The combination of a defendant who can’t make bail and his child in the hospital in a coma is a toxic mix, ripe for coercion.  This didn’t bother the plea judge, who was happy to offer the defendant, Homer Brown, a special deal of a three week furlough to see his son, lying in the hospital with gunshot wounds in a coma, if only he would take a sentence of 2 to 4. 

This didn’t bother the Appellate Division, affirming the conviction by relying on the plea colloquy, saying “defendant’s allegations of duress and coercion are belied by the statements of defendant during the plea colloquy, wherein he knowingly and voluntarily admitted that he committed the crimes to which he was pleading guilty.”  In plain language, that means the plea was knowing and voluntary because, when the judge asked if it was knowing and voluntary, he said yes.

It did, however, trouble the Court of Appeals, which unanimously reversed in a decision by Chief Judge Lippman.  The facts are straightforward:

What would a father do to get out of jail to see his comatose son in the hospital?  For most fathers, pretty much anything.  Answer “yes” to the voluntariness of a plea?  Sure.  Admit to the Lindbergh baby kidnapping?  Why not?  This is a cruel system, one that would hold a presumptively innocent person on bail without allowing him to visit his son in the hospital. 

The charge here was larceny.  Not a pretty crime, but not a crime of violence.  It wasn’t that the trial judge worried, even though it should never have entered his mind, that this defendant might harm someone if he released him to see his son.  There’s no mention of why bail, whether $10,000 or 2 cents, was justified, but assuming it was, there is always the alternative of having the defendant brought, while in custody, to his son’s bedside.  That would just be humane, but apparently not in the cards here.

But Homer Brown was sufficiently trustworthy to be allowed to cop a plea to 2-4 and then, knowing he would be going to state’s prison, allowed to go free on furlough pending his surrender on the sentence.  It’s amazing how much more trustworthy people are when they know they’re going to spend years in prison than when they are presumed innocent.

The decision does not hold, however, that a defendant, with the potentially coercive concern being played as here, cannot enter a valid plea of guilty.

We do not mean to suggest that a plea bargain granting a furlough is per se invalid. While we acknowledge that such pleas may require special scrutiny by the court prior to accepting it, we adhere to the general rule that so long as the totality of the circumstances reveals that the plea is voluntarily, knowingly and intelligently made, it will be upheld. Indeed, no abuse of discretion will be found where the court, recognizing the potentially coercive nature of the plea terms, conducts a thorough inquiry to establish that defendant is pleading guilty willingly after considering other legitimate alternatives. Moreover, where a careful scrutiny of the motion to withdraw reveals that defendant’s allegations fail to raise a legitimate question as to the voluntariness of the plea, the court may deny the motion without a hearing. Here, however, the circumstances raise a genuine factual issue as to the voluntariness of the plea that could only be resolved after a hearing.

This is thin ice, where the court appears to skirt the problem for the benefit of both sides.  If it held that no viable plea bargain could be cut while a conflict existed, defendants might be denied the opportunity to agree to an acceptable deal as no prosecutor would offer a plea knowing that the defendant could reneg after getting the benefit of the bargain.  How a court’s “thorough inquiry” would show true voluntariness, however, is unclear.  Defendants will say anything they have to say under coercive circumstances.  That’s the nature of coercion.  If the plea judge asks whether the plea is voluntary 25 times, the defendant will say yes 25 times.  It changes nothing.

More interesting, though, is the inclusion of the words “after considering other legitimate alternatives,” suggesting that the plea judge must not only recognize and acknowledge the coerciveness of the situation, but make a legitimate effort to ameliorate the coercion.  Here, Homer Brown could have been offered a trip to the hospital with his own police driver to see his comatose son in lieu of a guilty plea.  Had that alternative been available, would Brown have “voluntarily” agreed to the plea?  Unlikely.

The Brown case involves one of the more obviously coercive guilty plea scenarios around, since few defendants have a comatose child in the hospital.  But the Court’s holding, requiring that the plea court acknowledge special coercive circumstances and consider legitimate alternatives before accepting a plea, is important.  Nobody should cop a plea with a gun to their head, or because they fear they might never see their child alive again.

H/T Brian Shiffrin at New York Criminal Defense