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What's Up in the 8th

If you're representing co-defendants, there are a number of things you ought to do.   Carefully explaining the potential conflict to your clients in advance is a good idea, so you don't wind up with them asking pointed questions about it of the judge during the plea hearing.  Getting a signed waiver, where you fully explain that potential conflict in writing, is a good idea, too.

Not doing it at all is the best idea.

That's the lesson of State v. Haugabrook.  The same attorney was representing a husband and wife charged with cultivation and trafficking of marijuana.  They were offered a package deal - he'd plead to a second degree felony, with a mandatory minimum of five years in prison, while she'd get a fourth degree trafficking charge, for which she ultimately got a year's probation. 

The plea hearing went south as soon as the judge asked the two whether they were waiving any potential conflict of interest.  The husband said he wanted separate counsel, because his wife wasn't guilty of anything.  After an extended conversation along those lines, the judge took a recess to let the lawyer talk to the pair.  When court resumed, the judge asked them if they waived any potential conflict, and they both tersely replied, "I waive." 

Not good enough.  The trial judge has the obligation to inquire when there's a potential conflict, and the panel finds the court didn't go far enough in exploring that.

Every few weeks, one of the lawyers on the state or local criminal bar listservs will ask, "Do I have an ethical problem if...?"  The best answer is always, "If you have to ask, you probably do."  That's not necessarily true; there's no per se rule against representing co-defendants.  And a defendant can always waive a potential conflict.  But usually, as here, it's just not worth the hassle, especially where you don't nail down a waiver before walking into court to do the plea.

The appellate lawyer in State v. Machuca apparently subscribes to the theory, Go Big or Go Home.   Machuca's convicted of a date rape, and instead of contenting himself with evidentiary errors or sufficiency arguments, he argues a "structural error" in that "rape trials have been so tilted in favor of female victims that rape defendants, including appellant, cannot receive a fair trial."  Evidence of this is found in the fact that "the statute refers to the victim as the 'victim' and the perpetrator as the 'offender.'"  Plus, there were eleven women and only one man on the jury, the unfairness of this undercut by the fact that defense counsel at trial used his peremptories to excuse four males. 

To be sure, there is an assignment on manifest weight, supported by the observation that "the dress the victim [oops] was wearing was provocatively short."  I didn't read the brief, but I wouldn't be surprised if one of the arguments headings was "The Bitch Was Asking For It."

Ohio's kidnapping statute is the subject of State v. Ramos.  The statute's extremely broad:  it covers "any restraint of liberty."

That would seem to put Ramos behind the eightball.  He's indicted on two counts of aggravated murder for killing his wife, but the jury finds that he's not guilty of the prior calculation and design charge.  Not so for the count of killing his wife in the course of a kidnapping:  before he stabbed her three times in the neck, he also tried to strangle her. 

The panel finds that he didn't commit the kidnapping, because he wasn't trying to strangle her to restrain her of liberty, but to ... well, strangle her.  The opinion doesn't provide much in the way of explanation as to why not, but the good decisions on kidnapping are few and far between.  Take this and run with it.

To my utter astonishment, there was a case on plea withdrawals last week.  Those are exceedingly rare.  Besides the four decisions on that the week before, I mean...

Okay, I'm waxing sarcastic, but State v. Porter has some significance.  First, it teaches a valuable lesson for defendants.  Let's say you've entered a plea with an agreed sentencing range of, say, 10 to 20 years.  Unless you can beat the long odds of getting the judge to let you withdraw the plea, it's best not to try it.  It's difficult to convince the judge that you're remorseful, an important consideration for him in deciding whether to go high or low, when you're standing telling him you didn't do, despite having pled guilty to it.

Unsurprisingly, then, Porter finds himself at the upmost range of the agreed sentence, but Porter is nonetheless noteworthy for something else.  In my post last week about State v. Alexander, another plea withdrawal case, I mentioned that the court used the four factors in its 1980 decision in State v. Petersheim, but acknowledged that other courts use a more expansive list of factors.  In Porter, we learn that the 8th has indeed adopted the more expansive list:  the factors are up to nine.  I guess I didn't get the memo.

The list now includes things like the timeliness of the motion, and the prejudice to the state of allowing withdrawal.  That's not going to do a defendant any good if he pleads guilty on the day of trial and then asks to withdraw the plea on the day of sentencing, as did Alexander.  (Porter pled on the day of trial as well, and then tried to withdraw his plea after he refused to testify at the co-defendant's trial, which was part of the plea bargain.) 

But it might help you out, especially at the trial court level, if you've got a situation where the defendant pleads out in advance of trial, and then tries to withdraw it well before sentencing.  He's still going to need a reason besides "I changed my mind," but this is better than it was before.


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