Christopher Barker pled out to three counts of unlawful sexual conduct with a minor back in 2009.  During his plea, the court advised him of his constitutional rights, partly in this fashion:

I do have to ask you, do you understand when you’re entering a plea you’re giving up your right to a jury trial or bench trial, also giving up your right to call witnesses to speak on your behalf or question witnesses that are speaking against you? Do you understand that?

Barker was sentenced to 12 years in prison, but last year, the 6th District reversed, holding that the plea was invalid because the trial judge failed to advise Barker that not only did he have the right to call witnesses, but that the court could force them to show up.

After yesterday’s argument in the Supreme Court on the case, bet the ranch that Barker’s going to do the 12 years.

As virtually everybody even vaguely acquainted with the criminal justice system knows, the vast majority of cases are resolved by pleas.  According to the Ohio courts summary for last year, 2,123 felony criminal cases were terminated by trial.  By comparison, 55,373 were terminated by guilty or no contest pleas.  But “terminated” is perhaps the wrong word:  the case law abounds with appellate decisions arising from guilty pleas.  Much of that stems from the Supreme Court’s 1969 decision in Boykin v. Alabama, which held that since a guilty plea involved the waiver of constitutional rights, it had to be shown that the defendant had “knowingly, voluntarily, and willingly” entered into the plea.

Since then, the courts have created a dichotomy in dealing with the validity of pleas.  With regard to advice about a non-constitutional right — post-release control, say — only “substantial” compliance is necessary, and the defendant has to show prejudice:  that if he’d been correctly advised, he wouldn’t have entered the plea.  Advice about constitutional rights, though, requires strict compliance, and the failure to do so renders the plea invalid without a showing of prejudice.

But what was “strict” compliance?  Criminal Rule 11(C)(2)(c) specifies the constitutional rights of which a defendant needs to be advised during a plea, and the issue in Barker was whether the judge’s statement that Barker had “the right to call witnesses to speak on your behalf” was sufficiently “strict compliance” with the Rule’s requirement that the defendant be advised of his right “to have compulsory process for obtaining witnesses in the defendant’s favor.”

The fact that the judge hadn’t used the exact words of the rule wasn’t disposite; three years ago, in State v. Veney, the Supreme Court reaffirmed its earlier holdings that  while the “preferred procedure” was to use the language of the rule,

failure to literally comply will not necessarily invalidate a plea. The underlying purpose, from the defendant’s perspective, of Crim.R. 11(C) is to convey to the defendant certain information so that he can make a voluntary and intelligent decision whether to plead guilty.

The state had devoted much of its brief to the semantical and historical argument that “call” implied using some compulsion:  after all, when we’re called to jury duty, or to military service, it doesn’t connote that we have a choice in complying.  That proved largely unnecessary.  There are some cases where oral argument gives little indication of the outcome.  This wasn’t one of them.

There were actually two issues raised in Barker, which complicated the defendant’s position.  Barker had also signed a plea form, which did include the language regarding compulsory process.  In Veney, the court had rejected the state’s similar argument that the judge’s failure during the oral colloquy — in that case, with regard to the right to have the state prove its case beyond a reasonable doubt — was remedied by the inclusion of that term in the written plea agreement.  The 6th District in Barker had read Veney as meaning that the whatever was contained in the written plea agreement was irrelevant, but in Veney the trial judge had completely omitted any mention of the right during the plea colloquy; here, the state argued, any ambiguity in what the defendant was told during the colloquy could be corrected by looking at it in the context of the plea form.  Chief Justice O’Connor and Justice McGee Brown raised another possibility:  wouldn’t the defense counsel have advised his client of his rights?

The crowning blow was delivered by Justice Lundberg Stratton, who got Barker’s counsel to concede that Barker, with an 8th grade education, probably would not have understood what “compulsory process” meant.  This left his attorney to argue that a judge has to make an individual determination in each plea colloquy of whether the defendant actually comprehended his rights, even suggesting that if a statement by the defendant that he understood his rights was accompanied by a quizzical expression, the judge was obligated to inquire further.  This was too much for the Chief Justice:

If the exact words are read, and you’re saying that’s not sufficient under certain circumstances, you’re asking us to require a trial judge to taylor their Rule 11 based on their perception of the education, the intellect, the job the defense attorney has done, the ability of a defendant to read English… where does it stop?

The big problem here is one of practicality.  I’ve seen pleas over in Federal court that take an hour; I’ve rarely seen one in Common Pleas court here that takes more than 10 minutes.  In fact, as I’ve mentioned before, it’s not uncommon for judges in the latter to wait until about 11:00 AM to take pleas, and then to take them en masse, with defendants from different cases arrayed with their lawyers as the judge does the colloquy.  That’s the difference between a court system that handles 2500 criminal cases a year, and one that handles 25,000.  Anybody who believes that a judge is going to try to read facial expressions of the individual defendants in that situation is dreaming.

On the other hand, we’re not running an assembly line here, and that’s why how Barker comes down is important.  If the court holds that the determination of whether a defendant has been properly advised of his constitutional right depends upon the context of the proceedings, especially when there’s a written plea form which can be considered in conjunction with the colloquy, that will be one thing.  But if the court holds that “call” is the same as “compulsory appearance,” and especially if it buys into O’Connor’s and McGee Brown’s sentiment that the obligations of the judge can somehow be shifted to the defendant’s counsel, it will be an indication that “strict” compliance isn’t all that strict.