Ohio Supreme Court Justice Michael Donnelly said defendants sometimes experience an impossible situation in which they are offered what he calls a "dark plea."
"Dark plea deals" can be offered when a convicted person tries to get a new trial.
He'll discuss this during an event coming to the University of Dayton. The event includes a panel discussion with two Ohio exonerees and Donnelly as the keynote speaker.
The event will be held at the University of Dayton KU Torch Lounge from 6:30 to 8:30 p.m. on Sept. 12. To attend, RSVP by the end of the day on Sept. 10 by emailing lheller2@udayton.edu.
"As anybody who advocates for the innocent will tell you, Ohio's post-conviction system is a morass of non-transparency."
Ahead of the event, he talked with WYSO Community Voices Producer Mary Evans.
This interview has been lightly edited for length and clarity.
Justice Michael Donnelly: This is one of a series of events that I've been doing in conjunction with the Ohio Innocence Project, going around to various colleges and teaching them about the plight of the wrongfully convicted in Ohio and how tough it is for innocent people — once their conviction is intact and affirmed by the Court of Appeals — how tough it is for them to have the system get a second look at their case.
As anybody who advocates for the innocent will tell you, Ohio's post-conviction system is a morass of non-transparency, and innocent people have to fight for years and years to get a hearing because they legally, right now, are not entitled to have a hearing.
We want to inform students and future lawyers about what's needed to reform the system so that we can remedy the problem of wrongful conviction, try to prevent it on the front end, and, when it happens, make sure it's remedied as quickly as possible.
"The fact that the system makes mistakes is not a matter for debate. We know that we're closing in. Since the first DNA exoneration back in 1989, we're closing in on some 4,000 people nationwide that have been fully exonerated."
A big part of the problem regarding wrongful convictions is that people, especially prosecutors, tend to view those who advocate on behalf of the innocent as simply an extension of the criminal defense bar looking for a second bite of the apple when that's not the case at all. Innocence advocates need to be identified as their own stakeholders in the system, as I've said in my writings.
Because when you think about it, innocence advocates aren't defending anything. They are trying to come into the system and say, look, I know you think you got it right the first time, but you didn't. The theory on which you convicted me has been completely undermined. And we can prove it. They actually on the back end of the system, they become like prosecutors. They are prosecutors of innocence claims. And it's the prosecutors who have to choose whether they're going to try to defend the integrity of the original conviction or whether they're going to accept what the new evidence suggests.
The fact that the system makes mistakes is not a matter for debate. We know that we're closing in. Since the first DNA exoneration back in 1989, some 4,000 people nationwide have been fully exonerated, and so we know that there are more innocent people in there. We need to accept this fact, and we need to accordingly build a post-conviction system in Ohio that is designed to remedy wrongful conviction by adding transparency to it.
Mary Evans: You mentioned being fully exonerated, and this event covers wrongful convictions and "dark pleas." What is the difference between a fully exonerated individual and a dark plea?
Donnelly: A "dark plea" is a phrase that I came up with because I saw it happen in Cuyahoga County, and I was kind of shocked that it was allowed to happen in our system. And after I began studying the problem, I learned it was happening nationwide. And so I decided to write about it.
What happens in Ohio if you discover new evidence suggesting that the guilt theory used to convict you in the first place has been completely undermined? The law entitles you to a new trial. But to get there, you have to have a hearing.
Donnelly coined the term "dark plea" to refer the difficult situation innocent people are placed in when advocating for their innocence and being offered a plea deal to get out prison but not be declared innocent.
And right now, under the law, judges are not required to have hearings to hear this evidence. There is legislation currently pending in the Ohio Legislature that would require that. But until that happens, whether a judge can give you a hearing and what a dark plea is is discretionary.
If you're lucky enough to have a judge that says, 'I'll hear you out, I'm going to have a hearing, and we'll listen to what evidence you have that suggests that the theory of guilt has been completely undermined.' That's when you enter what I call the dark plea zone because prosecutors who look at that evidence — and it's my opinion — they look at it, and they know that if it goes to a hearing, they're going to lose. They exercise unconscionable leverage at that point.
And what they'll do is they'll go off record to the Innocence Advocate and say, look, we have a briefing opposition pending, we're prepared to litigate this matter. You can go ahead and litigate and find out what you don't know, what will happen at that hearing, or we'll withdraw our opposition to your motion for a new trial in exchange for your immediate plea to what we already convicted you of, or some other form of the event, and we'll let you out of jail today. Even though you maintain your innocence, we'll let you out of jail, but your conviction is going to remain intact.
That's what I call a dark plea. And it happens way too often.
This story was produced at the Eichelberger Center for Community Voices at WYSO.
