of the prosecutor; who hasn't formed an opinion as to your guilt or innocence yet; who you know is going to preside over the trial; who, you learn from television and books and entertainment shows, has a great deal of control as to what takes place in the trial.

And this individual, that you look upon as almost a parent figure, is telling you in the harshest terms possible, "You had better plead guilty right now, son, or you're going to jail for the rest of your life." … If you say no to this man, how happy do you think he's going to be with you over the next two or three weeks, while he's presiding over a trial where he has clearly already formed an opinion as to your guilt or innocence? He thinks you're guilty, and he's told you as much.

What did the judge base his assumption on?

The judge? Well, I wouldn't speculate as to why the judge did what he did, other than to say the dockets in Brooklyn were, and continue to be, extremely heavy. The court's individual judges have an extraordinary amount of pressure to move their cases. If they tried every case, the system would break down. They have to get guilty pleas. I'm assuming that this judge did to Charles what he's done, and [what] other courts do to defendants on a routine basis in our criminal justice system, particular in the busy municipal courts in the major cities like New York, Boston, Washington, and so forth.

One hears also about prosecutors pressuring people to take deals.

Actually, prosecutors generally don't. It would be a sign of a weakness for a prosecutor to say, "Come on, please take a guilty plea." They don't. Prosecutors, if they're good and have any experience at all, what they'll do is they'll make an offer and they'll do just the opposite. "Don't take it, I'll withdraw it. I'm happy to try this case, I think I'll win it, every day and twice on Sunday."

What ordinarily happens is, if there's pressure brought to bear on an individual to take a plea, it comes from the court and/or the individual's lawyer, and sometimes from the court through the lawyer. The judge will say to the lawyer in the back, privately, "I think your guy is guilty. I think he's going to get convicted, and if he gets convicted, I'm giving him the most I can possibly give him. Go out and tell him he damn well better take a plea." Then the attorney goes out and delivers the bad news to the client.

What was unusual about this case is the judge, sitting on the bench with the court reporter transcribing what he was saying, was telling Mr. Gampero essentially, "I think you're guilty. I think you better take a plea, and if you get convicted, I'm going to give you everything I can give you."

So you are saying that the judge made him lie about his guilt?

Well, I wasn't there. Who knows what the truth is? So I don't want to say that the judge knowingly made Mr. Gampero lie. That's not fair. But [you have to establish] the elements to every offense. Mr. Gampero can't [just] stand up and say, "I'm guilty." The court wants to hear the reasons why you're guilty. "Tell me what you did."

In a robbery case, it's easy. "I stole money from this individual," or "I took money without permission from this individual." In this kind of murder case, it's much more difficult, because what Mr. Gampero has to do is he has to provide the court with sufficient facts that make out the crime to which he's pleading guilty. In this case, it was manslaughter, so him saying "I punched the person once," that's not adequate. That's not a crime, or it's certainly not manslaughter. It might be a misdemeanor assault, but it's not a homicide.

So when confronted with that, the judge knew that that statement by Mr. Gampero didn't warrant a guilty plea. It should go to trial if that's the truth. So the judge … says, "That's not right. You got to tell me more." Mr. Gampero wants the guilty plea, so he says more. Where [does] the truth lie?

This happens all the time in our judicial system. People say "I did X" because they want a reduced plea. Whether X is what they actually did, who knows? I'm not advocating it, but that's the way it works. Anybody who tells you different isn't telling you the truth.

… You have the defendant against the judge and the prosecutor. It is rare, especially in the state system, where a court is actually [objective] and comes across as objective. Any attorney with even a little bit of experience can quickly sense the judge's bias, which is frequently, almost exclusively, in the favor of the prosecutor. So we all know, as we walk into court, that the judge doesn't really presume our client to be innocent.

So the defense lawyer is at a disadvantage?

Right, but the judge is allowed to be a human being. The judge has read, presumably, something about the case beforehand; certainly heard something about it. The judge subjectively can form whatever opinion he or she would like, and that's fine. As lawyers, we all know that that occurs.

What the judge ought not do, in my view, is express that view in any way formally to anybody. It's one of these instances where perception is reality. If you walk into court and the judge, regardless of what's going on in his or her mind, portrays the court as being objective and fair, you'll feel good about the process. You'll feel confident about the way the whole thing works. If the rulings are reasonable and fair, based upon the law, and if the court calls them as the court sees them, then we're all in pretty good shape.

The trouble is, the judges, because of heavy dockets or whatever reasons, let their bias out. It comes out in subtle ways sometimes that only the attorneys will pick up on. Frequently it comes out in ways that aren't so subtle, where anybody in the courtroom knows exactly what the judge is thinking.

In this case, the judge didn't leave much room for ambiguity; he stated it explicitly. …

What did the prosecutor know about Charles's case?

I don't know. I would bet the prosecutor subjectively believed that Charles was guilty of murder, and that they were giving him a break by letting him plead guilty to manslaughter. That would be my guess.

Would you be surprised if you knew that wasn't true?

If the prosecutor thought that Charles was innocent of murder and was about to put him on trial for that, subjectively believed that? Yes, I'd be surprised by that. Very little would surprise me about prosecutors and bad faith. But one thing I do credit most of the people in the system with is a kind of a subjective good faith. In other words, given the world as they perceive it, they act in the way they think is fair, and if somebody you think is guilty of murder, then it's no holds barred to get him.

But they ignored a lot of testimony.

"Ignored" is not the right word; perhaps didn't credit the testimony. Prosecutors have a duty to disclose exculpatory evidence. If there's evidence an individual did not commit a crime, prosecutors are obligated to turn that over to the defense. That sounds real simple and straightforward. The difficulty becomes, What is that evidence? When is it evidence of actual innocence?

Well, prosecutors frequently get problems, where a witness looks at a lineup and says, "I don't know if the person is there or not." Now maybe the witness just didn't get a good look at the perpetrator, and the perpetrator is sitting in the lineup in the defendant's chair. Maybe they did get a good look at him, and they don't see him. So when the witness says, "I don't know if the person is in the lineup or not," is that exculpatory, or is that evidence that the individual did not commit the crime? Does that have to be turned over? The prosecutor would say, "No, it's got nothing to do with it." The defense attorney will say, "Of course we want to know about that."…

[So in this case], the prosecutor probably thought the evidence existed, but that the evidence did not really prove Charles's innocence; it was just some evidence that could be explained away in some fashion. Those witnesses that saw other people beat this person were mistaken, they're lying, they're not being truthful, they're not credible. So it's not really evidence of Charles's innocence. It's just kind of smoke or defense tricks or something, so they're not obligated to disclose that.

They could rationalize anything.

I think it is [a rationalization], yes. But subjectively, they think they're doing what's right, even though they're violating what I would view as fairly fundamental rules of how prosecutors are supposed to operate. …

You're currently working to get Charles's plea withdrawn. What are you basing your argument on?

We're basing it on essentially two prongs. One is that the plea was not voluntary, that the court's interference with Charles's decision to plead guilty was so heavy-handed and so improper as to invalidate the voluntariness of his decision. Charles didn't really plead guilty because he wanted to; he pled guilty because he thought he had no choice, because the court was telling him "You have to plead now." He didn't get the weekend to think about it. That's one prong.

The other prong is that we have since found about three witnesses who have come forward and given statements to say that other people were present when this person [the victim] was on the sidewalk, did walk up to them after Charles had a fight with them, and did beat and kick the person, which is very interesting.

I know Charles fairly well now. He's a good and decent human being. He probably thought that he caused this person's death, albeit accidentally. I mean, it's happened before, where there's one punch, somebody falls and hits their head and they die. It's a tragedy, and the individual who hit him feels unbelievably horrible.

So Charles has spent the last four, five, seven years of his life believing he caused the death. Now, whether he believed that he was guilty of murder -- I don't think he did. But he certainly believed he caused the death. We now know that he probably didn't even cause the death. So even a statement to the court that "I punched him once and that caused his death" probably wasn't true. And he didn't know at the time, because the prosecutors withheld some evidence. …

So, hopefully, between those two prongs -- the new evidence that we found that Charles is innocent, and the involuntary nature of the plea -- will justify reversing the conviction. …

Charles's lawyer at the time knew there were other people around at the time of the incident.

He knew that there were other people around. He wasn't certain of what they were going to say. They didn't have the witnesses to really prove it, so he should have looked into it, but he didn't. … I would hope that the lawyer did everything he thought he could do. But those witnesses were there to be found, and I don't know why they weren't found.

Is this unusual?

It's not an unusual case, I'm sad to say. It was unusual in that the heavy-handed comments of the court were made on the record, where we all could read them. It's not unusual for a judge to say those kinds of things in chambers to the attorneys. I've heard them frequently. It's up to the attorney to say, "You know what, Judge? Do whatever you think is right. When this case is over, you don't get to decide it; the jury does. We're going to go to trial."

That's dangerous.

Oh, it's risky. Because if you get convicted, or your client gets convicted, you go to jail for a long time. …

What's good about the plea bargaining system, besides efficiency?

I think there's a lot good about it. I think plea bargaining is an invaluable part of our system. It tempers justice with mercy, if you will. There are times when somebody is guilty -- a petty larceny, for example. You go into a store and you shoplift. Let's say you steal something that's $1,010 in New York, which makes you guilty of a felony. You lose your right to vote; you could go to jail for four years; you can't get a job; you have trouble becoming an attorney or getting other professional licenses.

Suppose you're someone who, for whatever reason that day -- you were with friends, they were goading you on, maybe you're doing it as a stunt. Whatever you're doing, it was a completely stupid and aberrational act on your behalf. Prosecutor looks at that and says, "You know what? We don't think a felony is the just result to ruining the rest of your life with it. We think that, in this particular case, a fair result is we'll reduce it to a misdemeanor, or maybe even to a lesser offense than a misdemeanor, just a plain offense. You'll pay a small fine, you'll do some probation, and you'll go on with your life." If you want to get a license you can. If you want to vote, you can. You're not going to go to jail, and that's a fair and just result. That wouldn't be possible if it weren't for plea bargaining.

What's bad about it?

I don't know if there's anything bad about it, conceptually. I think at times it's abused, in that it extracts guilty pleas from innocent people. Leaving Charles aside for a second, who might have subjectively thought that he killed this kid in some way -- there are times when people that are innocent, absolutely innocent, plead guilty to charges they did not commit, because they can't afford the risk of going to trial. And that's a bad thing. …

What about the truth? In many of these cases, when people plead guilty, we never know what really happened.

Well, no, you don't. But that's part of our adversarial system. What's supposed to take place is, through the course of a trial, the truth comes out. But really what it ends up being, frankly, is a sporting contest, to some degree, between lawyers. If you have two good, well-prepared lawyers with the resources to try a case, and they play fairly, there's a good chance the truth will result from that. I don't want to say it's rare, but that situation is not as common as it ought to be. …

There are lawyers who practice in every courthouse in the country who don't try cases, and everybody knows it, except for the clients. So when they walk in, if you're a prosecutor you look over and you say, "You're not trying that case. I know it; you know it. Here's the offer, take it, don't take it; today, tomorrow, whenever, you're never going to trial, because we've been around for five or 10 years, and this lawyer, in the 10 years that I've seen her or him, hasn't tried one case. I don't think they're starting with this one."…

The legal system is the one area where our country provides for free services, but doesn't let the individual have any say at all in who they select. If you are on Medicaid or Medicare, you can go to any doctor that accepts Medicaid or Medicare payments, right, and you get referred to different individuals, right? Or if you get housing, you get different housing units, you can go down the list.

Well, guess what? With legal services, you get the lawyer the government picks for you, regardless of whether or not the person is good, or you like them, or they speak to you or they won't speak to you. … Then the government does what the government does, which is seriously underpay the lawyers. So people who are accepting assignments to work for the government essentially, and represent individuals, are the least paid individuals in the courthouse.

So you have to ask yourself, "Are the best lawyers who can command the best fees accepting these cases?" Of course not. Does the client have any say? Is there any incentive for the lawyers to work hard, earn a good reputation, so that they get more cases? Not really, because they're getting the cases from the court, not from the client. …

As a defendant, are you punished for choosing to go to trial, rather than accept a plea bargain?

Sure. Of course. I mean, you're not supposed to be. The Supreme Court teaches us that you're not supposed to be punished for exercising your constitutional right to go to trial. That's fine for people who study out of law books. But every courthouse in the country, if you go to trial, you're going to pay a price for it if you lose.


Because we have thousands, tens of thousands of cases. They can't all be tried. You have to get people to plead guilty. If you don't, the system breaks down.

It's alarming that over 90 percent of cases result in a plea.

I don't know if I'd agree with that. I don't know that just because 90 percent of the cases result in a plea, therefore the system is bad. I think you could build in safeguards and structures within the system that would allow for a large number of cases to be disposed of without a trial, and have it be somewhat just. We just really haven't struck that balance yet.

Once you go before the parole board, a guilty plea haunts you, doesn't it?

Well, with people who plead guilty, consistency is what the courts are looking for, right? If you said you were guilty to the court and you explain why, well, you need to continue to be consistent. You need to continue to sing the same tune. Where it really haunts people are individuals who are wrongfully convicted and they go before the parole board and they say, "I know I was convicted. I'm telling you what I told everybody else the day I was arrested -- I didn't commit the crime." Those are the people that are confronted with a dilemma they can't solve. Because either they betray themselves or betray everything they fought for years, and beg for mercy for something they didn't do -- and hopefully they get it -- or they continue to stand upright, and the system continues to beat them with the stick of incarceration.

When you have clients in that situation, what do you tell them to do?

I know what I tell my clients. Out is out. Out is out.

Get out.

Get out. 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 is 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 crime they didn't commit and get much more time. I'm not shy about trying cases. I'm not shy about fighting government. But out is out. That's a big thing. …

I've said to individuals, "Who holds the key to your jail cell right now? And they'll say, "The prosecutors, the courts, the police, the power of the government." I'll say, "No, you fool, you do. Put the key in the lock and turn it. Walk out. Live your life." You can't look at the criminal justice system as some kind of arbiter of truth. It ought to be that; it's not. It's simply a clearinghouse for people who go to jail, who don't go to jail. That's all it is.

If you've been in jail, as one of my clients has, for 10 years, and they're looking at another 15 or 20 before they're up for parole, and I've worked out a deal where the government has said, "OK, we'll let you go now," I look at that as, we beat them. Because you know what? The government doesn't say that to everybody who has 20 years in prison. They don't let everybody out after 10.

You have to bring them to the point where they're willing to say, "OK, we'll let your client go now." Well, as soon as the government says that to one of my clients, in my view, we've won. Whatever words we have to mouth to get from Attica State Prison to home, I would strongly encourage them to do.

That being said -- there are people like you describe that won't do it, and insist that they're innocent, and will only walk out of jail if everyone around them admits that they're innocent. I respect that. I do. I have a couple of clients like that that I'm fighting for. But out is out. Out is out. …

What is your hope for Charlie?

I want him out. We filed actually another entire motion attacking the parole system in his case, asking that the parole board's decision denying him parole a year and a half ago be reversed. So I want to see him be released from prison. Period. I think that the court should allow him to withdraw his guilty plea. I think that the parole board should have granted him parole. He's served now eight years of a seven to 21-year sentence, with the court telling him he'd be out in seven or less. It's time for Charles to be home with his family.

… Nobody involved in the system really believes ... it is necessary to incarcerate him anymore. The judge who took the plea said on the record, "You should be out within seven years or less." They thought that was more than enough time for him to serve. He's now served eight. Let him go.

It's only because the political climate has changed in the last eight years. We have a parole board now that doesn't let anybody go, and he's still there. So if we can get him out by withdrawing his plea, great. If we get him out because the parole board says, "You know what? We've re-thought it and we think it's appropriate to grant him parole," fantastic. If we get him out because the court says, "We'll not let him withdraw his plea, but we'll reduce his sentence," fine. Any of those methods are OK with me. He deserves to be released.

Do you think he's guilty?

It seems apparent to me now, looking at all the evidence, that he's absolutely innocent of murder, manslaughter, or any kind of homicide. He may have been guilty of a misdemeanor assault, but that's all. Certainly there wasn't adequate evidence -- and there's not adequate evidence now -- to convict him now in front of a jury. I think that he would have been acquitted back then. … There was nobody that would be able to testify that Charlie stomped and kicked him and so forth. It didn't happen.


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posted june 17, 2004

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