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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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