An End to Copping

The pitch usually goes like this: "The district attorney has you dead to rights. But if you plead guilty to a lesser charge and save the state the time and expense of a trial, I will let you off with a light sentence." The offer comes from a judge. The second party to the bargain is a nervous defendant accused of a crime, almost certain to be convicted, and tempted to "cop a plea." The prac tice is one of long standing. And it has advantages for the public as well as the accused: it clears crowded dockets and sometimes extracts information about other crimes and other criminals as part of the bargain. But is it proper?

Last week Federal Judge Edward Weinfeld of New York's Southern District answered firmly that judges have no business getting mixed up in such deals. A 65-year-old jurist with a reputation for working long hours and never ducking the tough cases, Weinfeld insisted that the bargain deprives a defendant of his rights without due process, impairs a judge's objectivity, makes a sham of the guilty plea and "has no place in a system of justice."

Fundamental Fairness. Weinfeld was ruling on the habeas corpus petition of a Latvian named Almars Elksnis who killed his wife with a kitchen knife during a marital fray at their North Tarrytown, N.Y., home one hot night in June 1955. Because he had been in jail once before for another stabbing, Elksnis was a twotime loser headed for a heavy sentence. So when he came before Westchester County Judge George A. Brenner prepared to stand trial on a second-degree murder charge, he could not but accept Brenner's offer: "If you will plead guilty to first-degree manslaughter, I will sentence you to not more than ten years." When time came for sentencing, however, the judge allowed that when he made the deal he had not known that the stabbing was Elksnis' second felony. Without asking the defendant whether he wanted to change his plea to innocent, Brenner sentenced him to a whopping 17 1/2 to 35 years.

Brenner denied Elksnis due process when he did not tell him that he could change his plea, said Judge Weinfeld; more important for other cases, even if Brenner had kept his word, the whole pact violated rules of "fundamental fairness." Such bargains, said Weinfeld, are inherently wrong because of "the unequal positions of the judge and the accused, one with the power to commit to prison and the other deeply concerned to avoid prison." A guilty plea "predicated upon a judge's promise of a definite sentence," he added, "by its very nature does not qualify as a free and voluntary act."

Propriety & Practice. It may well be, Weinfeld concluded, that "voluntary, as distinguished from coercive, bargaining between the prosecutor and the defendant has been sanctioned by propriety and practice." But he drew a sharp distinction between such deals and "plea-bargaining between the judge and the accused."

Weinfeld's approval of Elksnis' writ of habeas corpus left the state with a choice between appealing Weinfeld's ruling to the Second Circuit Court of Appeals and retrying Elksnis on the murder charge. What is not known is whether the ruling will bring a flood of appeals from convicts who struck similar bargains and now figure they will beat the rap because time has eroded the evidence.

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