When you hear numbers like these, you have wonder what went so horribly wrong. Carlos Carrion rejected a plea offer that would have netted him a 10 year to life deal for a Bronx shooting. He fought and lost, ending up with a sentence of 125 years. Incidentally, the judge who imposed this sentence was my old buddy, Leslie Crocker Snyder, who was forced to learn how to spell the word compassion after she left the bench to run for District Attorney.
From this New York Law Journal article (which is unfortunately only available to those willing to pay for the privilege), Carrion was convicted in 1991 after a high speed chase and shootout, where he was holding 11 pounds of cocaine. He got the worst of the battle and was left a paraplegic. In 2004, Carrion sought a writ of habeas corpus which, after going up and down, was granted by SDNY Judge Shira Scheindlin, rejecting the magistrate’s recommendation for denial.
From this New York Law Journal article (which is unfortunately only available to those willing to pay for the privilege), Carrion was convicted in 1991 after a high speed chase and shootout, where he was holding 11 pounds of cocaine. He got the worst of the battle and was left a paraplegic. In 2004, Carrion sought a writ of habeas corpus which, after going up and down, was granted by SDNY Judge Shira Scheindlin, rejecting the magistrate’s recommendation for denial.
“Carrion testified that [Roy] Kulcsar never advised him as to the sentencing ranges for the charges he faced,” Judge Scheindlin wrote in her 51-page opinion. “Although this testimony is self-serving, I find it credible, especially given his demeanor in testifying and Carrion’s other corroborating testimony that he lacked the sophistication to invent.”
On the other hand, she said, Mr. Kulcsar “testified he had no present recollection if he ever discussed with Carrion the mandatory minimum and maximum sentences for every count in the indictment.”
Roy Kulcsar has been around the block a few times, and I have no doubt spelled out the trouble Carrion was looking at, but similarly testified honestly that he couldn’t remember what he had done in this particular case about a decade earlier.
I have long admired Judge Scheindlin’s deep concern for the rights of defendants. She’s a bold judge, and has always demonstrated a heartfelt understanding that real people suffer in the system when things go awry by doing something about it. And clearly, a leap from 10 years to 125 emits a horrible stench. But was this Roy’s fault?
I have long admired Judge Scheindlin’s deep concern for the rights of defendants. She’s a bold judge, and has always demonstrated a heartfelt understanding that real people suffer in the system when things go awry by doing something about it. And clearly, a leap from 10 years to 125 emits a horrible stench. But was this Roy’s fault?
“Given that the drug charge carried a minimum of 15 years-to-life, the People’s plea offer of 10 years-to-life was extremely generous,” she said. “There was no reason why Carrion should not have taken the plea offer and certainly no reason why Carrion should not have been strongly advised of the advantages of doing so.”
Judge Scheindlin found that Mr. Kulcsar’s assistance “fell below an objective standard of reasonableness” because “he failed to advise Carrion of the sentencing exposure he faced if he were convicted at trial” and “he failed to give Carrion advice regarding the advisability of accepting the plea offer that was sufficiently robust under the circumstances.”
This is where things get a bit spotty. It’s not that Roy didn’t advise Carrion of his sentencing exposure, certainly something required under an objective standard of reasonableness, but that his advice to take the plea offer was not sufficiently “robust”. Or, to put this in clear terms, Judge Scheindlin ruled that Roy should have rammed the offer down Carrion’s throat.
Roy’s position is clear:
It strikes me that Judge Scheindlin’s decision was designed to provide Carlos Carrion with relief that he deserved, and that Roy was just the conduit to justify the outcome. My bet is Roy’s shoulders are big enough to carry the weight, and his reputation can well withstand the smack. But it didn’t have to fall on Roy for justice to prevail.
The better alternative would have been to lay blame for the outrageous distinction between the 10 year plea offer and the sentence of 125 years on former Judge Snyder, who exacted a spectacular penalty for Carrion’s having exercised his right to trial. Famous for her excessive sentences and inappropriate vituperative rants, the 125 year sentence provided a far better justification for the grant of habeas relief than Roy’s advice.
But then, it may be more palatable to lay blame on the defense lawyer than a judge. At least Carlos Carrion received relief, and I bet that Roy Kulcsar would rather he be blamed for insufficient advice than see his former client suffer. That’s the kind of lawyer Roy is.
Roy’s position is clear:
“I don’t believe a lawyer’s role is to tell a defendant what to do,” Mr. Kulcsar said. “You see applications all the time where a defendant pleads guilty and he says, ‘Well, the lawyer told me to plead guilty.'”It’s all too easy to Monday-morning quarterback the decision to accept or reject a plea offer. Should it be the law that the attorney decide whether the defendant should take the plea, and then manipulate, cajole, force the plea upon the defendant. I think not. In fact, I think that forcing a defendant to cop a plea is one of the most unethical things an attorney can do. Explain it fully, honestly and clearly? Absolutely. Advise the defendant as to the relative risk of a plea versus trial? Absolutely. Ram it down his throat? No. Never. The ultimate choice must always belong to the client, after he has been fully and properly advised.
It strikes me that Judge Scheindlin’s decision was designed to provide Carlos Carrion with relief that he deserved, and that Roy was just the conduit to justify the outcome. My bet is Roy’s shoulders are big enough to carry the weight, and his reputation can well withstand the smack. But it didn’t have to fall on Roy for justice to prevail.
The better alternative would have been to lay blame for the outrageous distinction between the 10 year plea offer and the sentence of 125 years on former Judge Snyder, who exacted a spectacular penalty for Carrion’s having exercised his right to trial. Famous for her excessive sentences and inappropriate vituperative rants, the 125 year sentence provided a far better justification for the grant of habeas relief than Roy’s advice.
But then, it may be more palatable to lay blame on the defense lawyer than a judge. At least Carlos Carrion received relief, and I bet that Roy Kulcsar would rather he be blamed for insufficient advice than see his former client suffer. That’s the kind of lawyer Roy is.
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Yes, well, the ineffective assistance tag is just easier for everyone. It doesn’t raise any issues like prosecutorial misconduct would, or against the weight of the evidence, or denial of due process. In other words, it doesn’t generate lawsuits against any establishment figures. Maybe it would generate a lawsuit against the defense lawyer, but he’s not a particularly attractive target since even if you win he probably can’t pay the bill.
Not only that, but the result is consistent with the prejudices and biases of the system and the public. Everyone is comfortable seeing wrongful convictions being the defense lawyer’s fault, as if the police, prosecutor, judge and jury had nothing to do with it.
Of course this wasn’t so much a wrongful conviction as it was a wrongful sentence. And maybe not even “wrongful” strictly speaking; just draconian.
I know lots of defense lawyers who are perfectly willing to admit to ineffective assistance where they think an injustice has been done, since it’s the only way relief is usually available.
This is a subject that has been discussed here numerous times in the past in substantially greater depth. It might be easier to read some earlier posts when you get a chance than feel compelled to reinvent the wheel, spoke by spoke