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A wink and a nod

You're trying to work out a deal on the rape case you're handling.  You've got a final pretrial a week before trial, where you and the prosecutor go in to talk to the judge.  You explain that your client basically wants to know what kind of sentence he's looking at.  The three of you start talking about a possible sentencing range of three to five, maybe three to six years.  The judge either said this range could be fair or would be fair; you're not sure which, but it's pretty much the same, and besides, she told you you could take that discussion back to your client.

Which you did.  And your client pled.

So I'm guessing you're pretty pissed off when the judge gives your guy seven years.

That was the scenario presented in the 8th's decision last week in State v. Armstrong.  Armstrong makes two arguments:  first, that the plea was coerced, and second, that the judge should have allowed him to withdraw the plea.  Neither goes anywhere, although there's no consensus on why; two judges concur only in judgment, with no opinion.

The result isn't wildly off base.  It boils down to the fact that the judge covered herself in the plea hearing:  she told Armstrong that he faced up to twenty-two years in prison and that there was no agreement with regard to sentencing, and elicited from him that no promises had been made to him about sentencing.  What really saved the judge is that Armstrong raised the issue of an "agreement" at the plea hearing, and the judge specifically informed him that "there's no promise from this Court of how much time that you're going to get." 

So the decision is legally defensible.  But as a practical matter, well...

Over 95% of cases are settled by plea bargain, and the most critical issue in every one of them is, will the defendant do time, and if so, how much?  Would you buy a house if the contract provided that the price was between $50,000 and $250,000, and a third party would decide what that price was?

Well, you might if you got to talk to the third party and he'd tell you what the price was likely to be.

The best source of information about the likely sentence is the judge.  So we try to talk to him.

A number of judges won't even discuss pleas or sentencing.  But a lot of them will.  Some will tell you exactly what they're going to do, and are even willing to put that on the record.  Most don't go that far.  They'll give you the wink and nod about your client sounding like a "good candidate for probation" or for the lower end of the sentencing range.   Others, like the judge in Armstrong, will tell you what the likely range is. 

You've got to be careful what you communicate to your client about this.  The judge telling you that your client is a good candidate for probation means just that:  "Your guy's probably going to get paper, but if something shows up in the pre-sentence report or he acts like a dick at sentencing, all bets are off."  If you get the "good candidate" message and tell your client he's definitely going to get probation, that's on you.

But when the judge tells you that a sentencing range of three to five or three to six years sounds fair, and tells you to tell your client the judge said that, well, that's on the judge.  If you're a judge and you tell a defense lawyer to advise his client that you've got a specific sentencing range in mind, and what that sentencing range is, then you've got to understand that regardless of what you say in the plea hearing, the defendant is going to believe he'll get somewhere in that sentencing range.

The Armstrong court actually realizes that: 

We recognize that the trial court allowed defense counsel to take a sentencing range back to the defendant, knowing that the basis for doing so was to facilitate a plea. The defense attorney, in good faith, expressed to his client that the trial court stated that a sentencing range of "three to five" or "three to six" was fair.

If Armstrong had come out the other way, you better believe that a lot of judges would have adopted the "no talk" policy, and that wouldn't be a good thing.  To be sure, the Federal criminal rules flatly prohibit a judge from any role in plea bargaining, but that's not a big deal:  because of the sentencing guidelines, a defendant has a very good idea of what kind of time he's looking at.  The discretion of a common pleas judge is much greater.  If a Federal judge decides to sentence you at the low end of the guidelines instead of the high end, that's a difference of maybe fourteen months, and usually less than twelve.  If a common pleas judge sentences you for a 2nd degree felony, you're looking at a difference of six years between the low end and the high end.  Having the judge convey some indication of what the sentence is likely to be is helpful in resolving a case.  And it helps ensure that the defendant's plea is indeed knowing and intelligent.

But if you're a judge, and you're going to tell a defense lawyer what your thoughts are sentencing, you have to be aware that he's going to convey that to his client. 

Especially if you tell him to do that.  

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