The issue of coercive plea bargains has long been a sore point in the course of criminal proceedings, not to mention a frequent subject of discussion here as regular readers are aware. But in the case of dentist and former Hempstead School Board member, Terry Grant, a variation on this theme was more than the Appellate Division could handle.
The Second Department reversed Grant’s conviction when Justice George Peck, clearly getting annoyed with the defendant for his failure to take up a plea offer of probation and restitution for a 40 count indictment changing, inter alia, grand larceny and insurance fraud:
On December 18, 2006, the court stated that the case was “getting old meaning it’s going to be either disposed of soon or it’s going to be tried soon.” The court then told the defendant that it had reviewed the minutes of the grand jury proceedings and had concluded that, in view of the “overwhelming” proof presented, his chances of prevailing at trial were slim. The court advised the defendant that, if he were convicted after trial, he would be sentenced either “to a short period of upstate time . . . or downstate time for a long period . . . [such as] one year or consecutive nine-month sentences or something like that.” The court stated, however, that, if the defendant were to plead guilty within the next two days, it would order a pre-sentence report and then either sentence him to “probation coupled with restitution” or, if it “had to impose jail,” it would permit him to withdraw the guilty plea. The court warned the defendant that “[t]he time has come for you to fish or cut bait.” The court said it would adjourn the case for the defendant to decide whether or not to accept the plea offer, and that, if he did not, the case would be “farmed out for trial.”
But Grant didn’t bite. This doesn’t often happen after the judge makes clear that the evidence is “overwhelming” and the defendant isn’t going to win, which has a surprising tendency to crush what little spirit a defendant might have to fight. As it’s meant to do.
So what does a judge do when his “overwhelming” speech doesn’t fly?
“THE COURT: That’s—that is a situation that has to be addressed and I will address it right now. If he wishes the plea deal, then I will—and he takes this plea, I will continue him in the bail status that he is because if he violates the terms of his bail while he is pending sentence, I will not be bound by my commitment. If he doesn’t take the plea deal today, I’m going to remand him until Monday…
Ahem. Just in case you missed that little fist in the velvet glove, the offer was take the plea to probation now, or be remanded (held without bail, for those of you who aren’t lawyers) until you do take the plea. Well, that’s a nasty little deal, isn’t it.
Shockingly, Grant decided to take the deal and remain free, rather than be tossed in jail for his refusal to plead guilty. Thankfully, this was too much for even the appeals court to tolerate. After paying due acknowledgment to the role of plea bargaining in the criminal process (yawn), the J.P. Steven Fisher held:
Moreover, it is hardly befitting a legitimate system of plea bargaining to require a defendant, in effect, to choose between, on the one hand, admitting guilt and remaining free, and, on the other, maintaining innocence and going to jail (see People v Sung Min, 249 AD2d 130, 132).
Because an immediate change in the defendant’s bail status is not an appropriate consideration in plea negotiations, when the court threatens to increase bail or remand the defendant unless a guilty plea is entered, any resulting plea cannot be deemed voluntary because the defendant’s decision to plead guilty would no longer represent a free choice among legitimate alternatives. We hold, therefore, that a threatened change in bail status may not be used by the prosecution or the court as a “bargaining chip” to persuade a defendant to plead guilty.
As the view from the trenches is that trial courts have to move a lot cases to meet standards and practices, which means that they need pleas, pleas, pleas to keep the system working, we recognize that judges may forget that defendants still get to decide whether to cop the plea or go to trial without the full coercive weight of the court coming down on their heads. But that’s no excuse, ever, for using remand as a weapon to force a plea. Indeed, no plea should ever be forced, as inconvenient as that may be to the lower court judge desperate to push cases through the system.
What’s striking about this decision is not that it came out the right way, but that the use of coercive methods remains alive, well and essentially unchecked. It’s so common as to be taken for granted by both judges and lawyers, and it’s important that both see a decision like this as a reminder that coercing pleas, even pleas that the judge thinks are really sweet deals and can’t be passed, is antithetical to everything we do.
Yes, cases that take too long clog the system. Judges who don’t move cases along get a stern “talking to” for their failure to comply with standards and practices. So what? If the defendant doesn’t want to take the plea, move the case to trial. Set a firm trial date and the defendant will have to fish or cut bait. Nothing wrong with that at all. The lawyer wants to delay the case because he got paid bupkis or can’t actually try a case and will be humiliated? Tough noogies.
But using coercion to force a plea, even a good plea, is never the right solution.
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That judge should be in jail.
Perhaps so. Perhaps not. But you don’t get to say so if you’re too much of a coward to leave your name.
No doubt a bad decision on the part of Peck. Notably, he has the reputation (and my experience with him has been) that he cuts through BS offered up by both prosecutors and defense lawyers.
Couldn’t Peck have achieved the result he was going for by just telling the defendnat that he, Peck, would not agree to a sentence of probation if the defendant didn’t take the plea that day? Its basically just as coercive, but something about it strikes me as the type of thing that happens all the time without much fuss, whereas threatening to throw someone in the can until they take a plea to a probationary sentence is kinda weird. Well, worse than weird, but anyway…
He could have, and probably would have gotten away with it. While I think this is every bit as coercive and intellectually vapid as the remand threat, it is (as you correctly note) quite common and likely wouldn’t have raised an eyebrow.
I don’t see a problem if at the outset of a case, a judge tells a defendant that once there’s an acceptable offer, he has 30, 60, etc., days to accept it. There is a legitimate interest in moving a case along, although its secondary to lots of other interests. Another problem though, is that this could make it more difficult for a defense attorney to get paid.
It’s not always the judge at fault, but the prosecutor making a “one-time” offer. Practice varies, so it’s harder to pin down. However, any lawyer who holds up a plea because he hasn’t gotten paid is a mutt.
Don’t mean to veer off topic, but I agree that such a lawyer is a mutt. Nonetheless, when I was a young prosecutor I was struck by how accomodating judges would be towards lawyers who needed to get paid, including telling a defendant on the record, that their case was being adjourned so that they could take care of “certain obligations” before the court would accept their plea. Of course, that’s a form of corruption, but as it becomes pervasive and prevalent, it loses its schock value.
In the old days, it was common for lawyers to tell the judge they weren’t ready for trial yet as they were trying to locate their witness (ahem), Mr. Green. I have no issue with lawyers getting paid, provided it doesn’t impair a substantial right of the defendant. By substantial, I mean the right to speedy trial because the client isn’t paying the agreed upon fee does not present an impediment. Lawyers work for a living, and they should be paid. In this business, getting paid beyond the initial retainer is sometimes a struggle. If they client wants his trial right away, then he has to pay the freight right away.
But holding a plea hostage to a fee at the risk of losing it is unacceptable, and generally unnecessary. Most of the time, a state court plea doesn’t involve an additional charge for most criminal defense lawyers, and is covered (and often well covered) by the retainer. If the problem is that the lawyer took the case without a retainer, or with a minimal retainer just to get the case, then he made his own bed and should have anticipated his payment problems.
Coercive Pleas Get Another Slap
Only a few weeks ago, the Appellate Division, Second Department, reversed a plea as coerced when the defendant was given the choice of remand or a guilty plea and probation.
Coercive Pleas Get Another Slap
Only a few weeks ago, the Appellate Division, Second Department, reversed a plea as coerced when the defendant was given the choice of remand or a guilty plea and probation.