Three little words that have become a football in the game of justice.  Nicole Black at Sui Generis posts about the reversal in People v Louree, 2007 NY Slip Op 04679, where the Court of Appeals reversed a plea because of a flawed allocution.  The trial judge failed to advise the defendant at the time that he would have to serve a period of postrelease supervision.

What is interesting is that the Court overcame the prosecution’s argument that the issue was not preserved:

In so deciding, we can not shut our eyes to the actual or practical unavailability of either a motion to withdraw the plea under CPL 220.60(3), or a motion to vacate the judgment of conviction under CPL 440.10 in these cases. If the trial judge does not mention postrelease supervision at the allocution, as happened here, a defendant can hardly be expected to move to withdraw his plea on a ground of which he has no knowledge.

While there are few decisions that truly belong to a defendant in the course of a criminal defense, those that do must meet the criteria of those three little words, knowing, voluntary and intelligent.  But what those words really mean changes from moment to moment, court to court.  For the Court of Appeals to take specific recognition of the fact that the defendant cannot be held to act upon the absence of information is a rather remarkable, and positive, event. 

It’s been my experience that most defendants, even those who have been around the block a few times, have no clue what is happening in court.  We all talk very fast, and use our common shortcuts, case names or sections numbers, or expressions, as we do our work.  Ask any defendant in the hallway to explain what the judge meant when he granted a Wade/Dunaway/Huntley hearing.  Or what he gave away when his lawyer waived 180.80 or 30.30. 

To experienced lawyers, this is routine.  To defendants, this is a foreign language talking about foreign concepts.  For the most part, that’s fine.  It’s the lawyers job to control strategy, and to explain what he’s doing to the client so that the client can appreciate what is happening with his life.  But when it comes to those few decisions that belong exclusively to the client, that’s another matter.

It has long disturbed me when a state trial judge puts the screws to a defendant by offering a plea bargain under the condition that he “take it now or it’s gone.”  Justice Harold Rothwax, one-time legal aid lawyer and later judicial avenging angel, loved to screw with defendants’ heads like that.  It was a whirlwind without explanation, where kids would bargain away the rest of their lives without the slightest clue what it all meant.  Often, the numbers were so good that the lawyer would whisper “just take it” because they would never get that offer again.  When Rothwax said now or never, he meant it.  Defendants then were forced to take a blind leap of faith, without any idea of the significance of perhaps the most important decision in their lives.

While courts paid lipservice to the concept of a knowing, voluntary and intelligent act, usually referring to a waiver of rights for which men had died many times over, it was largely to explain why a defendant’s obvious ignorance of what he was doing somehow met the test.  Like most legal rubrics, it was a hurdle to overcome rather than a right to protect. 

The worst part of it was that defense lawyers are almost always complicit in the denial of knowing, voluntary and intelligent acts.  Their clients would look into the lawyers eyes, searching for some explanation of what was happening to them, and the lawyer would whisper, “don’t worry, just says ‘yes’.”  And everyone in the courtroom would pretend that the defendant understood what he was getting, and what he was losing, in the deal.

I applaud the Court of Appeals decision in Louree, and hope that it reflects a resurgence in recognition of whose life is at stake.  After a plea, the defendant goes to jail and the lawyer goes home.  It really does matter that each night, as the defendant thinks about the choice of taking the plea, that he truly understands what he did and why.  It’s his life, and his decision should be knowing, voluntary and intelligent.