Of Course Sidney Powell Was Extorted, That’s How It Works.
![Sidney Powell](https://i0.wp.com/ordinary-times.com/wp-content/uploads/2023/10/Georgia_election_racketeering_defendants.svg_.png?resize=720%2C369&ssl=1)
An Euler diagram of categories charges faced by each defendant in the Georgia election racketeering prosecution. Photo by Antony-22, CC BY-SA 4.0
Yes, of course former Trump lawyer1 Sidney Powell was extorted by the prosecution into accepting a plea bargain. If by “extorted,” you mean she would risk more severe consequences if she didn’t agree, because that is how it works in our criminal justice system, of which Ms. Powell finds herself on the least pleasant end.
Every day, in courtrooms across America, defendants forego their right to a jury trial and agree to plead guilty to fewer or lesser charges, or in exchange for a more favorable sentence. While all defendants have a right to take their case to trial, only a very small percentage do. Most cases plead out. And when a defendant accepts a plea bargain, the judge engages them in an extensive, under oath Q&A on the record to ensure that they have weighed their options and really want to do so. Giving up a constitutional right means that it is absolutely imperative that the record is clear that the plea is entered voluntarily, and of the defendant’s own free will.
Sidney’s was.
Note questions 10, 11, and 12, designed to make absolutely sure the defendant understands what they’re doing. I was not privy to Powell’s plea hearing, but I’d bet that she was also asked out loud by the court whether her plea of guilty was made voluntarily, without force, threats, coercion, or promises, other than as set forth in an accompanying written plea document. In this context, a threat does not mean “if you don’t take this plea you will go to trial and could be convicted of all the charges” or “if you don’t take this plea and are found guilty, I will not recommend leniency.” Those aren’t threats; that is simply the reality faced by defendants who go to trial. Sure, promises have been made; they will be contained within that document as well. It’s what the prosecution has agreed to do in exchange for the guilty plea.
The judge would also have inquired whether she’d had ample opportunity to consult with her counsel and whether she fully understood the nature and consequence of the guilty plea. In fact, in my experience, judges are so meticulously careful to make a record reflecting that a plea is voluntary that I used to tell my clients ahead of time not to misinterpret the judge’s questions as an attempt to talk them out of the deal or to suggest they shouldn’t take it. I’ve seen that happen, when a judge says “are you absolutely sure you want to do this?” and a defendant thinks the judge is hinting that they shouldn’t.
In my experience, a judge will often ask “are you pleading guilty because you are, in fact, guilty?” often followed by an allocution, meaning the defendant must lay out what he or she did. There are exceptions; an Alford plea, for example, doesn’t require any acknowledgment of guilt. The defendant in those cases is merely stipulating that they believe there is enough evidence to convict them at trial and a plea agreement is their best option. In Powell’s case, according to reports, she agreed there was a “sufficient factual basis” to support the 6 charges she pleaded guilty to.
Nevertheless, Powell’s “Newsletter” to her supporters included a link to this rubbish from the Federalist that contained the following blurb:
The bottom line is this: Willis basically extorted a guilty plea from Powell by charging her with seven serious felonies, including a RICO conspiracy count, two counts of conspiracy to commit election fraud, and one count each of conspiracy to commit computer theft, conspiracy to commit computer trespass, conspiracy to commit computer invasion of privacy, and conspiracy to defraud the state. With a jury culled from deep-blue Fulton County, the risk of a conviction on even one of the felony counts, and the consequential loss of her law license, would be just too great of a chance for any defendant to take — especially when the plea only involved misdemeanors that would be discharged from Powell’s record following probation. Under these circumstances, it would have been lunacy for Powell to have rejected the plea offer.
Yes, Sidney Powell had a lot to lose, as do most people who stand before a court facing criminal charges and the full power of the prosecution. But she got a sweetheart deal: 7 felonies dismissed in exchange for guilty pleas to 6 misdemeanor conspiracy counts, for which she will receive 6 years probation followed by expungement under Georgia’s First Time Offender law. She will have to pay fines and restitution, and testify truthfully in trials of codefendants, including Trump. What that will look like, in light of her recent posts on Twitter/X, will be interesting.
She was not actually extorted, any more than any other defendant who takes the opportunity to save their skin with a plea deal – especially when a prosecutor is willing to recommend no jail time. The criminal justice system is complex and scary for folks and sometimes a plea deal is a life raft. Yes, it can even induce factually innocent people to plead guilty, if the deal is sweet enough. That’s why courts are so careful to build a strong record showing the voluntariness of a guilty plea. They want to make sure there’s no question that even the least sophisticated defendant understands what they are doing.
That includes Sidney Powell, former federal prosecutor.
Let us not forget that prosecutors will pile on charges that have a range of probability of conviction. That way they can “negotiate” all those away “iffy” ones during bargaining. It looks like the defendant is getting a deal from the defendant’s perspective. It doesn’t matter if they think the prosecution can actually get a guilty verdict on some of the charges, they add them anyway, so the defense has to consider that they COULD win.
Now, I’m a big don’t do crimes if you can’t pay the piper, but that seems a bit underhanded.Report
You’re correct. But of course, it’s the norm and not Powell being treated worse than your average defendant.Report
In the context of being part of a team trying to overthrow the government, this looks more like a sweetheart deal than a pile on.Report
I hate to use the word ‘privilege’ given how loaded it is, and normally find its deployment to be pretty annoying and not really merited, but there does seem to be an ingrained belief among Trump and supporters of Trump that they are somehow above getting in trouble for conduct that…. well that one would think most people understand is likely to get them in trouble.Report
We’re in “cult leader” territory.
Normally with religion, the public claims to really believe are virtue signaling and don’t reflect things you really do. So you pray for health for your sick child but you don’t actually trust that god will fix them.
However there can be a core of believers who will do exactly that.
With Trump, his claims were a lot less magical so he needed less to get people to do stuff. Since the election was really stolen you can do things to fix it because justice is on your side and if there are any technical legal problems they’ll be washed out in the end.
Life is not really an action movie nor does it have grand causes but lots of people want that.Report
Yeah, I wasn’t addressing the defendant’s specific case, more of how prosecutors deal with defendants in general.Report
One of the more interesting things for me over the last couple of years has been witnessing the shock of those sympathetic to Trump when learning about how the criminal justice system actually works. Being the ‘lawyer in the family’ and one who did a stint in criminal defense at that, I have had to go to great lengths to explain that all of this is pretty normal. That includes Powell’s good deal, given that she will probably be a helpful witness for convicting the primary target of the prosecution. Of course she should know that she will have to live up to the bargain to get the benefit of it.
Anyway if people want to see extortion they should look into what happens with those caught up in federal drug task force investigations. Lord knows I picked up a few war stories about that, even in my brief time practicing in the relevant area.Report
yikes.
broke: “law-enforcement people use the threat of long prison sentences as a tool to extract guilty please and avoid the bother of creating an actual criminal case against accused persons, and the legal system supports them in this by enacting punitive mandatory-minimum laws and Procrustean sentencing requirements, and all of this is extremely unethical and exploitative”
woke: “it’s not extortion, it’s negotiation and everyone involved understands quite well what’s going on, and obviously the person was guilty as hell and she’s just grabbing at any chance to keep her ass from going into the blades, and this is all okay because TRUCK FUMP.”Report
Either it’s extortion or it’s not. It can’t be extortion when applied to Group X and not when applied to Group Y.Report
“It can’t be extortion when applied to Group X and not when applied to Group Y.”
yes that’s my pointReport
Who are you criticizing here? Who has stated the opinion your trying to satirize?Report
If conservatives want to start making the case for sentencing reform I think a lot of people with concerns about the status quo of the criminal justice system would see that as a positive thing. However the laws on the books and the approach to prosecution has really been a bipartisan effort over many decades. It’s sort of silly and not particularly credible to start squealing about it and calling hypocrisy only when one’s favored politician gets caught up in it.Report
It is, however, entirely consistent with conservatives squealing about societal norms – and legal restraints – they don’t like. The only thing that would have been more on point would have been if she were named Karen.Report
wow that woulda landed a lot better if I hadn’t mis-keyed “pleas”Report
That is the least of the issues with your post.Report
I liked “guilty please”. It could be the shortest closing argument in judicial history.Report
As someone who has repeatedly criticized the overuse of plea deals, while I can’t speak for others, I feel I should point out that almost the entirety of _my_ objections to those to not apply to Sidney Powell:
First, she was able to afford bail. Plenty of defendants have to take plea deals simply because the system threatens to keep them imprisoned near indefinitely as trials drag out. Which, in addition to ‘punishment without being found guilty’, often threaten to ruin their life…they will lose their job, not be able to pay rent, get evicted, lose all their belongings, etc. (As many people here know, I object to bail at all. Either someone can be trusted to return to court, or they cannot.)
Second, she had actual legal representation. Plenty of defendants have to take plea deals despite being innocent because they have public defenders that are only able to devote approximately 15 minutes to their case, and the defendant has essentially no ability to do anything that would help prove their side of the case or call doubt on the prosecution’s.
So my problem is not ‘plea deals’, it is ‘plea deals that happen because of one or both of those things’. Those two things are the cause of 99.999% of plea deals, and are unethical pressure that has no justification under the concept of justice or the constitution.
Can there be other problems even if neither of those are true? Sure. As long as we have a system that allows people to admit they are guilt in exchange for less punishment, people are going to feel some level of pressure to take a plea deal _even if they are innocent_, if they feel their case looks bad.
But what’s the alternative there? We don’t let people admit they are guilty? That’s obviously nonsense. We let them admit they are guilty but they do it in court so are hit them with the same penalties? Well…except we wouldn’t, because surely that would be taken into account in sentencing, so now all we’ve done is swapped out ‘a specific deal and punishment’ for ‘throwing yourselves on the mercy of the court’ and hope they don’t dislike you. Neither of these seem very plausible…so plea deals will always exist.
What we need to do is a system where _innocent_ people believe that they will walk out the courtroom doors without their lives ruined, and we really, really do not have that for people who cannot afford lawyers or bail. (And we don’t have it the other direction, either, as guilty-as-hell rich people seem to be convinced they’ll get away with everything, and usually are right.)
Meanwhile, Sidney Powell’s case looks really bad and might ruin her life, so she signed a plea deal. But it didn’t look bad because of some bad public defender, or will ruin her life because she’s locked up in prison for years before it comes to trial. It looks bad because…it seems she’s done the things that she is being accused of, and those things appear to be pretty serious crimes.Report
Oh, and I didn’t mention the ‘piling on charges’ thing specifically, but just in case someone misses it: That sort of thing goes away with good lawyers.
I’m sure Powell’s lawyers sat down with her and explained to her in detail which parts of this were plausible for the government to prove, and which parts would probably get dropped during trial. Remember, this was the day before the trial, her defense team already knew all evidence that was going to produced during the trial. I’m sure there was stuff they were able to say ‘This requires proving all of X, Y, and Z, and the government doesn’t seem to have any evidence towards Y at all. It’s just there to scare you.’
Is it underhanded to inflate charges like that? Sure. But it doesn’t really matter if you have competent representation. It’s really only there to cow plea deals out of people who _don’t_.
I mean, I’m all for stopping that if someone can think of a way to, I’m sorta of the opinion that anyone who brings charges against someone and then drops them should have to explain, in writing to a judge, why exactly they were dropping them, what new evidence showed up, but…I’m a favor of a lot of ‘You have to write stuff down’ in the justice system that no one seems in care about.Report
Traitors deserve worse than the white glove treatment Powell is being given.Report
Is the “woke” section supposed to be a summation of what I said? Because if so, you missed my point entirely.Report
You expected different?Report
Actually, I think it’s a summary of things _I_ have said here.Report
“if so, you missed my point entirely.”
No, I don’t think I missed your point at all. You’re making the same point as Eric Holder, that our methods are Clean and our cause is Just and our results are Acceptable.
I do think that people might have expected you to not carry quite so much water for the Carceral State, maybe a few more caveats, examples of how plea deals are rotten and exploitative, a little less chortling at the accused party writhing like an earthworm on the cruelly-barbed fish-hook of Justice, but y’know, Trump and all that, entirely understandable.Report