Gaming The Record (And Welcome Back, Kopf)

Shortly after Judge Richard Kopf used the cyber-fashionable acronym “stfu,” revisisted the efficacy of judicial blogging, and made the proper decision to stay the course, with perhaps a lighter step, a post of some metacognitive significance slid in between that hasn’t received the attention it deserved.  This is why Hercules and the Umpire is such a valuable asset, regardless of whether the lingua franca doesn’t meet with the approval of every person with a keyboard.*

The under-appreciated post, stuck in the middle of a firestorm, noted that “once in a while this blog may do some good.”  Naïve as this may seem, some of us, even an Article III judge, hope to do some good once in a while.  This post discussed Sawaf v. United States, unpublished Sixth Circuit decision regarding prejudice under the Lafler and Frye decisions, that made it onto Doug Berman’s radar at Sentencing Law & Policy.

[W]e are compelled to conclude that Sawaf’s continued insistence as to his innocence does not foreclose the possibility that he would have been willing to enter a guilty plea in exchange for a 41-month sentence, despite his proclaimed innocence, if he had known about the risk that he might otherwise receive a 20-year sentence. Put simply, Sawaf’s claim that he is innocent does not conclusively establish that there is no “reasonable probability” that his decision would have been different if he had been adequately informed about its consequences.

This is a remarkable finding, an acknowledgement that innocent people may choose to plead guilty in the best legal system ever, because of the myriad incentives to cut one’s losses in the face of such an unlevel playing field where innocent people are readily convicted.  What? You thought judges didn’t know the system was stacked? They know. They just aren’t willing to take the necessary actions to stop it. But they know.

The judge wasn’t patting himself on the back (too much), but the guest post of federal appellate defense lawyer Elaine Mittleman, who proposed a “solution” to the Laffler/Frye problem of ascertaining whether a defendant was effectively informed of plea offers prior to their rejection.  She proposed that plea offers be put on the record:

A defendant should be advised before he goes to trial of the effects on the likely sentence of his decision to go to trial instead of accepting a plea offer. Having the district court advise the defendant about the potential sentencing disparities and loss of credit for acceptance of responsibility can help ensure that defendants understand and take seriously the stark differences in sentences that result from the decision to go to trial.

Defendants are carefully advised of the effects of their decisions to plead guilty. Defendants should similarly be advised of the effects of their decisions to go to trial and thereby face a longer sentence if convicted. The practice of providing the defendant with sufficient knowledge to make an informed decision would provide other benefits. The defendant’s decision to go to trial results in an extensive use of judicial and other resources. In this period of budget restrictions, a defendant’s decision that may greatly increase costs should be based on correct information, instead of possibly faulty assumptions.

Judge Kopf credits this proposal for being ahead of the curve on filling the gap, and the impetus for his own standing order requiring that pleas be put on the record.  To an appellate lawyer, making a record is always a wondrous thing, as the absence of a record leaves them with nothing to work with.  To a judge, a record protects them from later allegations of claimed error, even if not theirs.

But to a defendant, this “solution” is a sham. Worse, it’s a coercive sham, all to impress upon them how their options are life or life plus cancer.  It’s only about how many years they will spend in prison; the notion that they might be innocent, that they might not want to make a choice between too long and forever, has no place in this newly beloved record.

In the case of Dr. Sawal, Jim Gormley, who comments at Berman’s blog that he worked on the §2255 habeas motion, offers some background to the case that somehow failed to make it into the 6th Circuit’s decision.

The young lawyer (Russell Alred) who caused this situation was only 3 years out of law school and had never handled a federal criminal case before in his life. He did not even purchase a copy of the Federal Sentencing Guidelines Manuel until after his client (Dr. Sawaf) was convicted. Today, he could never get appointed to the CJA panel in the Eastern District of Kentucky, since he had no Federal criminal experience. A few years after mishandling Dr. sawaf’s case, the attorney became a Circuit Judge in Harlan County, Kentucky (far southeastern Ky., on the Tennessee border). In 2012, he was removed from office by the Kentucky Supreme court for ethical misconduct and dishonesty.

This was offered in response to a comment by “David.”

As a career prosecutor, I will say this decision (and Lafler) discourages me from making offers to defendants generally. I will be even more suspect of making offers to counsel that I do not think are particularly skilled or ethical.

Incentives matter.

The offer of a plea, and the decision to take or reject it, isn’t a simple matter of numbers, as it might appear to the Squire of Gothos.**  The decision is an amalgam of a million considerations, ranging from every nuance of evidence both for and against the charges, as well as the defendant’s risk tolerance, finances, peccadilloes of the prosecutor and judge, and everything in between.

To reduce it to numbers is absurd. Even more, the numbers are a sham, as no one can say what the post-trial sentence will be. Indeed, it’s a lie to suggest that a defendant can rely on the plea agreement to know what his sentence will be if he takes the deal in federal court, as it’s always up to the judge despite whatever offer the government makes.

Where, in the charade of a hearing where a defendant is condescendingly told that his future is either many years in prison or more years in prison, is there room to mention that his lawyer is incapable of defending him, thus offering a near-guarantee of conviction?  Or that the judge will allow in ridiculously unreliable government evidence while precluding the defense from exercising his 6th Amendment rights, and thereby assuring him a free stay in Club Fed?

So yes, there’s a record. It may be a total sham, but it’s a record. Problem solved? Hardly.

Even a half-competent judge knows how to make a record that forecloses any ability to subsequently challenge the sanitized version of propriety as seen from the bench, as opposed to the awful, messy, nastiness of the discussion between defendant and his lawyer, assuming the defendant has the good fortune to have a slightly competent attorney sitting across from him.

And then there’s the prosecutor, knowing all of this, and trying desperately to stifle the laugh as the sonorous voice of the judge explains to the defendant that if he takes the deal, he may (may, not will) breathe free air again before he dies.  One wonders why prosecutors bother to make an offer at all, leaving the only available benefit the three level reduction for timely acceptance of responsibility.  After all, as David said, incentives matter.

Yeah, great solution. At least for everybody but the defendant.

* I’m very happy that Judge Kopf has decided not to abandon his post in the blawgosphere. But that doesn’t mean he gets a free ride. Now, it’s back to business.

** For those who are unwilling to spend an hour of their life learning from the great philosopher, Gene Roddenbury, this is the dialogue to which I refer:

MCCOY: You should taste his food. Straw would taste better than his meat, and water a hundred times better than his brandy. Nothing has any taste at all.
SPOCK: It may be unappetizing, Doctor, but it is very logical.
MCCOY: There’s that magic word again. Does your logic find this fascinating, Mister Spock?
SPOCK: Fascinating is a word I use for the unexpected. In this case, I should think interesting would suffice.

KIRK: You don’t find this unexpected, Mister Spock?
SPOCK: That his food has no taste, his wine no flavour? No. It simply means that Trelane knows all of the Earth forms, but none of the substance.

10 thoughts on “Gaming The Record (And Welcome Back, Kopf)

  1. Richard G. Kopf


    You are right. Back to business. I also agree that I never deserve a pass. I don’t want one either. That said, I have appreciated your generosity. Let me turn now to the business of your post.

    Simply put, making a record of plea offers is better than not making a plea offer if you really care about protecting defendants from bad lawyers. You know the kind. The bottom dwellers who keep their clients ignorant in order to make a quick buck on a slam dunk trial for the government. It ain’t much but it is better than nothing. The perfect is not the enemy of the good.

    All the best.


    1. SHG Post author


      I believe the phrase is “the perfect is the enemy of the good,” but the problem either way is this, in my view, fails to achieve “the good,” or even the modestly useful. Indeed, putting the plea offer on the record, limited to the numbers without more, feeds into the facile perception and coercive atmosphere that ignores the salient reasons to reject the offer. While the court is giving the defendant a beating with the fabulous plea option, the defense lawyer isn’t going to respond, on the record, with his evidence and theory, contrary reasons to reject the offer, insight into the failings of the prosecution’s case or impact of the players’ strengths and weaknesses.

      But you raise another issue, which we are all too painfully aware of: the bottom dwellers. There are two types, the ones who are self-serving and malevolent, and the ones who are too clueless, too inexperienced or too incompetent to realize that they are the problem. Is the answer to their practicing law in a criminal case in federal court to put plea offers on the record, or is the answer that they should not be allowed to appear in the case at all? These lawyers are another of our dirty little secrets, with glowing websites and promises of deep love, caring and competence, all of which is total garbage. See Rakofsky v. Internet.

      The cure to bad lawyers isn’t the creation of bad records. It’s ridding the profession of bad lawyers. And bad prosecutors. And, dare I say it, bad judges. The perfect is the enemy of the good. As the old lawyer joke about 100 lawyers at the bottom of the ocean goes, this would be a good start.

      1. Wheeze the People™

        All kidding aside, I’ve always heard the joke with 10,000 lawyers as opposed to 100 . . .

        An attorney who is self-sacrificing, benevolent, clued-in, experienced, and competent is worth her weight in gold. The other kind, not so much, except as chum . . .

  2. Marc R

    Until people actually win 2255s for Rule 11 violations there’s not much incentive to fix the plea process, much less add another layer of inquiry for those rejecting pleas. Obviously I like the idea of pleas going on the record but a lot of it is very fluid; lots of back and forth between the government and defendant, sometimes you’ll have 20 permutations of offers in the last 3 days before a plea.

    Cynically, another reason the offers will never go on the record is because the government makes offers not just based on the defendant but on the quality of defense counsel. You think the government wants any n00b lawyer to look for similar pleas on similar charges to have leverage when negotiating?

    1. SHG Post author

      Fluid? It can’t be any other way. The agreement is to level and enhancement, but no plea agreement in federal court takes the sentence out of the judges hands, whether on plea or after trial. We’re fighting ghost sentences, vagaries at best. No lawyer can guarantee a sentence, whether on plea or after trial. The only relative suggestion is that a sentence after a plea will be less than a sentence after a jury conviction, except even that isn’t guaranteed.

      1. Marc R

        More accurately, it’s the removal or modification of charges, i.e. “fine, i’ll drop counts 112-145 of the 3rd superseding indictment.”

  3. Robert L. Abell

    Recently, Senior Circuit Judge Damon Keith of the Sixth Circuit, observed in Robertson v Lucas, a malicious prosecution case that followed a corrupt prosecution in which the government was forced to concede that the plaintiffs’ guilty pleas should be vacated, on the phenomenon of innocent defendants pleading guilty:

    The pervasiveness of the corruption in this investigation highlights plea-bargaining’s “innocence problem.” It is a troubling, yet undeniable, fact and reminds trial courts that innocent people plead guilty to crimes for which they are not guilty because they are aware that if they were to lose at trial, their punishments would be more severe than the punishments they would receive upon the entry of a guilty plea. At present, over 96% of federal convictions result from guilty pleas – very few cases ever go to trial. Criminal suspects are often encouraged plead guilty by prosecutors, whose own careers are enhanced by the number of convictions they secure, and by trial courts, which hand down discounted sentences for those who demonstrate so-called acceptance of responsibility by pleading guilty. “Through charge selection and influence over sentencing ranges, prosecutors today possess striking powers to create significant sentencing differentials.”

    In the context of the fallout of Operation Turnaround, then, the district court’s determination that Plaintiffs “received the benefit of their guilty pleas” and yet were trying to “have things both ways” is disturbing. Indeed, such attitudes contribute to the perils of plea-bargaining; an accused person who senses hostility from the trial court may opt to plead guilty even if he or she is innocent, in order to avoid being since the trial by that judge. That the government itself was forced to vacate Plaintiffs’ guilty pleas after the extent of law enforcement impropriety was revealed not only undercuts any claim that Plaintiffs have somehow enjoyed an unfair advantage during the course of these proceedings, but also highlights the fallacy that guilty pleas are only entered by guilty people.”

  4. PaulaMarie Susi

    Fortunately, we have an overabundance of fine counsel in the EDNY. In the unlikely event I (or the judge) am/are unimpressed by counsel, or fear incompetence, we’ll appoint co-counsel to make sure the deft has the best representation possible. As to eating whatever poor plea offer is presented, we can usually make it a bit more fair at sentencing. But yeah, it sux.
    (and major kudos for the homage to The Great Bird of the Galaxy)

    1. SHG Post author

      EDNY has some excellent CJA panel members, an abundance of riches. My experience is that it’s the retained non-fed guys who walk over from down the road apiece and demonstrate off the top that they have no business at Cadman Plaza. I love it when they announce their intention to make a motion to inspect and dismiss or tell their clients that they’re sure the prosecutor will offer them an ACD. And everyone in the courtroom cringes.

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