(Right to Trial = high stakes legal gambling) Judge says "Justice" Department Forces Guilty Pleas with Overblown Charges

From [HERE] A federal judge said the Justice Department routinely abuses its power to bully defendants into giving up their constitutional right to a trial.

Judge John Gleeson, who as a federal prosecutor sent the late mafia boss John Gotti to prison, said in an opinion earlier this month that prosecutors are using the threat of decades or life in prison to extract guilty pleas even if the defendants' alleged crimes fall far short of meriting such long sentences.

Such tactics are "unsound and brutally unfair" and create "the sentencing equivalent of a two-by-four to the forehead," the judge said in a 60-page sentencing opinion on a New York drug case.

"The fact that they are business as usual doesn't alter the fact that these sentences should instill shame in all of us," Judge Gleeson wrote, saying the tactic will force some innocent people to plead guilty. Nominated to the federal bench by President Bill Clinton, Judge Gleeson has been a district court judge in Brooklyn, N.Y., for nearly two decades.

The long-standing practice has helped federal prosecutors garner an enviable conviction record. Currently 97% of criminal charges in all federal jurisdictions end in a guilty plea, which means the vast majority of federal criminal cases never go to trial.

Attorney General Eric Holder recently announced major changes to Justice Department use of mandatory minimum prison sentences in drug cases, saying prosecutors should use their discretion to seek fewer long sentences for nonviolent offenders.

Judge Gleeson praised those efforts but said the problems created by mandatory minimums are "small potatoes" compared with the problems with plea negotiations. While Mr. Holder's memo also included some cautions on using threats in plea negotiations, Judge Gleeson called the guidance weak and said it wouldn't stop prosecutors from using hardball tactics as "sledgehammers against the ever-dwindling few who have the temerity to ask for the trial the Constitution guarantees."

At issue is what lawyers call a prior felony information, or 851 notice—a legal warning that prosecutors intend to lengthen a mandatory sentence for drug offenses based on a defendant's prior convictions. Once prosecutors file the notice, the longer sentence, often life, is mandatory if the defendant is convicted. The law was originally intended to hit narcotics kingpins and hardened criminals, but the judge said it has been abused to coerce pleas because the 851 notice can trigger automatic sentences of decades or life. Prosecutors often threaten to file 851 notices in verbal negotiations conducted without a judge—leaving no trace in a written records.