Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Judges and plea bargaining

It's funny how you can think that a case is hopeless, but once you start working on it, it gets better:  possibilities develop that you hadn't seen.  I had that experience last week, on an appeal.  I was this close to filing an Anders brief on a case, but I don't like to do that, and caught something in the transcript that I could argue with a semi-straight face.  By the time I was done, I was semi-convinced that I had a better than even money chance of winning the case.

And I sort of hope I don't.

The case involved a guy we'll call Carl.  He'd forced some woman out of a Rapid station at gunpoint, then dragged her behind a house and raped her twice.  I didn't say "allegedly," because there wasn't too much doubt about it; not only did the victim, who was a complete stranger, identify him, but his DNA was found in trace amounts of semen taken from her mouth.  He'd been charged with one count of kidnapping and two of rape, with 3-year firearm specs, a sexual motivation spec, and a sexually violent predator spec.  (Carl had a previous sex offense conviction, which reminds me, did I tell you that his companion case was a failure to verify address?  No?  Well, it was.)  With the specs, Carl was looking at 33 to life, but he copped to the kidnapping and one count of rape with the gun spec, and the SVP spec was dropped.  The judge sentenced him to 13 years, and that was that.

Two months later, Carl filed a pro-se motion for delayed appeal.  The court granted it and assigned me the case.

The only thing I caught when I read the transcript was the judge saying at one point, "I think you should consider a plea," so I figured I could argue that the plea was coerced by the judge's statement.  In many jurisdictions, the law bars participation by the judge in plea bargaining; the rules flatly prohibit it in Federal court, and in several states it's a per se violation of a defendant's 5th Amendment rights, which require that a plea be voluntary.  Ohio doesn't have a flat rule, and so the decision's made on a case-by-case basis.  The key case is the Ohio Supreme Court's 1980 decision in State v. Byrd, where it reversed a death sentence because of the judge's overt participation in plea bargaining.  But there the judge had gone so far as to bring the defendant into chambers - without his attorney - to pressure him into accepting a deal that the judge had himself negotiated with the prosecutor's office.  This wasn't anywhere near that.

As I read the transcript again while writing the brief, though, a more subtle pattern emergedThe judge conducted a pretrial in the courtroom, on the record, four days before trial.  He had the prosecutor recite not only the plea offer, but the evidence the State anticipated it would introduce.  The judge hinted at the strength of the evidence, questioned the defendant as to why he would "wish to go to trial without any explanation for your DNA being there," and eventually promised him that he'd be sentenced to a flat 13 years if he pled, as opposed to the life sentence he'd get if he was convicted.  This is one of those situations where the whole is greater than the sum of its parts:  if you take the comments in isolation, it's no big deal, but if you look at the big picture, the judge was plainly trying to get Carl to plead.

Here's why I sort of hope I don't win: 

Because defense attorneys love judges like this.  They make our jobs so much easier.  Next week, I have to try the most untriable case I've ever had.  Take my word for it.  I've had trials that were really slow-motion guilty pleas, but this one takes the cake.  It's horrible.  We had a pretrial last week, just to put the offer on the record, and if the judge had done anything short of beating my client to get him to plead, I would have been ecstatic.  (Hell, on second thought, I wouldn't have balked at the beating.)  And let's face it, the judge did Carl a solid.  If Carl had insisted on a trial, he would've been convicted and, with the life tail, could easily have wound up doing twice or more what he was sentenced to on a plea.

Yes, I know, this intrudes on the lawyer's function.  We're supposed to build a relationship with the client, develop his trust in his, to the point where we can discuss the pros and cons of a plea offer and, with our assistance, come to a rational decision about it.  Well, good luck with that.  We've all had cases where the comparative benefits of taking a plea would've been obvious to a three-year-old, and the client just wouldn't listen.  We can explain the benefits of a plea bargain to our clients until we're blue in the face, we can cajole, we can badger, we can beg, but sometimes it doesn't make a real impression on the client until he hears it from the guy sitting on the bench and wearing the robe.  That's different.

And that's why it's bad.  As the court explained in Byrd and other cases, if the defendant hears the judge telling him that he better plead - the same judge who's going to be presiding over his trial, and sentencing him if things go south - the defendant may figure that the judge is going to hold it against him for not pleading, and that grudge is going to manifest itself in the judge's rulings at trial.

This situation lends itself to a very simple rule:  the judge's sole role in the plea process is to make sure that the plea offer has been communicated to the defendant.  He can explain the minimum and maximum penalties that could be imposed after trial, and the minimum and maximum penalties that could be imposed on the plea.  There are times when we're not going to like it, when we're going to look for the judge to bail us - and our client - out.  But that's not the way the system should work.


Recent Entries

  • January 17, 2018
    What's Up in the 8th
    When not to decide cases on allied offenses and pre-indictment delay
  • January 11, 2018
    Case Update
    Three new decisions from the Ohio Supreme Court
  • January 10, 2018
    To the barricades!
    Why I'm a threat to the Ohio state government
  • January 5, 2018
    Search and seizure in the digital age
    Do the cops need a warrant to get cell phone data?
  • January 3, 2018
    What's Up in the 8th
    We talk about me a lot, but there's some other stuff, too
  • January 2, 2018
    He's baaaack
    So I thought I'd start my first post in six weeks by explaining why it's my first post in six weeks. Ever run into somebody and ask the obligatory question, "How are you doing?" And they proceed to tell you...
  • November 15, 2017
    What's Up in the 8th
    Plea withdrawals (again), sexual predator hearings, and an appellate law question
  • November 7, 2017
    What's Up in the 8th
    Don't listen to prosecutors about the law, good new/bad news jokes on appeal, and the Byzantine course of a death penalty case
  • October 24, 2017
    What's Up in the 8th
    Trying to change the past
  • October 16, 2017
    En banc on sentencing
    The 8th District takes a look at what State v. Marcum means