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Let's Make a Deal, Part 1

You've worked your butt off to get a plea deal. As usual, that means you've spent as much time, if not more, negotiating with your client as you have with the prosecutor, managing his expectations, explaining his options, guiding him toward the realization that those options are either doing some time in prison, or doing a lot of time in prison. You finally work everything out, but when you show up the morning of the plea hearing, the prosecutor advises you that the deal's off the table.

That's the scenario from the 8th District's decision a few weeks ago in, State v. Padilla

According to the State, Victor Padilla was a key man in a stolen car ring. One of the auto thefts turned out badly; the police interrupted it, and the ensuing car chase resulted in the death of the thief and a pedestrian. Padilla and 34 others were indicted on 258 counts, and Padilla's indictment contained two counts of involuntary manslaughter. The parties worked out a plea where those charges went away. Here in Cuyahoga County, that meant the investigating officers and the prosecutor's supervisor had to sign off on the deal. Come the day of the plea hearing, though, the assistant prosecutor had bad news: the supervisor of the investigating officers was irked about the dismissal of the manslaughter charges and complained to the prosecutor's supervisor, who scuttled the deal. Padilla eventually pled to the manslaughter counts, but appealed, claiming he was entitled to specific performance of the original deal.

The key case on plea bargains is Santobello v. New York, where the Supreme Court held that a plea bargain was indeed a contract. In that case, the Court held that a defendant was entitled to withdraw the plea if the prosecution breached it, in that case by recommending a maximum sentence where it had agreed at the plea hearing not to recommend a sentence. But that highlights the real problem with Padilla: what exactly was the agreement? They're not in the record, and were not reduced to writing. One of the major bones of contention, for example, is that the defense claims that the prosecution agreed to a two-year sentence, which the prosecution heatedly denies; there's nothing in the record about it one way or the other.

In rejecting Padilla's argument, the court could have stopped there. After all, the underlying legal theory is that a plea bargain is a contract, and a contract requires a "meeting of the minds": if the parties can't agree on what the agreement was, there wasn't one. But the comparison to contracts isn't a perfect one; there are two aspects where it differs.

The first is that, regardless of what the parties agree to, the judge has the right to reject it. That doesn't happen frequently -- judges are usually only too happy to get cases off their dockets -- but it does happen. I've got an appeal now where the defendant was charged with child rape, and the parties worked out a deal to abduction, a third degree felony with no sex registration requirement. The judge rejected the deal, forcing the case to trial, where the defendant was convicted and ultimately given a 25-to-life sentence. I haven't started work on it yet, but I do know I've got an uphill battle. The law on this is that a judge's ability to reject a deal is a broad one; it's reviewed for abuse of discretion, so you know how that story normally ends.

The second difference is that a plea agreement is what is known in law as an executory contract: it isn't complete until the defendant actually enters a plea. In short, up until the plea hearing, the defendant isn't bound to accept it. Once the defendant has accepted it, of course, the plea is fully enforceable, by specific performance. That was the situation a few years back in the 8th's decision in State v. Latimore: the judge had agreed to a 12-year sentence, but when the victim showed up at sentencing and told how Latimore had blown off his arm with a shotgun, the judge decided the plea deal wasn't fair, offering Latimore the choice of pleading to the indictment or going forward with trial. Latimore chose what was behind Door B, and wound up with a 23-year sentence. Not the way it works, said the appellate court, reversing to allow Latimore to take the 12-year deal. But there was no plea hearing in Padilla.

Does that mean a deal's unenforceable until the plea hearing, regardless of how specific it was? Not necessarily. As the court points out, there's a due process issue here: "a constitutional right to enforcement of plea proposals may arise before any technical 'contract' has been formed, and on the basis alone of expectations reasonably formed in reliance upon the honor of the government in making and abiding by its proposals." What this means, though, is that specific performance of the plea agreement before the plea hearing isn't available unless the defendant can show that he acted in reliance upon the proposed offer. Padilla tries to fit himself into that by arguing that he made a proffer to the police during plea negotations, which may have included inculpatory statements. The court rejects that, noting that the statements were given before the plea offer was made, let alone accepted. Had the statements been made after the agreement was reached -- whatever that agreement was -- it might have been a different story.

So what's a poor boy -- i.e., defense lawyer -- to do? The concurring opinion recites in more detail how this whole thing got screwed up, and subtly reminds one of the old aphorism about an oral agreement not being worth the paper it's not written on. A written plea agreement would have probably changed the outcome here. True, the judge does have discretion to reject the agreement, but it appears here that the judge didn't reject the agreement so much as let the parties continue bargaining, because he wasn't sure what the agreement was. Written plea agreements, by both the prosecutor and the court, are standard practice in many counties. Sure, they don't have the volume of cases we do here, but they don't have 150+ county prosecutors, either. And if they don't want to draw one up, you do. A fax, letter, or email to the prosecutor handling the case saying, "At the pretrial the other day, we agreed that my client would plead to X and Y, and that you'd do Z. Please advise if that's not correct" would probably have done the trick here.

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