You Can Be Innocent—or You Can Be Free: Prosecutorial Power and Dark Pleas in Innocence Litigation

Authors

• Tori Simkovic, Miami Law Innocence Clinic, University of Miami School of Law
• Craig Trocino, Miami Law Innocence Clinic, University of Miami School of Law

Document Type

Article

Abstract

This Article examines the phenomenon Justice Michael P. Donnelly has termed the “dark plea.” A dark plea is a post-conviction guilty plea extracted from defendants who maintain their innocence but accept freedom over exoneration. Through the lens of State of Florida v. Lawrence K. Johnson, this Article exposes how dark pleas operate at the precise moment when newly discovered evidence threatens to unravel a conviction and expose actual innocence in a nearly two decades old wrongful conviction. Johnson’s case illustrates the coercive dynamics of this type postconviction “bargaining.” After eighteen years of incarceration, compelling DNA recantation evidence, and an appellate mandate for an evidentiary hearing, the State offered immediate release conditioned on a plea that preserved the conviction and foreclosed judicial scrutiny.

The Article argues that dark pleas are not merely individual compromises but systemic failures that distort truth-seeking, shield prosecutorial error, and suppress evidence with consequences far beyond a single defendant. In Johnson’s case, acceptance of a dark plea in exchange for his freedom foreclosed any judicial examination of a private forensic laboratory’s use of an unreliable and scientifically unverified DNA testing procedure. In other words, a full examination of this lab’s practices could have uncovered that this faulty procedure may have contributed to wrongful convictions in numerous other cases. By engaging in the coercive dark plea process, the State effectively insulated its and the lab’s conduct from judicial and public scrutiny.

This Article offers an insider account of innocence litigation inside the “dark plea zone,” documenting how leverage, risk asymmetry, and human urgency converge to make freedom contingent on silence. The Article concludes that even when a dark plea secures liberty, it exacts a profound institutional cost: the loss of truth, accountability, and the law’s capacity to correct its own errors.

Recommended Citation

Tori Simkovic et al., You Can Be Innocent—or You Can Be Free: Prosecutorial Power and Dark Pleas in Innocence Litigation, 16 U. MIA Race & Soc. Just. L. Rev. 157 (2026).
Available at: https://repository.law.miami.edu/umrsjlr/vol16/iss2/3