When Mouhamed Thiam finally stood before the arraignment judge, charged with an A misdemeanor for possession of oxy and a B misdemeanor for open possession of weed, he had one goal. Get out of that courtroom and onto the street. In the trenches, this is usually the prime directive, the goal defendants want to achieve, and it’s the lawyer’s job to make it happen if possible.
But is it wrong? Maybe. Especially if you’re a scholar or think tank pundit or activist. But guess what? The defendant who just spent the last 24+ hours in lockup awaiting arraignment doesn’t give a shit about your theories, your scholarship, your saving the world. He wants to get out of the cuffs and into his own bed.
Thiam copped a plea to the oxy and got time served, which means he walked out the back door to freedom. Except the oxy charge was what lawyer call “imperfect,” because probable cause could not be made out by a cop’s observation, based on his “experience and training.” Weed can. A pill, however, is just a pill. What’s in the pill requires a lab report. There was no lab.
This failing made it to the New York Court of Appeals.
Even if the accusatory instrument properly sets out a lower-grade offense, a defendant’s challenge to a conviction based on the jurisdictional deficiency of a higher grade crime of a multi-count complaint is not waived by the defendant’s guilty plea.
Terse, but sufficient to achieve the valuable goal that a guilty plea doesn’t waive a jurisdictionally defective charge. This would seem a good holding for defendants, and it worked out well for Thiam, whose case was dismissed. Except it presents a problem for others, and perhaps Thiam if he should get popped for a pill the next time.
Instead of there being agreement to a “time served” plea so that the defendant can walk out the back door, he will now have to wait for the lab to perfect jurisdiction under the complaint before he can take the plea.
There are alternatives. The prosecutor could have let him cop a plea to the B misdemeanor, the weed charge, instead. The defendant could have not copped out at all, and be freed on his own recognizance, except then he would have had to return to court, and some folks prefer not to do that and would rather take the plea. Hey, it’s their life.
Then again, things might not have gone so smoothly for the defendant, and the prosecutor would refuse a plea to the lower charge, the judge might not release the defendant ROR or he would have to return to court 27 times for appearances, each time missing work, until trial where he might be convicted (because, you know, it might have been oxy).
There’s a purist view of the law, one couched in theory and propriety, pushed by people with larger social agendas. Was Thiam’s point to win for the sake of theoretical purity or to get out of lockup as fast as possible?
Ironically, if Chief Judge Janet DiFiore had her way, he would have gotten his affirmance, but would have been sent back for a do-over. It might not have gone so well the second time around.
All he wanted to do was go home, even if it meant copping to the Lindbergh kidnapping. In the trenches, that’s how it happens sometimes. Most times. If copping to a bad charge gets you out now, so what? Unless you’re willing to take his place in a cell, who are you to tell him that pleading out to a jurisdictionally defective charge is a bad thing?