What's Up in the 8th
Not much. A mere
three weeks ago, the 8th dispensed twenty-one decisions in criminal cases, each
brimming with insight and wisdom. This
past week? Only four decisions, and a
solitary criminal case.
So that case, State v.
McLin, is the one I'm going to write about.
On the surface, it's just another case holding that a judge's denial of
a motion to withdraw a plea is rarely going to be reversed on appeal. But I've been harping about the importance of
plea bargaining, because the vast majority of our cases are going to wind up in
one. McLin
is a good case to look at, because it raises a number of problems that
occur in that context.
All in the
family. McLin was indicted in three
separate cases with charges including rape, kidnapping, and aggravated robbery. The short version of the plea bargaining
process is that defense counsel came out of the box with an offer of an agreed
sentence of 7 to 15 years, the State countered with 10 to 20, the defense
attorney suggested 7 to 20, and the State agreed. McLin pled, then two days before sentencing
filed a motion to withdraw the plea. His
basis? There was an agreement between
Lin and his lawyer that Lin's father would have to approve any plea deal, the
father hadn't, and so the plea should be vacated.
The slightly longer version, though, is that the father is
the one who'd retained the attorney. That
raises a number of problems in itself:
if you're taking money from somebody who's not your client, you've got
to make clear that your only duty is to the client, not to the one who's paying
you. Sometimes people have a hard time
understanding that.
Beyond that, though, how you handle the client's family can
affect the outcome of the case. That can
be tough: family members are quite
willing to believe that if you haven't seen their son/brother/cousin in the
last three days, you don't care about his case, and if you express anything
less than an enthusiastic embrace of their son/brother/cousin's innocence,
you're selling him out.
The way I see it, though, is that your strategic goal is to
figure out what the optimal result is for your client, and try to work toward
that. In the vast majority of cases,
that means a plea. Getting the family on
board can make a big difference. I've
seen some serious cases get resolved because of the intercession of a family
member.
I'm sorry, so
sorry. Everyone understands that
about 95% of the time a defendant will get a lesser sentence on a plea than he
would in a trial. We tell ourselves that
this isn't punishment for exercising the right to trial; it's recognition that
acceptance of responsibility is the first step toward rehabilitation. And few things scream "denial of
responsibility" louder than a motion to vacate the plea, which essentially
says, "Hey, judge? Remember that part
where I said I was guilty? Just kidding."
Lin tried to have it both ways: according to the opinion, his lawyer "advised
the court that his client acknowledges his wrongdoing and 'is not saying to the
court that he is not wrong in what he did.'"
Of course, one of the criteria in favor of allowing withdrawal of the
plea is that the defendant has a potentially valid defense to the charges. You're going to be hard-pressed to come up
with a reason for a judge to vacate your client's guilty plea if you're not
disputing that he's guilty. And if you
do dispute it, your client's not accepting responsibility for his dastardly
deeds. That's a tightrope I really don't
see you being able to walk.
Know thyself... and
others. Lin certainly didn't manage
to do so. After listening to his tortured
explanations, the trial judge picked a number between 7 and 20, and darned if
it didn't turn out to be the 20.
But this gets to the heart of the matter. For the vast, vast majority of defendants,
their concerns are completely expressed in two questions: Am I going to do time, and if so, how
much? Telling him that his sentence will
be somewhere between 7 and 20 years isn't conveying any reasonably useful
information, any more than if I told you that tomorrow the temperature was
going to be between 25 and 75.
And that's where lawyers get into trouble: you want to give your client more information
than that, but the guy (or woman) who's making those decisions isn't going to
tell you much, especially in the big-number cases. No judge is going to tell you any more than
that they're looking at a particular range.
(There can be problems with that; I learned earlier this year that the "midrange"
between 2 and 8 was 6. I'm pretty sure
that would have been just one more wrong answer in any math test I ever
took.)
Obviously, you tell the client exactly what the judge told
you. But do you beyond that? Do you tell the client that, based on your prior
experience with this judge, he tends to sentence more leniently, so if it's 7
to 20 you're probably looking at the lower side of that? I think that gets into dangerous territory, if
only for managing client expectations; I'd rather have a pleasantly surprised
client than a disappointed one.
But what if it's the other way around? Do you tell him that when you're standing in
the arraignment room waiting to see which judge's name the computer spits out, this
judge is one of the three or four you don't want to get? That with this judge, getting the State to
agree to a 20-year cap was an accomplishment, because he might have gone even
higher than that?
I don't know what happened here, what Lin was told, and I don't
think it mattered; Lin's complaint wasn't based on getting a much longer
sentence than he anticipated -- he hadn't even been sentenced at the time he
asked to withdraw the plea -- it was based on the supposed agreement to include
his father in the decision. My guess is
that Lin was looking at around 15 years, and the motion added another five to
that.
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