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Judges and plea bargaining

I had a hearing a couple weeks back in Dayton, on a post-conviction relief petition I'd filed alleging ineffective assistance of counsel.  We'll talk about the details of that some later time, but what I found interesting was how the attorneys handle sentencings down there.  According to the attorney who handled my client's trial, he'll tell the client what he thinks the judge will do.  Then the judge will talk to the attorneys right before sentencing and tell everybody what he will indeed do.  If the attorney was off by a good margin -- prison instead of probation, near-maximum instead of minimum -- he'll ask the judge to vacate the plea, and the judge will.

I'd like to try that here in Cuyahoga County.  More on that later, too.

So it didn't come as much of a surprise to me when the 2nd District handed its decision last week in State v. Mogle(The case didn't come out of Dayton, but out of one of the neighboring counties.)  Mogle had pled guilty to two felony fours after being promised by his attorney that he'd get probation.  He didn't.  He filed a motion to withdraw the plea, the attorney stating that he thought the judge had promised community control sanctions, and the attorney had conveyed that to his client.  Although the attorney acknowledged he was "evidently mistaken," the client had relied on those representations, and should be allowed to withdraw his plea.  The trial judge overruled the motion, but the 2nd District reversed.

Plea bargaining is central to the justice system, and judges and lawyers handle the issue of the likely sentence in a variety of ways.  Here in Cuyahoga County, we have 34 judges, and there's probably a half dozen or so who won't talk to you at all about sentencing.  Probably a third will tell you pretty much exactly what they're going to do, barring something unforeseen, like finding out in the pre-sentence report that the defendant is wanted in Kentucky for child rape.  The rest will give you a pretty good idea -- "your client's a good candidate for probation," "I'm thinking of a mid-range sentence." 

Lawyers also adopt a variety of approaches on discussing sentencing with the client.  Some are very conservative, telling the client only the range of a potential sentence.  I don't care for that -- all you're doing is telling the client the same thing he could read in a law book -- but going beyond that does involve some risk.  Clients often here what they want to hear; you tell them that they've got a "good shot" at probation, and they think it's a lock.  One of the first things I do with a client is explain that he's got a number of major decisions to make, and that my job isn't to make those decisions for him, but to give him enough information so that he can make an intelligent decision.  And I stress to him that sometimes I'm not going to have perfect information:  sometimes, the best I can do is give him an educated guess.  That doesn't always work; you have to take pains to stress it.

There's a risk of miscommunication with judges, too.  There are very few who will commit themselves on the record to the particular sentence they're going to impose.  One of the problems with judges becoming involved in plea bargaining is that it might be deemed coercive by an appellate court.  Doing it directly with the defendant, rather than through his attorney, heightens the risk of that.  And it's not hard for a lawyer to misinterpret what a judge said, or for the judge to forget what he said in the month between the plea and the sentencing.  I've twice had a judge tell me in chambers that he was going to put my client on probation, and then later impose a prison sentence.  I've gotten out of it both times, but it doesn't make for a comfortable situation.

The easiest solution to this problem would be to do what the Federal rules and those of a number of other states do:  flatly prohibit a judge from any participation in plea bargaining.  There's another side to that, though.  A plea bargain is a contract, and plea bargaining is a negotiation over the terms of that contract.  As with all contracts, the more certainty of the outcome, the easier it is to arrive at a contract. 

The sentence is the only real consideration in a plea.  The judge's role in sentencing in the Federal courts, and in many states, is much more restricted than it is here in Ohio.  In the vast majority of cases, a Federal judge is imposing a sentence in the narrow range -- usually about a year -- set forth in the Sentencing Guidelines.  An Ohio judge has much more discretion:  in most cases, he decides whether the defendant goes to prison at all, and if he does impose a prison sentence, the maximum can be three or four times the minimum. 

The two most important questions a defendant will ask you are, will I do time, and if so, how much.  The more definite the answers you can give to those questions, the more likely you'll wind up with an informed plea.  

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