What's Up in the 8th
You've worked out what you think is a good plea for your client, but come sentencing he wants to back out of it, claiming you "pressured" him into taking it. What you do? Withdraw? Proceed to argue as best you can that he should be allowed to withdraw the plea you worked out? Respond to his allegations that you pressured him into taking it?
Or you could repeatedly call your client a liar, remind the judge that the competency report indicated he was malingering, advise the judge that your client was trying to manipulate the court, tell the judge that the evidence against him was so overwhelming that a plea was his only real option, and ask that his motion be rejected.
The lawyer in State v. Linder chose the latter tack, and that produces a curious result. The panel first decides that the defendant didn't show a satisfactory reason for withdrawing the plea. (Absent a showing that the defendant was being waterboarded at the time of the plea, it's hard to find an example in the case law of what might be a satisfactory reason.) The panel then concludes that the lawyer should have been disqualified for purposes of the sentencing, finding that in light of what had just occurred with the plea withdrawal, counsel couldn't be expected to effectively represent his client, and remands for a re-sentencing.
That begs the question, just how effectively did counsel represent Linder in the withdrawal hearing? Denigrating the client and informing the judge that the client was guilty as sin are not normally regarded as hallmarks of zealous advocacy.
The outcome of the plea withdrawal was determined by the panel's decision to regard this as an ineffective assistance claim. That requires the defendant to show prejudice, and the court finds none.
But the argument in Linder (I handled the appeal) was that this was structural error. The panel rejects this, finding that "counsel was neither 'totally absent' nor 'prevented from assisting' Linder." But the test for structural error is whether counsel "entirely failed to subject the prosecutor's case to meaningful adversarial testing." That's rarely achieved: simple mistakes, even a lot of them, won't suffice. But if counsel told the jury in opening statement and closing argument that his client was guilty, and did nothing in between, I doubt anyone would find legal excuse in the fact that at least the attorney was there.
Structural error also pops up in State v. Moton, an aggravated murder case. The judge expelled three spectators during trial. That's a pretty much de minimis violation of the right to public trial, but there are complications: to do so, the judge has to make certain findings, which weren't made in this case, and there's a question as to whether this constitutes structural error. Resolution of that issue isn't helped by two prior Ohio Supreme Court decisions, two weeks apart, the first holding that it was structural error, the second reviewing it for plain error. The panel decides to review for prejudice, and finds none.
The other issue in Moton is prior calculation and design. Two years ago, in State v. Walker, the Supreme Court basically adopted the Taylor factors as test of sufficiency for that: that the parties knew each other (especially if there was bad blood between them), whether the defendant gave thought and preparation to the murder site and weapon, and whether the act was "drawn out or an almost instantaneous eruption of events." The evidence suggested that this was a drug deal gone bad: Moton and his victim had been in contact during the day, the two showed up in separate cars in a parking lot, and witnesses saw shouting before the perpetrator opened the victim's car door and fired two shots.
That suffices for the first two prongs of Taylor, but the third is a bit murky, so the court relies on the statement in Walker that "shooting a person execution-style may also establish, at least in part, prior calculation and design." I'm not sure how helpful that is, because you can make a decent argument that just about any shooting can be classified as "execution-style." The facts in Walker were that after getting into a fight, Walker got up, walked behind a pillar, and shot the victim in the back. Then again, the key to the outcome there was that none of the Taylor factors were present, and here two were.
There are a number of hinky things going on in State v. Brownlee, another aggravated murder case. Brownlee's accomplices rolled over on him, but there's no accomplice instruction. The panel decides that's not plain error, or ineffective assistance of counsel, because the attorney might not have wanted one since one of the accomplices did give some favorable testimony, so that goes into the "strategy and tactics" bin. The defense introduced a recording as an exhibit, but that never found its way into the jury room for deliberations. Too bad, so sad: that's defense counsel's fault. The trial judge at one point, off the record, said that the defense was simply tossing up "Hail Mary's," but because defense counsel said, on the record, that that would've been error if it had been said in front of the jury, the panel decides it wasn't said at all.
Brownlee also reveals the divide among judges as to how involved they want to get in plea bargaining. A growing number here won't discuss the subject at all, but the judge in Brownlee takes a decidedly more activist role, to the point of offering to get the prosecutor to work out a deal with Brownlee's girlfriend, another co-defendant. The judge also spent a lot of time urging Brownlee to plead, to the point where the panel acknowledges that "this record shows that the court pushed hard for a plea bargain and was annoyed that Brownlee refused to accept one." That annoyance led to the imposition of a sentence of 33 years consecutive to life without parole, which the panel again concedes that "viewed in isolation, might be viewed as vindictive."
Ya think? But of course it's not viewed in isolation, and after the Supreme Court's two decisions on "trial taxes" last year, the only way a judge is going to be found to have imposed a vindictive sentence is if he says, "I'm tacking some extra years onto your sentence because you exercised your constitutional right to trial."
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