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General News

FAMM and NACDL Present the Movie: The Vanishing Trial

[famm.org – 6/6/20]

Imagine you’re charged with a crime. Now you must choose between pleading guilty and receiving a shorter sentence–or going to trial and risking decades behind bars.

“The Vanishing Trial” focuses on four individuals who were forced to make that excruciating choice. Each was threatened with a “trial penalty,” the term used to describe the substantially longer prison sentence a person receives if they exercise their constitutional right to trial instead of pleading guilty. We see how the trial penalty has led to the shocking disappearance of one of the most fundamental individual rights and the explosion in America’s prison population.

Throughout the film, we hear the perspectives of national experts, including former federal judges and prosecutors, criminal defense lawyers, constitutional law experts, and criminal justice reform advocates.

“The Vanishing Trial” was produced by FAMM producer/director Wynette Yao and cinematographer/editor Travis Edwards. Yao is an Emmy-nominated producer/director who has worked for National Geographic, Discovery, and other major networks. Edwards is an award-winning cinematographer/editor who has worked on a wide range of documentaries and features.

“‘The Vanishing Trial’ exposes the dirty little secret of the criminal justice system that prosecutors don’t want you to know about: the trial penalty. As a former prosecutor, I know that the trial penalty real and that it poses a grave threat to our constitutional right to trial. ‘The Vanishing Trial’ should educate – and frighten – Americans, and spark a movement to reclaim one of our most fundamental rights.” ~Former United States Attorney Brett Tolman

Want to see the film?

FAMM and NACDL will host a number of digital screenings throughout 2020.

Read more on this page

 

Join the discussion

  1. Tired of this

    Good to see a spotlight on this issue.

    I was convicted in federal court and was given a similar kind of choice: a possible 17 years if I went to trial and lost, or a plea deal for 4 years and change (which the prosecutor still tried to renege on and ask for more time). Something needs to change; with “choices” like this (some 90+% of defendants take the deal, as we all know the deck is stacked against us), justice is an utter joke in this country.

    • Gralphr

      I too was put in a similar position. They claimed I’d have 50 to life if I didnt plead and ended up doing 7 years confinement after pleading. The worst thing about it is pleading to things you know you didnt do.

    • Sc

      On a Federal level its 97.5%, State is about 95% plea bargains. This was addressed by the late SC Justice Scalia in Missouri v Frye and Lafler v Cooper. His dissent makes for an interesting read. And obviously, taking a deal most of us know all too well from experience.

  2. Bib

    Where do you sign up for a screening. I dont see a link anywhere.

  3. j

    it’s not a dirty little secret, here’s not a news flash, im positive to say more than 85% of people’s convictions are based on that *deal* heres my little dirty secret, the district attorneys should NOT put their personal choices of NOT pursuing charges against all the politicians. all these cops, all them monkeys in a suit, when they commit a crime its not a crime, ohhhh, now when a civilian commits a crime, its a whole new ball game, guilty even before its over *believe it*

  4. James I

    I am going to take a VERY strong contrary view on this entire topic…As the current law stands, plea bargaining is the greatest thing that every happened to most of us.

    It is entirely possible that Tired of This was completely innocent of the charges he faced…if this was so, then his was truly a draconian choice…

    But being honest, Tired’s situation, if innocent, is fairly rare among us…most of us have, maybe to varying degrees, but we have guilt nonetheless.

    Now I’ve long maintained that CP should not be a crime at all, except for production and active distribution.

    But that is not the current law and I would again say, as much as we hate it, our plea bargains were good if not great for most of us…and doing away with plea bargaining, under current law and as applied to us as a category, would be INSANE for any of us to be in favor of.

    Mine was a PC 288a conviction which carried a minimum of 16 years as charged and maybe much longer…neither of my victims, (only one of which was real), wished to testify against me…one threatened if she was forced to testify at trial, (I was bound over at a very lengthy preliminary hearing), would commit suicide.

    This admittedly put me in a good bargaining position, but after the prelim, there was no doubt in my mind that I would have been convicted and…as much as I hate to say this, I was very guilty as charged…and the charges were lighter than they should have been.

    A trial would have destroyed many families, and fortunately, my victims were strangers, or not part of my family which was good for me, and also good for them in the sense that I did not wish this terrible circle of destruction to keep expanding…so I took the deal, in everyone’s best interest.

    Believe me the DA was spitting mad at what she was being forced to agree to, but for both sides, the gentle plea bargain was the only solution.

    Now in truth and under a just set of entirely rewritten Penal Code Sections, I maybe should have been sentenced to a year at most, or probation. But without plea bargaining and current laws, all of us would be still doing Major Time and much much more than what we actually suffered, (which is not to say we are not suffering now, and even say suffering unjustly).

    Let me end this all ready too long essay with this…What politician will put forth a proposal to completely rewrite the sex laws in the Penal Code? Who? The Answer is none.

    The laws of consent, certainly with post-pubertal young adults, (note I do not say victims), need to be completely restructured where there is neither force, violence or intimidation to apparently consensual relations…further most sex crime sentencing guidelines for anything that does not involve force, violence or intimidation need to be reduced by at least a factor of 100%…

    Then, and only then, can you do away with plea bargaining. In my Opinion.

    Best Wishes, James I

    PS I can and have only spoken for myself…I would be very interested in anyone that honestly feels they received worse deal in a plea bargain than they know in their hearts they deserved under current law as written. Drop us a note on this if you can.

    PPS The reason I have gone to such trouble to write this is that I wish to see this idea that plea bargaining in sex cases is a bad thing…should be killed, a stake should be driven through its heart. Rewrite the Penal Code and Sentencing Guidelines and then we can talk.

    • James I

      Oops…major error above, that should have been 288(a) not 288a…Sorry, I do get them confused.

      (As if all of this section of the Penal Code isn’t a rats nest of confusion and over reach).

      Best Wishes, James I

    • Mp

      You make some good points. I will look forward to seeing how they balance this out in the movie.

    • Jackson

      @James Good points. And I also agree with you on the decriminalization of cp unless someone’s making it or distributing it. That’s the way the law is in many countries. America is the only country that sends first time offenders to prison for having any forensic trace of cp on their computer. That’s what happened to me due to a mandatory minimum cp possession law in my state. But I have to say that plea bargaining doesn’t make a big difference when it comes to sentencing in mandatory min cp cases because most trial judges believe the mandatory sentence (especially for first timers) is harsh enough, so they don’t sentence over the minimum. That has been the case in my state for defendants convicted of cp possession. The ones who plead guilty get 3 years, but the ones who take it to trial also get 3 years, maybe 4 if they have priors. Pleading guilty in a cp case may be the better option in your state, only because defendants have hanging in front of them the possibility of prison time. But in Wisconsin, we’re getting prison anyways, so we might as well take it to trial. If every defendant did that, their cyber cases would clog the court rooms and hold up more serious contact cases. Then the legislators would have no choice but to change the mandatory minimum law. However, the vast majority of cp possession defendants, in my state, cop a plea but they normally do it for the same reason I did-to save family & friends the embarassment of sitting in the court room as prosecutors trot out nasty photos of children while trying to somehow connect the viewing of those photos as equivalent to taking the photos and performing the henious acts on the child depicted in the photo. Like they say, a picture is worth a 1000 words. They can emotionally sway jurors and family members sitting in a court room, whereas contact cases depend on the testimony of the victim. But showing sex acts thru pictures & videos is far more effective at tugging at emotions and getting convictions from jurors. Thats why prosecutors love these kinds of easy to convict cases. And since cp possession is already labeled a child “sex crime”, prosecutors can then turn around and say they’re doing something about sex crimes against children, when in reality, they’re only getting convictions on low level cyber offenses like someone viewing dirty pictures of children posted by someone else over the internet.

    • Jerett

      James, I don’t mean to pry, but the state was threatening you with 16 years for oral? Thats unless you we’re doing some real pedophilia shit. What are we talking about toddlers here? Well, I won’t judge but I can understand your taking a plea if you did something like that because the judge would have smoked you if you took it to trial.

      • James I

        No Jerrett, the state was threatening me with 16 years for the lesser L&L…it is easy to get to 16 years…I sometimes think I was in love, (I cringe even writing this), but this would have been insane…nah, I wasn’t insane…it was a bad relationship that I was warned against…but I was too prideful, too insane, (too curious?)…to avoid.

        Life happens, to the best of us and the worst of us…I am still not sure where I fit in there.

        I am also not certain why I try to segregate out CP offenses….I suppose I do this because I often feel that these RSO’s have gotten the rawest deal…but then, I suppose a compulsive exhibitionist that never does anything probably gets a pretty raw deal also.

        What I am saying is that I did not get a raw deal, all things considered. I think plea bargaining works to the favor of most RSO’s as current laws are written.

        What I am saying is that the whole rotten system needs to be re-considered, re-written…very often it is just sex I suppose….and America is just crazy about sex and America loves to punish and shame. But sex is what people do.

        The whole system is stupid…except for force, violence and intimidation crimes.

        Best Wishes, James I

  5. NY won’t let go

    I was given a choice of time served or a risk 15-45 years over a one night stand with someone who’d portrayed themselves as older.

    I took time served as my lawyer advised me that if I took it to trial they would want to hang me for not being white. 🤷‍♂️

    After sentencing I found out my lawyer neglected to inform me that I qualified for the Holmes Youthful Trainee Act because I’d requested to fire him to retain another lawyer.

    Turns out my lawyer, the judge, and the prosecutor were good friends. So the judge sent my letter to my lawyer and denied my request to change of council.

    Anyway Michigan sucks. 🤣 NY was not much better. Although in NY the police won’t constantly harass you and get you fired from your job.

    • Love, peace, and happiness

      @ NY won’t let go: Love ya dude but aren’t you still being harassed?

    • Lynn Smith

      I agree completely with all of the comments regarding the viewing of underage porn. That is also my spouse’s offense and we did not take it to trial for the same reasons: to save our kids from the embarrassment of a trial. The prosecutor in our case would not offer a plea deal. Thankfully, though, the judge gave my spouse probation, which I thank God for every day. I was in disbelief that someone could land on a sex offender registry when he had never touched or offered to touch anyone. I, too, think that this needs to be decriminalized. I also fail to see how it is any different than every single form of media showing over and over George Floyd being killed.

  6. texas guy

    I was in the same boat in 1995… I was 18 and dna evidence taken from me should have cleared me, but after 3 days of deliberation, a grand jury still indicted me; even though my dna did not match what was found at the supposed crime scene… option given to me was 5 years deferred adjudication probation ( where I was falsley promised that my record would be wiped clean if I a completed my probation) VS… going to trial and potentially face up to 99 years behind bars… 5 years ago, I saw a notice posted on line that the DA’s office officially destroyed all the evidence in my case, so now there is no going back to revisit it.

    There was no concept of the SOR either.. I was grandfathered in after the fact.. I am sitting here at 45 years old today kicking myself for not fighting harder to clear my name

  7. Dustin

    A couple of thoughts…

    First, the original idea of plea bargaining was to plead guilty to a lesser charge subject to a lesser penalty and still required the judge to review and determine the sufficiency of evidence. Not so nowadays. Because judges need only establish a factual basis, prosecutors – not ostensibly impartial judges – determine the sufficiency of evidence and defendants are pushed to enter pleas to the same charges, often for the statutory maximum. Judges very seldom (if ever) deviate from the prosecutor’s sentencing recommendations.

    Second, I’ve read many trial transcripts where a prosecutor stated something like “I think there should be something extra for putting us through all this” (meaning the trial). Less than half of those did defense counsel point out that a person can’t be penalized for exercising the right to trial. I didn’t make a note of it, but I’m willing to bet that the ones that did were retained counsel. Public defenders never put up much of a fight and I have a hard time believing that they would point out even the smallest thing that might be advantageous to a defendant.

    Disclaimer – I’m admittedly VERY biased against public defenders. I’ve been saying for years that we could make all judge’s heads explode if every defendant in the county jails not only demanded trial, but speedy trial. I guarantee that in that instance, the first thing to be done would be to reassign a new public defender to that county.

    Third, a split maximum sentence (i.e., half incarcerated and half on probation) is still the maximum sentence, particularly when the terms of probation are arguably written to ensure that most of the probationary period is spent running in and out of jail/prison for innocuous, arbitrary, and often unconstitutional conditions. Many POs are bullies and tyrants, and most local criminal/superior court judges are hesitant to rule against them for fear of undermining their own officers, even when they have to undermine the law to find in the POs favor.

    And finally, all of the above is multiplied by ten for those accused of and convicted for (nowadays, the same thing) registerable offenses. Judges are elected, and therefore every bit as much politicians as legislators. The politics of the moment (currently that all sex crime accusations are true and those accused of or convicted for them must be screwed to the wall at every turn) will make more discretionary rulings and opinions this week than the search for truth and fairness will in the next 50 years.

  8. Saddles

    This vanishing trial is like a vanishing point but is it really a vanishing point or a seedy side of life. Yes getting wrapped up in all this confusion can be a breaking point to many. Going to court for some graphic porn found on a computer or a potty mouth story that authorities would dab as porn or some other form of behavior is a bit uncanny. Who is badgering with something as I want you to come down here and talk dirty to me. badgered Badgering isn’t good in any form to induce one un all this flaky ordeal.

    I’m still inclined to believe that we all make mistakes even police and authorities or are authorities so squeeky clean that they induce in this abusive way. Sure nobody’s perfect as we have all seen in the past month with this law officer and this Floyd encounter that is a mockery of justice in a lot of ways. One could even say was this virus here for a reason. Yes their is a reason for all season.

    I just got off the phone today to do my monthly interview by phone. The PO said to me do you mind if I ask you a few questions which was more or less badgering to me. Yes the less you say the better as we are all suppose to be self govering ourself and to be responisible. So were do basic ethics come into play in all this in many ways. Even respect is good if the principal is their or the underlying meaning of the tactic is out of a good conscience or were is the warning signs.

    Common sense says we are all born into sin or who is usurping the apple cart in many try to get one’s goat or are we to incriminate oneself. If badgering is a social norm than authorities know how to do a coy type number on another in this entangled web of deceit.

  9. AERO1

    Wait who in there right mind believes PC cases should not be a crime what kind of sick pedophile logic is that
    are you guys insane.
    Now i see why California politicians place all CP case in tier 3 lifetime registration because you have to be a really twisted minded person to even take the time searching for sick shiit like that.
    In my opinion anyone involved CP should have to register for the rest of there life no questions asked.

    I also have mix feelings about plea deal’s the DA literally tells you that if you take this case to trial your getting the maximum sentence with 85% or you can take the 3 year probation that’s not a deal that’s a conviction.

    • USA the 2nd

      @Aero Why are you on this forum? You’re a sex offender yourself and most sex offenses involve children. So to say non-contact cp sex offenders are pedophiles and they should have lifetime registration, you’re kidding around right? I hope you’re just trolling. Even l don’t stoop that low. I just tell people on this forum to take responsibility for their actions and stop with the bad analogies. But to say offenders who never touched a child should somehow be punished more and stay on registry longer? Geeeesh. You’re a sex offender yourself, Mr. Aero

    • Will Allen

      The only people who should be listed on Registries are people who think other people should be. Those are literally the only people who I would have no problem with big government “warning” everyone about. Those people are dangerous to other free people. Their ideas are dangerous. Their existence is dangerous.

      I’ve never seen CP but I doubt that it is intrinsically more offensive than piles and piles of things. The only problem I can even see with CP is IF/WHEN children are actually harmed by it. I’m sure in many (most??) cases, they are harmed. But they are certainly plenty of cases where they are not (e.g. images of two 13 year olds having $EX with each other). So “CP images” is not at all as cut and dried “heinous” as the criminal regimes would LOVE for all the sheep (and especially Registry Supporters/Terrorists) to believe.

      And of course, it begs the obvious statement of if CP is illegal then surely it is illegal to see photos or video of a child that is killed. Right? It is illegal to view those? What is that called? “Child Murder Media” or “CMM”? And if that is illegal, it must also be illegal to see photos or videos of adults being killed, yes? How could it not be? Or would we only care about murdered children and not adults? I’ve never seen anyone convicted of “Possession of Murder Media”.

      Lastly, if someone sees a CP photo, what harm have they actually done? Maybe a lot (e.g. if they paid someone to kidnap a child and create it) or maybe none.

      I’m not a sheep. None of it is cut and dried. Registries are wrong and nanny big government has thoroughly proven that they have no moral authority to say otherwise or to operate them. When I hear “CP” from big government employees (e.g. law enforcement), I assume the employees are lying or doing something bad, immoral, and/or illegal. They can’t be trusted.

  10. AERO1

    I know the truth hurts
    and it’s true most sex offenses do involve children but most dont so you cant place everybody in 1 category even law enforcement and the Department of Justice knows that why do you think California created a new tier law that goes into effect next year.
    So don’t be ignorant the new changes to the registry are only here to separate pedophiles from sexoffenders and at the end of the day any coward who hurts a innocent child doesn’t deserve to live they don’t deserve to be free they don’t deserve a second chance but that’s just my opinion hopefully I’m still free to that.

    I come on this forum to post my opinion on situations just like everybody else I’ve never once came on here for guidance or acceptance.
    In reality most of the people on here who post never have participated in any ACSOL meetings never donated never Lobby in Sacramento never did anything so whatever you have to say about my opinion is
    totally irrelevant and Unfortunately yes I am also labeled a sex offender but you know what I don’t regret meeting my wife and having four beautiful children.

    But what truly amazes me are the pedophiles who refer to CP cases as non-contact offenses….like really have you lost your mind..
    That’s exactly why I’m grateful for every person convicted of CP because I truly feel that their conviction has either prevented or made it a little harder for them to hurt a child in the future.
    I read a post on here from a woman who said her fiance was convicted of CP and all I have to say to that is where ithe hell is Child Protective services when you need them ……SMH

    • Gralphr

      I have to disagree on your CP should be a contact crime. Should it be illegal? Of course, but to say said individual personally touched said victim in false. Some of those pictures are from the 70s, so are we saying someone born in 1991 sexually abused someone who was a kid in the 1970s? Not only that, one can look on some websites on the internet and see actual beheadings ISIS committed or the Us blowing away terrorist with heavy weapons, does that mean I comitted a murder? If a person can watch a beheading legally and not be a murderer, why is someone called a child abuser for looking at a illegal picture? Dont get me wrong, said pictures are wrong and I would never want my children to face said ordeal, but I still think logic goes out the window when it comes to sex crimes.

    • Bill

      @AERO1

      All CP charges excluding production are non-contact offenses. That’s the truth. Can’t get around that. A spade is a spade.

      To label every CP offender as a pedophile is incorrect because you don’t have to be one to view illegal images. Every individual is different and unique in terms of motivation. And I’m sure you agree that blanket statements are a disservice to everyone including yourself.

    • USA the 2nd

      First of all, you can’t always trust a tier system because the ones that create them are always moving the goal post and adding more people. And I definitely wouldn’t trust the DOJ and FBI who have a history of putting child pornography online to try and catch people who look at it. So if we go with your line of thinking, shouldn’t these fbi agents be locked up and placed in tier 3 for distributing child pornography. Or do you want to keep insisting we just have harsh penalties for people who look at the stuff online because it victimizes or hurts the child or some stupid argument like that. If that were true, the government wouldn’t also severely criminalize virtual pornography or anima that doesn’t involve real children. Viewing cp is a NON CONTACT offense that is legal in some parts of the world. It’s a fine in Germany & New Zealand. Looking at the stuff doesn’t make one a pedophile or mean that one will next run outside an commit a contact crime on a child. If you believe that, you bought into a false narrative not based on science. You still haven’t told us what your sex offense was, Mr. Aero. Did you rape a woman? Or maybe you’re another Brock Turner who decided to jump someone’s bones when they were sleeping. Just because you commited a sex offense on an adult doesn’t mean it wasn’t more atrocious as something someone did involving children, such as viewing fotos online.

      • LPH

        @USA the 2nd who said “You still haven’t told us what your sex offense was, Mr. Aero.” Are you implying someone must answer to your questions? It’s none of your business period.

        • USA the 2nd

          @LPH Hello Aero’s big brother. Mr. Aero is quite capable of defending himself. This is a public forum. If you’re a sex offender who is willing to come on this forum and call sex offenders that view cp “pedophiles” that should be locked up, well of course we all want to know what sex offense did you do that makes you so high and mighty? That’s a natural common sense question anyone would ask. If one is willing to come on a public forum and make provocative statements, they just MADE IT OUR BUSINESS to ask them uncomfortable questions.

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