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Figuring out where the line is

A reader left a comment the other day pointing to an article in the Dayton Daily News that Greene County judges had adopted a new procedure, in light of the Supreme Court's decision in Missouri v. Frye, to make sure that defendants have been properly advised of plea bargain proposals. .  The fanboy inclusion in the comment that this was "just as you predicted, Russ," was appreciated, but sadly, this was not demonstrative of any great prescience on my part:  given a Supreme Court decision saying that a defendant's conviction could be tossed if it turned out that he wasn't advised of a favorable plea bargain, you didn't have to be the sharpest knife in the drawer to figure that trial courts would take the extra step of making sure that a defendant was advised of the plea bargain, if only to avoid "going through all these things twice, as Bob Dylan put it in Stuck Inside of Memphis with the Mobile Blues Again.   

The article instead casts the decision as based on economics:  the procedure "could prevent costly appeals [for which] taxpayers would have to pick up the tab."  This "it's all about fairness" argument reaches its apogee with the quote from the prosecutor that "we've got to make sure this is fair.  Frankly, that's my job... we've been called the ministers of justice."  Well, yes, and with that and some people calling you a space cowboy, and some calling you the gangster of love, we've got a Steve Miller Band hit song on our hands.  While some of my best friends are prosecutors -- although I wouldn't want my daughter to marry one -- on the list of things I call them, "ministers of justice" is somewhere near the bottom of page 12.

Giggles aside, there are some obvious virtues in this new procedure, but some pitfalls, too.  The judges here in Cuyahoga County are adapting to Frye, too, but in a less unified manner.  I had a trial last week where the judge asked the prosecutor to state the plea offer on the record, and then asked the defendants to confirm that they knew of the offer and had discussed it with their attorneys.  I've had other lawyers, though, tell me that judges have gone much further, placing on the record the penalties the defendant is facing by going to trial versus those he's looking at it if he took the plea bargain, and whether the attorney has recommended accepting or rejecting the offer.  So the question is, just how far can or should judges go in complying with Frye?

Let's start with where the judge in my trial last week began:  making sure the defendant knew of the plea offer.  This can be accomplished by doing nothing more than having the prosecutor announce what the offer is.  It's hard to argue that that's going to solve a Frye problem, though.  "Yeah, I understood that the prosecutor was offering a plea to aggravated assault, but my lawyer never told me that that was a 4th degree felony and I was looking at only 18 months, as opposed to the eight years I could get if I was convicted of the felonious assault I was charged with."  There can be a big difference between knowing about a plea offer and understanding it, and a Frye argument is probably foreclosed only by the latter. 

But how far can a trial court go in ensuring that the defendant understands the offer?  Again, the judge's inquiry in my case -- whether the defendants had discussed the plea offer with their respective attorneys, and understood it -- would seem sufficient.  To be sure, this doesn't prevent a defendant from claiming that the discussions really weren't sufficiently informative, but that's a hard sell.  There are plenty of defendants who try to withdraw their pleas by claiming they were told by their lawyer that they'd get probation or some similarly light sentence, and the courts of appeals routinely reject those arguments by pointing to the plea transcript, where the defendant answers "no" when the judge asks him if anyone's promised him a particular sentence.  It's likely that a defendant's claim that he didn't really understand the plea offer because his lawyer didn't sufficiently explain it to him, when the record shows him affirmatively professing that the lawyer did explain it, and he did understand it, will meet a similar fate.

For some judges, though, "likely" isn't good enough, and they'll go the extra mile.  One way is explaining the plea offer themselves:  the State's offering you this, which involves this particular penalty.  If you go to trial, you can be convicted of this, which subjects you to this particular penalty.  As I explained last week (scroll to bottom), after taking into consideration allied offenses, acquittal of some charges, and normal sentencing considerations, especially of consecutive sentences in light of the changes brought by HB 86, there may well be a huge difference between what a defendant is theoretically facing if convicted after trial and what he's likely to get. 

In my earlier post, I'd suggested that judges should give information about maximum penalties, but on second thought I'm not so sure.  The problem is that this intrudes upon my responsibilities as the defense lawyer.  When I discuss plea bargaining with my client, I regard my principal function as giving him sufficient information to allow him to make an informed decision.  That means not only telling him what could happen, but what's likely to happen, based upon my experience.  No, I don't have a crystal ball, but there's no sense in telling my first offender client who's charged with 4th-degree felony sale, prep for shipment, and possession of drugs that he's facing 4½ years in prison, when they're allied offenses and it's unlikely that the judge will give him the maximum on conviction, even in a trial.

This leads to the basic problem I have with doing an extended hearing on this subject.  One of the most difficult things to do in an attorney-client relationship, especially in assigned cases, is to gain your client's trust.  They don't know you from Adam, they've heard any number of horror stories from family, friends, and fellow inmates about court-appointed attorneys, and they figure if the state's paying you, you're probably working more the state than for them.  And now we're going to have this long hearing where the guy in the black robe is going to tell them about the details of a plea offer, with the subtext being (a) your lawyer was supposed to do this, but we're not sure he did, so we're going to, and (b) even if you did talk to your lawyer about this, he probably got it wrong, so we're going to make sure you understand it.

Of course, anything beyond that -- what did the lawyer tell you about the plea offer, what was his advice -- clearly intrudes upon the attorney-client privilege.  That's confidential.

That gets us into a second area.  We've been talking about Missouri v. Frye, but haven't mentioned the companion case, Lafler v. Cooper, where the Court reversed a conviction because the lawyer had given erroneous advice on whether to take the case to trial.  While the Frye problem can be remedied by a hearing -- just make sure the defendant knows about the plea offer -- the Lafler problem isn't subject to that kind of cure:  while a court shouldn't get into whether an attorney recommended his client plead, there's simply no way a court can get into the reasons why he gave that recommendation.

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