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 This post discussed Sawaf v. United States, unpublished Sixth Circuit decision regarding prejudice under the Lafler and Frye decisions, that made it onto Doug Berman’s radar at Sentencing Law & Policy.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.
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.