The Juries Are Out: Fewer Defendants Risk Going to Trial | Crime | Seven Days | Vermont's Independent Voice

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The Juries Are Out: Fewer Defendants Risk Going to Trial

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RYAN OLBRYSH
  • Ryan Olbrysh

Speaking from the Winhall home that federal prosecutors were trying to take from her, Alison Gu declared again and again how eager she was for her trial to start.

"I feel anxious, but I'm looking forward to having my day in court, because I know I'm innocent," Gu said in late October. "We really have a good chance of winning the case."

Gu faced felony charges of bank fraud, passport fraud and aggravated identity theft. In court documents, prosecutors suggested they had piles of evidence to prove that Gu bilked three banks, including the Bank of Bennington, out of more than $1 million. She allegedly used an elaborate array of false identities, altered bank records, pilfered Social Security numbers of dead people and even the forged signature of a U.S. consular official in her native China.

Gu had much to risk besides the possibility that her home would be seized if she were convicted. She is the mother of three children aged 13 to 18. A guilty verdict could mean she'd face 30 years in prison — but she had been offered a plea deal that included a sentence potentially as short as two years.

Yet her choice was obvious, she said: She rejected the deal.

"I'm not guilty, and even one day away from my kids will be torture for me; it will be like a lifetime," Gu said.

Decisions such as hers are increasingly rare. Few criminal defendants gamble on trials anymore. Less than 2 percent of federal criminal cases filed in Vermont go to trial, a percentage that has steadily fallen in recent years. In 2016, 205 criminal cases were resolved in federal court in Vermont. Only two — both involving out-of-state drug dealers allegedly operating in Vermont — went to trial. Other cases ended in plea deals.

"It is the norm for criminal felony cases to plead," said Vermont U.S. District Court Clerk Jeff Eaton. "A trial is a rare occasion."

The story is the same in Vermont's state courts. Less than 2 percent of felony criminal cases and 1 percent of misdemeanor cases led to trials in 2016. Criminal trials in the state system declined 25 percent from 2009 to 2014, and have remained roughly level ever since, according to judicial statistics.

"Achieving an outcome that gives certainty to all people has value," said Robert Sand, director of Vermont Law School's Center for Justice Reform. "Jury trials are a roll of the dice, and you're gambling with human beings."

Trials have become so uncommon that clerks, law students, courthouse personnel and attorneys routinely fill the gallery when they occur. Scholars across the country in recent years have documented the demise of the trial.

Legal experts point to a number of factors. In the federal system, Congress has enacted mandatory minimum penalties for an array of crimes. That gives defendants an incentive to avoid trials. Federal sentencing guidelines generally call for defendants to receive significant reductions in their sentences if they plead guilty and accept responsibility. And federal prosecutors have great discretion in choosing which cases they pursue — meaning their cases are often strong.

Burlington defense attorney Craig Nolan prosecuted cases in both the state and federal court systems. He said he is concerned about the proliferation of plea deals.

"Trials, in my view, are healthy for the system," Nolan said. "They keep the government on its toes. It brings home to prosecutors and to their [investigators] what it takes to prove guilt beyond a reasonable doubt to juries. Otherwise, it's just a bunch of lawyers deciding, through plea bargains and agreements, what is enough evidence."

In the state court system, the spread of restorative justice programs and treatment courts — in which defendants can often avoid criminal prosecution if they undergo treatment — may result in more cases ending in plea deals or dismissals.

But there is a potentially darker explanation for many of the plea deals in state court, Sand said.

Many defendants plead guilty in exchange for a sentence of "time served," the days or months they have been behind bars awaiting trial. Defendants are likely to plead — even if they are innocent or unlikely to be convicted because the state's case is weak — simply to get out of jail.

"There is no question that prosecutors' leverage in obtaining a plea increases when someone gets held pretrial, because people want to get out," said Sand, a former Windsor County state's attorney. "It turns the presumption of innocence on its head. I don't think the framers of the Constitution really envisioned that people would be held in jail at a time when they were presumed innocent prior to trial, and then plead out and admit their guilt as the method of being released from jail."

Imprisonment wasn't an issue for Gu. She was free while awaiting trial in U.S. District Court in Burlington. Once it started on October 30, her seven-day trial attracted courthouse personnel and curious attorneys.

In court papers, federal prosecutors and investigators accused her of a byzantine scheme that spanned at least half a dozen states.

The case began in March 2015 when, prosecutors say, Gu, pretending to be a woman named Ally Lynn Koo, walked into a federal office in St. Albans and applied for a passport. She presented a Social Security card, a New Hampshire driver's license, a Texas birth certificate and a document purportedly from an Alabama judge reflecting a legal change of name. Suspicious, federal officials declined to issue a passport. They soon discovered that the Social Security number was associated with a girl who died in the 1980s and that the Alabama document was a forgery. Police who searched Gu's former home in Connecticut found a fake Alabama probate court seal.

Gu established other fake identities. With the help of her boyfriend, Matt Abel, she conducted a dizzying array of financial transactions from 2013 to 2015, obtaining $1.6 million in mortgages and a refinancing from three banks for a condo in Winhall and a home in Dorset, as well as residences in Florida, Texas, Massachusetts and Connecticut, according to federal court documents. Prosecutors are now seeking the forfeiture of those homes.

Abel was also charged in the scheme and was scheduled to go on trial with Gu. Instead, he took a plea deal on October 10. Facing up to 30 years in prison, he pleaded guilty to bank fraud and is scheduled to be sentenced in February. His exact sentence was not specified in the deal.

The day he pleaded guilty, Gu said, was "the worst day of our lives." Abel did it, in part, so that he could avoid a lengthy prison sentence and be around to care for Gu's children in case she was convicted, she said.

"It's not the happiest thing you can do, but you have to be prepared," Gu said.

Nolan, who represented Abel, declined to comment on the deal.

Gu repeatedly reached out to Seven Days in the weeks before her trial, hoping, she said, for the opportunity to tell her story. She said she is not the person who requested a passport in St. Albans — the feds, she said, have got the wrong woman.

In a lengthy and meandering phone interview, Gu alternately cast blame on overly zealous prosecutors and a shadowy group of foreign operators with whom she said she does business.

Gu said she was born in Shanghai, China, and came to America with her father at age 16. She went to high school in Brooklyn. She said she fell in love with a man who eventually went to prison for racketeering. She divorced him in 2009 after 12 years of marriage, moved to Connecticut and met Abel. He's a native Vermonter who persuaded her to relocate to his home state, she said.

Eager to talk more about her case, Gu invited this reporter to visit her at the Winhall condo, a short walk from Mount Snow. But a few hours before the visit, she abruptly canceled, saying she didn't want to jeopardize her case.

"I cannot afford any media coverage," she said.

In the hours before the verdict was handed down last week, Gu appeared relaxed. She chatted amiably with her attorney, Lisa Shelkrot, and others in the courthouse.

But, in the end, after two hours of deliberation, jurors convicted Gu on all three counts of fraud and identity theft. She was immediately taken into custody and was being held in the Chittenden Regional Correctional Facility in South Burlington while awaiting her sentencing hearing.

The defendant who turned down a deal that could have given her two years in prison may learn a harsh lesson about the risk of going to trial. She could remain behind bars for 30 years.

Shelkrot declined to comment on the verdict. But she said she often advises clients to take plea deals.

"Globally, I think the system would do to well to have more trials, but I don't represent the system — I represent individual clients," Shelkrot said. "It's usually in a defendant's interest to take a plea. They are usually rewarded with a more favorable sentence."

Shelkrot has handled criminal cases in federal court for more than 15 years. This was only her second trial.


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