Defendants are punished for seeking their right to a trial all the time

Defendants are punished for seeking their right to a trial all the time
Photo by Ed Jones/AFP via Getty Images

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In February of 2019 a man named Christopher Ransom walked into a T-Mobile store in Queens, New York, brandishing a fake gun in an attempted robbery. His associate Jagger Freeman is alleged to have been standing as a lookout across the street according to the narrative of events laid out by prosecutors at trial. When the NYPD arrived they say Ransom rushed out of the store at them, at which point they shot forty rounds in eleven seconds, in the process killing one of their own and wounding another cop.

Watching from outside, Freeman, who was unarmed, simply walked away and went about his business. This month he was nonetheless convicted of second degree murder for the death of the cop in question and sentenced to thirty years to life despite having shot no one. (Gothamist has a good report on the case here)

This is possible because of so-called "felony murder" laws, which I’ve covered in here a number of times before. Writing for Hell World back in May NYC public defender Shane Ferro described them like this:

“New York has what is called a ‘felony murder’ rule, which means you can be convicted of murder if you are an accomplice in a felony in which someone is killed, even if you did not kill the person or mean for the person to get killed.”    

As wide a circle of people as the law can implicate
I wrote on the epidemic of wage theft in the country down below but up first today Shane Ferro joins us to write on the passing of Kathy Boudin and the scourge of felony murder convictions. Previously she wrote for Hell World about the conditions on Rikers Island and on
The rare good apple in the bunch
When a cop decides to break ranks with his fellow gang members

“Since 2010, at least 22 people nationwide have been charged with felony murder for deaths directly caused by police,” a Buzzfeed story from last year found.

"Felony murder" is interesting to me because it's sort of the inverse of "qualified immunity," which is another one of the most maddening aspects of the system I often rail against in here. Qualified immunity ensures exceptionally broad leeway for police to kill and maim, while felony murder makes citizens responsible for deaths they maybe had nothing or very little to do with at all.

The dichotomy here is a good example of the old Wilhoit maxim about conservatism amounting to “in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect."

In this sense cops are the most protected and revered of in-groups we have in this country. An entire special class of sainted and unaccountable warrior priests.

The out-group is of course all of the rest of us who are actually subject to the rule of law and punishment.

Think of it this way: A common sense way of thinking would be "A person who kills another should be held accountable for that killing." But instead that simple concept is grossly perverted to almost entirely unbind conservatives (cops), with qualified immunity, while further binding the rest of us with the threat of a felony murder charge.

Sending someone to jail for maybe the rest of their life just for being tangentially proximate to actions taken by someone else is bad enough, but there was another aspect to this case in Queens that I find just horrifically profane that should also be offensive to the soul of anyone who gives half a shit about our cruel and inhumane justice system.

During sentencing Freeman was subject to what is known as the "trial penalty." This is usually just an unspoken every day terrible thing that happens as a matter of course to every poor son of a bitch who gets jammed up, but in this instance the judge actually admitted out loud in court that this is what was happening.

“You rejected all attempts to resolve this case and you demanded your trial and you got your trial,” Judge Kenneth Holder said scolding Freeman for having the temerity to exercise his right to a trial under the Sixth Amendment.

In short: How dare you waste my time by not admitting guilt and accepting a plea deal, and instead try to prove your innocence and save your life?

[For more basic information on felony murder and the trial penalty read here and here.]

It's been a while since I last checked in with Emma Goodman, an attorney at the Legal Aid Society in New York, so I called her up to talk through the concepts of felony murder and the trial penalty. We also talked about the status of the "clean slate" bill she has been trying to get passed in New York for a couple years now, copaganda, qualified immunity and a lot more. Enjoy (?)

I spoke with her last year about her office suing the city over conditions in holding cells.

It’s a simple thing to do to be less horrible to human beings
People don’t care what’s happening behind the scenes

And the year before about habeas corpus violations in the city.

It’s why I’ve always hated the NYPD
This is how they act
Photo by Andrew Lichtenstein/Corbis via Getty Images

Last time we talked you were telling us about a clean state bill you’d been working on. Where does that stand?

Clean slate has been an endless source of excitement and frustration for me and other people working on it in New York. The bill did not pass the full House in June, but came extremely close. It passed in the Senate and we thought it was going to pass in the Assembly, and then it just didn’t, once again. This is the third time in two years that’s happened, where we think we have the votes, and then it just doesn’t happen. What happened this year was it was an election year and the Assembly freaked out about “tough on crime” narratives, and bought into those. They decided they didn’t want to pass anything that could be seen as helping criminals essentially.

"Liberal" Democrat-controlled New York can’t even do minor shit like this.

It’s not this crazy left idea. The idea is you give people an opportunity to get a job, to get housing, so they can support themselves and their families, decades after they’ve served their time.

Remind us of the substance of the bill again?

Clean slate is a bill that would automatically seal people’s records if they have been out of trouble for a certain amount of time. It would seal all misdemeanor convictions if people have been out of incarceration for five years and have no new convictions in that time, and all felonies, except for sex offenses, if they’ve been out for at least seven years. And you have to be off supervision. So people who are on parole for life would unfortunately never get their records sealed, but if someone was on parole for twenty years and they get off they would get their record sealed.

It sounds like this bill, which you are very excited about maybe getting passed, and I don’t mean this as an insult at all to you... but it feels like such a small thing. And we can’t even do something that’s moderately good?

Yeah I know what you mean. I think it would be groundbreaking in the sense that it would give people opportunities, and be a boost to our economy. But it’s not getting at the root cause of the problem.

[One in seven New Yorkers have a conviction history and 400,000 are arrested on criminal charges a year according to Clean Slate New York]

After those people serve their time we discriminate against them for the rest of their lives. If we could fix that root issue we wouldn’t need a clean slate, but here we are.

Of course. I’ve only been paying attention to what’s going on in San Francisco a bit, it seems like they just fired a bunch of the reformers they had in there with the new DA coming in, and are getting back to “tough on crime.” There’s this lie that Democrat-controlled cities defunded the police at some point and did all this lefty shit. It’s just a blatant lie, but they’re still behaving defensively and ceding the narrative to that lie. Is that true in New York as well as you see it?

That’s definitely what I see here. No matter what the mainstream Democrats do, which is never really that progressive in my opinion... Here it’s the New York Post contingent. They’ll publish articles saying they’ve done these crazy things. Then the mainstream Democrats will say, "Oh no, we’ve gotta back down because we won’t win election next year because of all this stuff in the Post." When they haven’t even really done anything in the first place. It’s maddening. Especially in New York, but I’m sure everywhere.

Wasn’t there some light bail reform in New York a couple years ago there?

It was good, and very needed, but everybody freaked out because, really, the media did an excellent job of making it look like bail reform was making crime spike. It just wasn’t true. The next year they rolled back some of those reforms. Then again this year they made some more amendments for even weaker versions of bail reforms, so we’re getting closer and closer back to where it was when they passed the reforms a couple years ago.

Every time there’s a notable crime, the shooting on the subway a couple months ago, people say “this is what happens when you let criminals out.”

And it’s almost always not true the way it’s written about in the paper. Very often someone will get out of jail and they’ll say "They let this person out because of bail reform," but really that person was eligible for bail and the judge just didn’t set bail because they didn’t think it was necessary. But people believe it. It doesn't matter if it’s true after a certain point. They believe the headlines.

People overwhelmingly show up to their hearings right?

Yeah. The risk of flight for bail… The idea you have to have someone held in on bail because they’re not going to show up is almost never the case. People don’t flee. It ends up increasing the amount of time you serve. Nobody gets away. So it’s stupid to flee.

Your average person isn’t Jason Bourne or whatever.

Right. There’s maybe like the one in a million person who thinks I’m gonna get away! But it’s not really how the real world works. People miss court dates because they’re sick or they don’t have enough money to pay for the subway, or they’re having mental health or drug issues, not because they’re fleeing the system.

What’s going on at Rikers? There’s been something like a dozen deaths this year?

Yeah, already. There was just another one yesterday. The same thing that’s always been going on, I guess, which is hard to say considering the huge amount of advocacy that people have been doing to shut Rikers down. They say they’re going to shut it down, but they haven’t yet, and people are dying pretty regularly.

It’s not enough for a person being held on Rikers Island to simply testify to what goes on inside
Honestly nobody cares and nobody is going to believe them

I thought there was a strong push to shut it down that was working?

They’re saying they’re going to shut it down. One of the things that’s happening in New York is, in order to shut Rikers down, that means borough-based jails. The idea was to have a jail in each borough, where people would be taken, which makes sense because everyone goes to the courthouse in their own borough. They’d be closer to the courthouse.

I assume that idea was met with pushback from the locals wherever they were supposed to go?

Exactly. People say "I don’t want a jail in my neighborhood." Every neighborhood that was potentially going to have a jail, just like every neighborhood that was potentially going to have a homeless shelter, people freaked out. So it’s delayed everything. Predictably.

The suffering and unsightly are taking up space without paying
They are diminishing value

There’s been a highly publicized thing ongoing in Boston with people living on the streets, struggling with addiction, and every time there’s a proposal to build housing for these people it gets shut down because no one wants it near them.


So there was this egregious case in Queens recently, which is a pretty good illustration of felony murder laws. I posted something about felony murder yesterday, and some guy was like, "I’m forty years old and I only heard of this recently. It sounds like something out of dystopian fiction." You might say this dude is kind of naive, but I don’t think a lot of people are aware of it in general. Describe it in your words if you don’t mind.

Felony murder is essentially the rule that if someone is involved in the commission of a felony, and somebody gets killed during the course of that felony, then they can be liable for the person’s death even though they weren’t the one that committed the murder. What happened in this case was someone was allegedly involved in the planning of a robbery, and they were the lookout. Then somebody else went into the store with a fake gun. A bunch of cops showed up and started shooting and they shot a cop. The lookout has now been convicted for the killing. Depending on who you ask, he was allegedly involved in helping this other person. I don’t know how much he was involved. Enough that the jury felt, I guess, that he knew what was going to happen and should be responsible for anything that came after that. Felony murder says that you should be responsible for all of the potential consequences of your actions.

You should foresee everything that could possibly go wrong, including the police shooting one of their own.

That’s what is so wild. The number of deaths where the police have killed another cop, and then other people have been charged under felony murder, it’s just…

It’s like the “look what you made us do” law.

I think what it comes down to, which is a classic police trope, is “It’s not our fault, it’s your fault.”

It’s never their fault.

So there has to be some way if they kill somebody they can blame somebody else for doing it.

It seems to me that felony murder is sort of the inverse of qualified immunity. Qualified immunity means that when there is police wrongdoing, unless the exact set of circumstances in question happened before, there’s no way cops can be expected to know ahead of time that their behavior is illegal. And then felony murder, on the other hand, does the opposite. It says a person, unlike a cop, should be like Doctor Strange or some shit. You should be able to see every possible iteration of the outcomes, and if you don’t, that’s your fault.

It’s funny the way you put it. The cops whose job it is to predict situations and react properly to different situations, theoretically, aren’t held responsible if they don’t predict things. Whereas a random person should be able to see the future, and be responsible for anything that happens. It is classic American police exceptionalism. It also comes back to the cops saying it’s not my fault. These are two different ways for the cops to do something bad and say it wasn’t their fault. "I didn’t really do it. Somebody else is responsible."

Both felony murder and qualified immunity give the cops a get out of jail free card so to speak. Speaking of which I saw the dumbest fucking take by some right wing moron yesterday where he was trying to excuse the inaction of the Uvalde cops by saying they were scared to act ahead of time because they were worried about getting sued. And that the Fifth Circuit of all fucking things are too restrictive in what they let cops get away with!

People say stuff like that, and it’s not true, it’s absurd, and people will think, “Oh, the courts are too restrictive on police. We really have to do something and make sure the courts aren’t so anti-police. Let’s get more pro-police people on the bench!” When it’s obviously not true in the first place. It kind of feeds into what those people want to happen.

It’s like what we were talking about to start out with Democrats. Everything gets flooded with bullshit, and the reflexive position everyone returns to, Republican and Democrats alike, is more money and more leeway given to cops to do whatever. Just because they’re afraid of people lying about them being anti-cop.

There’s a lot of horrible shit in this Queens felony murder case. But as cynical as I am, and as much as I know how fucked up this shit always is, there was a line where the judge scolded the guy for going to trial. “You rejected all attempts to resolve this case and you demanded your trial and you got your trial,” the judge said. Then he gave him thirty years. That’s another thing that I think a lot of people might not know about as well, which is that defendants are punished for seeking their constitutional right to a trial all the time. Is that right?

Definitely. It’s extremely common. We call it the trial penalty. Basically what happens in New York, in my experience, and across the country, is that people will be offered deals before trial. It’s always something less. And if they don’t take that deal, and take the case to trial, and they get convicted, the judge gives them a much harsher sentence than if they took a plea beforehand. That always happens. It’s used as a way to intimidate people into taking pleas, and it almost always works. It will be something like two to seven years versus fifteen to thirty years, and they’ll say "If you take a plea you’ll do five years and you’ll be out in three and a half and do some parole and you’ll be done. Whereas if you don’t take a plea you’re gonna get the thirty years."

The guy in question here was offered twelve. He was probably like "That’s bullshit, I didn’t kill anyone."

"I didn’t do anything. I have a little kid." I’ve represented thousands of people, and now I represent people that have convictions that are old, and are still dealing with the consequences of their convictions because of the perpetual punishment of their criminal record. So many of those people just either are completely innocent, or didn’t do as much as they were charged with, and they took a plea because they were scared about what would happen if they went to trial and lost. Because they knew the system was stacked against them. It’s a way to feed the prison industrial complex. It is good for everyone except for the people that you and I care about.

There’s almost no federal trials anymore. Something like only 3% of federal cases go to trial anymore. Does that sound right?

I would believe that but I don’t want to quote the statistics.

[According to a 2018 report by the National Association of Criminal Defense Lawyers: “...after a 50 year decline, fewer than 3% of federal criminal cases result in a trial. With more than 97% of criminal cases being resolved by plea in a constitutional system predicated upon the Sixth Amendment right to a trial, the fact of imbalance and injustice in the system is self-evident.”]

Cases don’t go to trial because people are scared. People do get deals, but what happens is, when I practiced in Manhattan for years, the DAs would overcharge. So they would charge people with ten different counts. More than half of them they could never prove at trial. But that doesn’t matter. Then they would offer something they could maybe prove at trial, but they’d say they'd give you two years instead of five. And it’s like, “Well, they could probably prove this count at trial, and you will get a worse sentence, maybe we can try to get probation so at least you’re not doing any time.” You know? But they’re overcharging to make you scared because, I don’t know, what if the jury buys the charges, now you’re looking at fifteen or twenty years instead.

And with the plea deal they’ll “do you the favor” of taking off the table the bullshit charges they themselves probably know they couldn’t prove.

That never should have been there in the first place.

It’s a fucking casino man.

It’s funny you say casino, because the DA will call and be like, “Doesn’t your client want to take a deal?” This isn’t a deal! They’re going to jail. This sucks. But that’s how they talk about it because to them it is a game.

A right to a trial is one of the basic constitutional rights. The idea that in asserting that you would be punished for it is profane to me. I don’t know, it offends the spirit in such a visceral way to me. “Oh you think you deserve to be judged by a jury of your peers to determine whether or not you did this? Fuck you you’re going to jail for ten extra years now for wasting my time.”

The first trial I ever did, it was a guy who had been selling art he had made on the street. They said he was illegally selling it because it wasn’t his art. It was. It was absurd. He was like seventy five years old this poor guy who got arrested and they took all of his art away. We took it to trial. He was going to get community service if he lost, but even that… So we showed up to the courtroom and the judge said “Why are you wasting my time with this? Why are we here? Why are you not taking a plea? This is stupid I have other things to do.” Then we started talking about the case and he said “Oh, this is really interesting.” It was a bench trial and we won and he said “Ok I see why you took it to trial.” But we had to convince him that it was worth his time to do this trial because he assumed it was a waste.

If we were to be generous here, the idea is that there’s not enough courts and lawyers to take every case to trial and that it’s in the best interest of the system to streamline things.

Judicial efficiency.

Another way to not clog up the system would be to stop making so many bullshit arrests right?

Stop arresting people and stop overcharging people for stuff you know you can’t prove anyway.

Some old lady selling tortillas in the subway or whatever doesn’t need to be arrested and processed. Mandatory minimums come into play in all of this too with the trial penalty right?

The sentences are just pretty significant. Usually before trial what you’re offered is a lower count. It will be a lower plea on a lower count. If you are convicted of the top count if you decide to go to trial the minimum sentencing on that might be much more significant because it’s a higher charge with a higher penalty.

They’ll often charge something as a violent felony, even though they know it wasn't violent, and they’ll offer you a non-violent. So you don’t end up with what’s called violent predicate status if you ever get arrested and charged with another felony in the future. That increases your penalty. They play all these games with the sentencing laws to intimidate you into taking a plea.

Certainly the people ensnared in the system learn about how it is pretty fast, but what percentage of people would you guess even know this is how the world works?

It’s wild to me but I think a pretty small percentage. I was just saying the other day that I think a lot of people really believe that the police are kind of all-knowing. And if there is a situation where a crime is committed, the person is found, brought to the court, and prosecuted for exactly what they did, everybody knows they did it, and then they serve the appropriate sentence for it. It’s all done equally and fairly. I think people have this idea that it works that way. It just doesn’t. It could never work that way. Our society is way too screwed up for it to ever work that way anyway because we would never police certain neighborhoods the way we police others. It’s never going to be equal.

I think we talked about this before, but a lot of that is probably Law & Order and shit. Making the cops look like, although they’re flawed, they’re doing their best.

So anything else?

I think it would be great if more people knew that these things were happening. I don’t know if it will change things, but some states have gotten rid of the felony murder rule completely.

It’s weird that New York still has it. There are only a couple of blue states that still do. New Jersey maybe.

New York is considered this liberal bastion, but from my experience, and what I understand about other states, it’s actually more pro-law enforcement than maybe anywhere else.

Certainly has one of the biggest armies.

Yes, several smaller countries’ armies have less money and fewer resources and fewer soldiers than the NYPD. It’s this huge, extremely powerful mob.

That’s one more thing about the case in Queens we’ve been talking about. Since a cop was killed, the courtroom was filled with cops the entire time, which is certainly going to put a finger on the scale for the jury and the perception of the case in the media.

It’s pretty devastating that [Freeman] keeps saying “People keep calling me a cop-killer. People keep telling my daughter I’m a cop-killer. I wasn't even there.”

Now he’ll go to jail with the reputation of a cop-killer and I’m pretty sure that’s not a good thing to be in the eyes of the guards and so on.

They’ll see it. They’ll see what he was convicted of. That will definitely be very bad for him.

There's one thing here though. Since the judge actually said out loud, essentially, you should have taken a plea, this is your fault for going to trial, it may mean he has at least one thing, maybe some others, to bring up on appeal. So I hope for his sake he does not actually serve thirty years upstate.