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A lawyer's dilemma

It's happened to just about every defense attorney.  You work your butt off getting your client the best possible deal, he grudgingly agrees to it and pleads out, but a week or two before the sentencing he gets second thoughts and wants to withdraw the plea.  He even files a motion to do that.  What's your obligation as his attorney?

Two weeks ago the 8th District decided in State v. Drake that there was no problem with the attorney urging the court to deny his own client's motion and proceed to sentencing.

Drake had led police responding to a complaint of an armed robbery on a car chase across town; he'd crashed the car, run away, and was found hiding in the basement of a nearby house.  That resulted in counts of aggravated robbery with a three-year gun spec, two counts of failure to comply with a police officer's order, fourth-degree felony burglary, and possession of criminal tools.

The lawyer who represented him, whom I know quite well and is a respected member of the criminal defense bar, worked out deal:  the State would drop the tools and one of the failure to comply charges, would reduce the three-year gun spec to one year, and agree to a sentence of five years.  Drake squawked, claiming that he wasn't involved in the robbery.  According to him, he'd driven two friends to a house, they went inside, and came back out a few minutes later.  The next thing Drake knew, he was being chased by the police.  He took off, he alleged, not because he thought his pals had done anything wrong, but because he had drugs on him and a warrant for his arrest.  He claimed it was only after he crashed the car and was arrested that he learned that his two compatriots had robbed a person in the house at gunpoint.

To put it charitably, that argument might not have been well-received by a jury, which would have had the benefit of weighing the credibility of Drake's account in light of his four prior felony convictions.  And considering that the deal gave him five years in prison, which he could have gotten on the failure to comply alone (for which he had no defense), Drake finally relented and agreed to the deal.

Until shortly before sentencing, when he filed a motion  to vacate the plea, claiming that he "didn't understand" what his lawyer had told him.

When Drake and his attorney showed up for sentencing, the judge announced that he'd hold a hearing first on the motion to vacate, and would hear first from Drake's lawyer.  The lawyer told the court that he hadn't filed the motion, vigorously disputed the claim that he hadn't fully discussed the case with Drake, and urged the court to deny the motion and proceed to sentence Drake.  When it came time for the prosecutor to speak, he noted that "defense counsel ... doesn't even believe that Mr. Drake should withdraw his plea."  The court overruled Drake's motion, and gave him the agreed five-year sentence.

I handled the appeal, and drew an argument from a line of cases that find a distinction between ineffective assistance of counsel and complete lack of counsel; the latter is structural error, which doesn't require a showing that the client was prejudiced.  I contended that when your own lawyer argues a position adverse to you, that's not merely ineffective assistance; you might as well not have had a lawyer at all. 

The court rejected that analysis, finding that "the adversarial process did not break down because the trial court considered the appropriate factors in determining whether to grant Drake’s motion."  The problem with that argument, of course, is that it was Drake's counsel's role to argue to the trial court what the "appropriate factors" were and how they should be weighed, and he didn't do that. 

But there's another viewpoint, which the opinion notes:  a lawyer isn't duty-bound to follow his client's every wish, especially one which the lawyer believes would be self-destructive.  The court cites a number of decisions in other similar cases, where lawyers refused to file motions to vacate pleas, or even told the court that in good conscience they couldn't argue one.  If you do get beyond the "structural error" argument and back into "ineffective assistance" territory, you've got some major problems, because there's support in the record for the court's claim that the issue of Drake's alleged innocence of the robbery had been fully explored at the original plea hearing, and the State argued that it had ample evidence to negate it.

So was the decision right?  I'm not sure.  I can understand the lawyer's frustration with having worked out a good deal for his client, and then having the client try to back out of it.  I think the smarter course would have been to seek leave to withdraw, or, at most, to simply take no position on vacating the plea.  I do have a problem with the lawyer taking a position directly adverse to his client.  And yes, I do have a problem with a court taking the position that that's permissible, as a policy matter. 

My biggest problem, though, is that there may have been something to Drake's claim that the deal wasn't really beneficial because he couldn't have been convicted of the robbery.  A week after the oral argument, and two weeks before the decision was released, the State nollied the case against the two guys who actually were alleged to have committed the robbery.

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