"G" is for Guilty?

In titling this post "G" is for Guilty? I inserted the question mark to indicate there can be an ambiguity about "guilty" in criminal law that is rarely discussed in crime fiction.

All readers of crime fiction and, hopefully, the general public know that in jurisdictions following British legal principles such as the United Kingdom, Canada, United States, Australia and New Zealand a person cannot be found guilty of a crime unless the prosecution has proven to the court that the accused is guilty beyond reasonable doubt. It is an intentionally high standard.

Every accused, a person charged with a criminal offence, starts the legal process presumed to be innocent. Rumpole of the Bailey may have expressed it best in crime fiction by his oft repeated expression, usually after glasses of plonk at Pommeroy's, that the principle of the presumption of innocence is the golden thread at the heart of British justice.

The ambiguity of the question mark in the title to this post starts with the challenge faced by every defence counsel when there are strong facts presented in disclosure by the prosecutor that would show the accused is guilty of a crime but the accused advises the disclosure is inaccurate but can only provide weaker facts.

For Rumpole the situation is simple. He lives by the principle "never plead guilty".

Defence counsel will set out the odds are against being found not guilty at trial are grim in such circumstances but will not advise the entry of a guilty plea unless the accused is prepared to admit the facts necessary for a finding of guilty.

Adding to the mix may be a plea bargain offered by the prosecution that a guilty plea early in the process or to a lesser charge would mean a significantly lower sentence.

In The Guilty Plea author, Robert Rotenberg, a practising criminal lawyer in Toronto deals such a difficutl situation. As set out in my review:

    The evidence is so formidable that, for the first time in my crime 
    fiction reading, DiPaulo explores a guilty plea with his client. A
    plea to manslaughter and a few years in jail is an alternative to be
    considered when a 1^st degree murder conviction means 25 years 
    in jail. DiPaulo treads a delicate ethical path in negotiations on a
    guilty plea when Samantha has not admitted killing her husband.
    To plead guilty requires an admission of guilt. I have had
    numerous clients agonizing as Samantha did over whether to
    plead guilty when they did not admit doing wrong.

You will often see judges in real life court rejecting pleas when an unrepresented accused tries to enter a plea of guilty while saying I am only pleading guilty to get it over with today.

Adding to the mix can be legal interpretations of the facts. Did the accused in receiving government benefits that it was determined for which the accused was not eligible commit civil fraud or criminal fraud or just make a mistake? The accused's actions were wrong but were they criminally wrong.

While prosecutors will disagree defence counsel often maintain accused are over charged in the number and seriousness of offences for a given set of facts. The accused is guilty of something but is it the charge or charges laid. A skilled defence counsel can ensure through negotiation with the prosecutor that a guilty plea to the appropriate charge with a reasonable sentence takes place.

Michael Connelly's lawyer, Mickey Haller, is one of the few fictional lawyers to regularly make deals for clients.

Dean Abernathy in Felony Murder by Joseph T. Klempner (1995) is another front line defence counsel who deals with the challenges of guilty pleas.

To add even more issues to the mix in Canada the police and Crown Prosecutor can for minor offences, if the accused is prepared to admit they are wrong though they do not plead guilty, refer the charge to alternative measures. Upon completion of such measures which may include mediation and an apology there is no finding or admission of guilt.

In America there is also the nolo contendere or no contest plea where an accused does not admit guilty directly but will receive a punishment for the charge for which the plea is entered.

I will not get into a discussion of people considering guilty pleas because they cannot afford trials.

Where crime fiction focuses on the clarity of guilty and not guilty in trials the real life world of criminal defence deals with a much subtler set of issues concerning guilty. I hope more writers of crime fiction take up the challenge of writing about negotiations over guilty pleas. I think they are just as fascinating as trials.

This post will be my entry for "G" in the Alphabet in Crime Fiction meme being hosted by Kerrie Smith at her blog, Mysteries in Paradise. Please drop over and see the other entries. Each week has interesting posts on the letter of the week.