Of all the mistakes a lawyer can make, representing two criminal defendants in the same case is one of the biggest.  Of all the mistakes a trial judge can make, getting too involved in plea negotiations is one of the biggest.  Both were on display in last week’s 8th District decision in State v. Kelly.

Kelly and his co-defendant Taiwan Wiggins — and no, I’m not making that up — were charged with kidnapping, robbery, carrying a concealed weapon, and having weapons under disability, the latter count pertaining only to Kelly.  They were represented by the same attorney, who also represented Wiggins in a pending Federal prosecution.  Kelly pled out to the disability count, and the remaining charges were nollied.  Wiggins eventually pled, too, and was given time to run concurrent with the Federal sentence that had been imposed in his now-concluded Federal case. 

When Kelly appeared for sentencing, he acknowledged that he’d been in Wiggins’ car at the time of the offense, but denied that the weapon was his.  The judge placed him on community control sanctions, with the warning that he would get five years in prison for a violation.

Which it took him only four months to accomplish, when he was indicted on a drug trafficking case.  The case dragged out for almost nine months, at which time “the trial court held a lengthy discussion with defendant and attorneys present and participating.”

They had a lot to discuss.  Wiggins again claimed that he wasn’t guilty of the earlier offense, this time explaining,

“[My former attorney] told me to cop out * * * because if my co-defendant got found guilty of it, it would enhance his sentencing guidelines in the federal system[.] * * *  Mr. Wiggins was going to get 10 years in the federal system had he been found guilty in the state with a prior conviction.  He told me, like, Kelly, you ain’t got nothing to worry about. You already on parole.  If you get found guilty, they are going to give you paper on top of paper.  You’re going to be okay.”

The judge assured Kelly he had discussed the conflict issue with Kelly’s prior counsel at the time, and counsel had told him Kelly consented to the representation; neither the discussion nor any waiver of the conflict found its way into the record.  Nonetheless, the judge advised Kelly that he wouldn’t impose the five-year prison sentence for the earlier case, and “that the max I’ll give you is two years” on the new case.   Kelly did plead, and was sentenced to three years.

The first issue on appeal turns on the first case, with Kelly claiming that the trial court had a duty to inquire as to the potential conflict of interest.  The State denies that any such duty existed,  a position seemingly at odds with the Supreme Court’s decision in State v. Manross, which holds that “both defense counsel and the trial court are under an affirmative duty to ensure that a defendant’s representation is conflict free.”

But this is where it gets tricky:  Manross held that the trial court’s duty to inquire arises only when “the trial court knows or reasonably should know that a particular conflict exists or unless the defendant objects to multiple representation.”  Had the judge in Kelly not been aware of any conflict until Kelly denied the weapon was his at his sentencing, arguably no duty would have arisen.  That argument founders, though, on the judge’s statement that he had discussed that very issue with defense counsel earlier.

Manross upheld the defendant’s conviction over a conflict-of-interest argument on the grounds that the court wasn’t aware of the conflict, but acknowledged that “the better practice” for the court “is to make a prompt inquiry and advise each defendant of his or her right to effective assistance of counsel, including separate representation.”  That makes particular sense, since even if the trial court doesn’t have a duty to inquire, a reversal is necessary where the defendant can show an actual conflict of interest, as Kelly almost certainly could have done.

The judge runs into further problems with his participation in the plea bargaining.  The particular problem here is that the trial judge promised Kelly two years, and gave him three; as the court explains,

When a trial court promises a certain sentence, the promise becomes an inducement to enter a plea, and unless that sentence is given, the plea is not voluntary.

One of the other factors cautioning against a judge’s involvement in plea negotiations is that such participation “can create the impression in the mind of the defendant that he would not receive a fair trial were he to go to trial before this judge.”  That impression might have been enhanced by the judge’s unfortunate choice of wording in responding to Kelly’s claim of innocence:  ““[i]f we prove it, you’re going to do 8 years.”  (Emphasis mine.)

I know this particular judge quite well, and he’s not going to show up on anybody’s list of prosecution-friendly judges.  What happened here demonstrates a dilemma for those on the trial bench.  I know a number of attorneys who complain about judges who won’t give them any idea of what they’ll do on  a plea, and that’s understandable; it’s very difficult for a lawyer to work out a plea with his client without giving him any information on the possible consequences.  On the other, the appellate courts have consistently held that too active participation by the judge can render the plea involuntary.  Given decisions like Kelly, it’s understandable that judges want to err on the side of caution.