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What's Up in the 8th

You can take a mulligan in golf, depending on who you're playing with.  Taking a mulligan on a guilty plea is a decidedly dicier matter.  And, like comedy, timing is everything.  The continental divide here is whether you seek to withdraw the plea before sentencing or after.  If it's the former, you get the benefit of the Supreme Court's admonishment that such motions should be "freely and liberally granted."  A motion made after the sentence should be rarely granted, "and only to correct a manifest injustice."

Michael Davis thinks that he's fallen on the right side of the divide.  He pleads out in six different drug cases, and the judge tells him he could get anywhere from 3 to 39 years.  At sentencing, the judge whacks him with 22 years.  I was surprised by that, and apparently Davis was, too.  He immediately sought to withdraw the plea.

Of course, that was denied, but Davis has an interesting argument on appeal:  since the sentence hadn't been journalized -- the judge hadn't even left the bench -- at the time Davis sought to withdraw the plea, there was actually no sentence, so he gets the benefit of the more liberal standard.  Not so, says the court:  the law is clear that once the judge pronounces sentence, a motion to withdraw after that is post-sentence.  Otherwise, a defendant could "test the waters" and, if he gets a sentence longer than he wanted, he could file a motion to withdraw and, as I said, get the benefit of the more liberal standard. 

Big whoop.  As the numberless legions of my regular readers know, having been routinely subjected to my jeremiads on this subject, the "more liberal standard" is bullshit.  Hardly a week goes by without some appeal over a denial of a plea withdrawal.  I think I can remember maybe five being reversed.

There's another interesting aspect to Davis.  At the hearing on the motion to withdraw, Davis contended his lawyer told him he'd get only three years.  His girlfriend corroborated this, claiming that text messages between her and the lawyer would support this, but tragically, her cell phone had been lost and she no longer had the texts with the lawyer.  Fortunately, that attorney's cell phone had remained unscathed, and contained the texts which specifically refuted the allegations.

I don't mean to sound like Uncle Fuddy-Duddy and talk about the "good old days"-- trust me, nostalgia isn't what it used to be -- but it's so much easier to communicate with a client nowadays.  I always get his email address, and it's so much easier to send the client an email with the next court date.  Or text them that I have something in another courtroom, and I'll be up to see them soon.

The problem with emails, much less texts, is that you don't put much thought into them.  Anything substantive about a case I put in a letter.  Not because it's a record, but because writing a letter means I've spent time thinking through what I meant to say.  Sometimes, the casualness of the medium contributes to casualness of thought. 

The plea hearing in State v. Clark started going south when the judge asked Clark whether he'd had enough time to talk to his two lawyers, and he responded, "Honestly, no."  That the plea ultimately went forward, and was affirmed by the court of appeals, provides a lesson for trial judges:  Take.  Your.  Time.  The opinion is replete from quotations from the record, where the judge carefully elicited from Davis that he fully understood the proceedings and wanted to go forward with his plea. 

The big issue in State v. Jennings is whether the court should have removed a juror during deliberations.  The jury got the case on a Thursday.  They were in an inquisitive mood:  they submitted three questions early Friday morning, and another three a few hours later.  At 12:30, they came back with five more, including this one:  "What happens if we're in disagreement about all of the counts, because we are in disagreement as to whether the defendant was even proven to be on the scene that night?"  The judge told them to continue deliberating.

They retired that evening without reaching a verdict.  On Monday morning, the judge informed the parties that Juror No. 1 called another juror and then contacted the court indicating "that she was starting work that day, and that she was getting a promotion and she was informed that if she failed to show up, her job was in jeopardy."  Without any further ado, the judge removed the juror and replaced her with an alternate.

Well, there was some further ado:  the defense requested a hearing, suggesting that the real reason for the juror didn't show up was because she'd been bullied by the others because she was the source of the "disagreement."  The judge declined, and that's the focus of the appeal.

The majority rejects the argument, finding that it's based on sheer speculation:  we don't know if Juror #1 was indeed the one who was causing the disagreement, or even how substantial the disagreement was; there was no indication that the jury was in fact deadlocked, and had been deliberating for only a few hours at that point. 

Of course, one might argue that that's the whole purpose of a hearing:  to replace speculation with evidence.  Still, given the state of the case law, it's hard to fault the majority for its decision.

One part of the opinion, the treatment of the Batson challenge, can be faulted.  The majority never provides the substance of the challenge, instead relying upon Batson's holding that "the defendant must demonstrate that members of the defendant's race were 'substantially underrepresented' on the venire from which his jury was drawn,' or that the jury venire was "selected under a practice providing the opportunity for discrimination.'"  The court decides that because "there is no record as to the racial composition of the jury," Jennings failed to make a prima facie case of discrimination.

But the quoted portion from Batson only applies to a challenge to the entire venire; in fact, prior to Batson, that was the only way of raising the issue of discrimination.  Batson provided a means of challenging the use of a peremptory to remove an individual juror.  If the juror is of the same race as the defendant -- which the majority concedes is the situation here -- the removal does make out a prima facie case.  It then becomes the burden of the prosecutor to provide a race-neutral explanation, and the job of the court to evaluate that.  The racial composition of the venire is irrelevant.  There could be ten blacks on the jury, and the removal of one still raises the possibility of a Batson challenge.  

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