Downfall Meets Law Review

Sorry.  Have no choice. Too funny,  This one is for all the lawprofs out there. You are not alone.



Best line: “It’s OK. He won’t really go back to private practice.” 
Second best line: “Or I could start my own blog.”

H/T Dan Markel at PrawfsBlawg

Can You Hear Me Now? (Plus Bonus Form!)

With barely an opportunity to catch our breaths following the issuance of the Maryland v. Shatzer decision, the 14 days out of thin air shelf life for invocation of the right to counsel, another big Miranda case looms on the horizon.  Oral argument in Berghuis v. Thompkins comes this Monday.

Berkeley Lawprof Chuck Weisselberg wrote a great assessment of Berghuis v. Thompkins for HuffPo.

In the Michigan case, Berghuis v. Thompkins, officers gave Van Chester Thompkins the Miranda warnings. But instead of asking if he would give up his rights and speak, police just began interrogating. Thompkins kept largely silent for close to three hours while officers tried different tactics to get him to talk. He eventually succumbed and made a statement. A federal court threw out the statement, finding that Thompkins did not waive his rights. Michigan has appealed.

 

This is kinda the “don’t ask, don’t tell,” version of Miranda.  The way it was intended to play out, the officer would pause after reading each line off his laminated Miranda card and ask, “do you understand?”  The suspect responds yes, and the officer then, at the end, asks if the suspect wishes to make a statement or if he wants to speak with the police.  Of course, this is the sanitized version, as would be offered in testimony.  It doesn’t include the threats and psychological manipulation designed to thwart free will that is rarely mentioned during the officer’s direct testimony, and is routinely and sincerely denied on cross.

One interesting twist in this case, as Chuck notes, is that the Obama Justice Department had no necessary role in the case, yet made the choice to insert itself on the side of Michigan.

The US Solicitor General is joining Michigan in aggressively attacking Miranda. In 1994, the Court held that if suspects initially waive their rights and agree to talk–but later change their mind and want to see a lawyer–they must say so clearly and affirmatively. The Solicitor General now wants to extend this ruling to the very start of interrogation. Under this approach, there would be no “time out” prior to interrogation for suspects to decide whether to speak. Instead of requiring police to obtain a waiver, suspects would have to stop an interrogation that has already begun. Ironically, people would have to speak in order to claim their right to remain silent.

This position appears more hostile to Miranda than any taken in the Supreme Court by previous Democratic Administrations.

As a fan of the proposition that suspects exercise their right to remain silent, I cannot help but appreciate that this case arises during an administration of hope and change.  Can you imagine how much more awful the Solicitor General’s position would be under a conservative regime.  I can’t.

After sharing a heartfelt laugh over the fact that clients, no matter how many times lawyers tell them, just can’t manage to say the magic words (and Ken at Popehat offers his own variation on this theme, Rule 1: Just Shut Up), Chuck sent over a brilliant form to provide our clients to assist them in this perpetually problematic task.  It’s called the Assertion of Rights form.

ASSERTION OF RIGHTS FORM
TO ALL LAW ENFORCEMENT OFFICERS, AGENTS AND GOVERNMENT PERSONNEL:

I, ________________________________________, am represented by attorney ______________________________________.I hereby assert my right to remain silent.I want to see my lawyer now.I do not wish to answer any questions.

Date:_______________       Signature:_____________________________
ALL LAW ENFORCEMENT OFFICERS, AGENTS AND GOVERNMENT PERSONNEL SHOULD SIGN THE ACKNOWLEDGEMENT OF ASSERTION OF RIGHTS, BELOW:

ACKNOWLEDGEMENT OF ASSERTION OF RIGHTS

            I acknowledge that I have read and understood this Assertion of Rights form, and that _________________________________ wishes to consult with his attorney and does not wish to answer any questions.

Date:_______________        Signature:_____________________________

Agency:_____________        Name (print):__________________________

Chuck tells me that he borrowed the idea for this form from another lawyer, Jodie English he believes, and that she told him that “was once mailed back to her by an officer, ripped up into tiny pieces.”  How much better could it get?  If you don’t love this form, you should immediately start searching for a job practicing transactional law.  And if you do, think about what a wonderful Christmas gift this would make for your clients, with names already filled in so that they can’t screw it up.  Well, at least the names part, anyway.

All of this Miranda squabbling, with the Supremes doing everything in their power to water down, undermine, negate the rule so that they can pretend to maintain its prophylactic purposes while turning it into a minefield for the unwary, one point persists and resolves every issue that has or will arise from each new tweak:  Invoke your right to remain silent and your right to counsel.  Invoke it each and every time a cop tries to question you, whether a few hours later or 14 days later.

Or, if the word “invoke” confuses you, the simpler version will suffice.  Just shut up.

A Lawyer’s Misery For Sale on Craigslist

It’s not the first time. In 2008, David Wold offered his law degree from DePaul for sale on eBay.  Now, another degree, school unknown but for it being “elitist”, is offered on Craigslist for the price of outstanding student loans, $59,250.

The ad shows all the signs of an disgruntled buyer.

After several years of practicing law I have come to the conclusion that my law degree is useless and I don’t want to be a lawyer anymore. Though I spent over $100,000 on it I am willing to sell it for the bargain basement price of $59,250, which is the current value of my remaining student loan balance.

This priceless collectible will permit you to be surrounded by hobby-less assholes whose entire life is dictated by billing by the hour and being anal dickheads. Additionally, this piece of paper has the amazing ability to keep you from doing what you really want to do in life, all in the name of purported prestige and financial success. Finally, girls in the Marina will swoon with retarded thoughts of sugar daddy when they hear you went to XXX prestigious law school and are a lawyer.

Act now as supplies are limited and this crap takes three years to make. DISCLAIMER: this piece of shit isn’t even written in English. It’s in Latin or something, but I have the translation. It says “Haha. We took your tuition money bitch, now suck it. Sincerely, President of the University”

Added Bonus: It’s from one of those elitist BS institutions that accept people like George W. Bush cause their daddy donated $20 million i.e. Cornell, Penn, Harvard, Yale, Columbia, Georgetown, Duke, Tijuana Tech, etc. Instead of donating $20 million you can have it for the low low price of $59,250 or best offer.

This is actually a serious post. I will really sell this piece of shit.


No one, of course, will buy the diploma.  It’s just a piece of paper with someone else’s name on it.  It won’t impress the “girls in the Marina.”   Some will see this as another manifesto of a loser, which, of course, it is.  But it’s more a warning to the unwary, to the law schools and to the mommies and daddies who push their little darlings into the law in the hope that they will become more than they were.

The seller blames the law. His anger is understandable, but misdirected.  He should never have gone to law school, never have become a lawyer.  Being a lawyer is hard work.  Becoming a lawyer doesn’t guarantee anyone wealth and prestige.  He made a very expensive mistake, and now finds himself miserable. 

The seller blames the law schools.  He’s closer to the target now.  Law schools sell the dream, the image that fills their high priced seats with young men and women, that pays for over-priced law professors to indulge their fantasies of writing useless articles and treatises for their own self-aggrandizement.  The take in far more students than can possibly find a viable future in the law, knowing full well that society can’t absorb them all, and couldn’t care less.  They fudge the employment statistics to make the cost appear worth it.  They lie to students, and then to themselves to rationalize their deception.

The seller of this diploma, who I will call Max since he’s neglected to include his name in the Craigslist ad, wants to make a point that he was scammed.  Many will argue that if Max is anywhere near as bright and worthy as he thinks, he should have known what he was getting into.  He should have understood what it meant to be a lawyer.  He should have realized that he was being lied to. 

Whether he should have is one issue; that those entering law school, applying for huge loans, sitting eagerly in class hoping to suck in enough information to make law review and assure themselves of a wonderful life, rarely see their future clearly is a truism.  Even with the stories, the posts, the complaints, the hatred that spews from disaffected young lawyers, they believe that their life will be different, wonderful.  Right or wrong, we know this is how they think.  And if they didn’t, half the seats in the ever-increasing number of law schools would be empty. 

Max is wrong.  His anger is misdirected.  The law is a wonderful profession for those who desire to be lawyers.  For those who enter the law because they want wealth, prestige and work/life balance, it will be a misery. 

Even as Max’s ad runs its course, the American Association of Law Schools is preparing for its 2011 conference by seeking ways to deal with the problem.  It’s put out a call for proposals:




AMERICAN ASSOCIATION OF LAW SCHOOLS – 2011 Conference>>

A Joint Program of the Sections on Balance in Legal Education and Academic Support>>

Co-Sponsored by the Section on Student Services>>

>  >

Theme:    “Beyond Humanizing:  Can – and Should – Law Schools Strive to Graduate Happy Students?”>>

>  >

Students often enter law school with goals of helping others, improving peoples’ lives, and making the world a better place.  By the time they graduate, however, other considerations have supplanted students’ pro-social inclinations.  Their aspirations succumb to more extrinsic values, such as prestige and money, and are often faced with the realities of time pressure and the dehumanizing effects of legal education.  Despite the prestige associated with being an attorney, the profession is not ranked in the top ten for job satisfaction or happiness.  In fact, one recent study revealed that a majority of practitioners would not recommend law to a young person.

Nothing shows more clearly how law schools and academics are trying to hide from their massive failings, their deliberate lies, than this charade.  All those very smart people denying that the problem is their sucking in young people who have no business in the law, wholly lacking an understanding of what lawyers do, and selling a sham future at an absurdly inflated price.  Instead, they pretend that it’s all about changing the profession to make students who have no business being in law school “happy”.  Throw them a party.  Give them a trophy.  As long as we keep the seats filled and the tuition checks flowing, so we can spend our time writing articles that will enhance our personal prestige.

Nothing here reflects the slightest recognition of the responsibility of law schools to vet those who apply for people who want to be lawyers.  The fictional paradigm, about those entering with lofty goals and leaving with cynicism, allows them to keep milking the cash cow while shifting the blame elsewhere.

Stop lying to yourselves.  Stop lying to potential law students.  The law is not an easy life, nor clear path to a happy future.  It’s hard work, and not everybody is cut out for it.  The law cannot be reinvented for the benefit of lawyer happiness; We have a job to do and if the purpose of that job ceases to be service to the client so that we can focus on our own happiness, the law ceases to have a reason to exist. 

If you want Max to be happy, don’t throw him an ice cream party or give him a red balloon.  Give him his money back and let him find an occupation for which he is better suited.  Change your law porn to show hard working, financially struggling young lawyers, who can’t get a date with the girls at the Marina, but won’t have time for it even if they could.  Show them fighting for people whose own miserable lives depend on the lawyer doing his job well in a system that satisfies ego and blood lust better than reason, where every once in a while the right result happens.  And if they still want to go to law school, then you’ve got the right person.

Unfortunately, Max is typical of his generation, only brilliant after the fact, and then only when it comes to pointing the finger of blame away from himself.  But narcissism and entitlement are the hallmarks of today’s law students, and that’s not going to change for a while.  At least the Slackoisie can console themselves by knowing that they aren’t totally at fault for being blind pigeons in this scam.  They have good reason to blame law schools and professors. 

The Disappeared: Slackoisie

It was never clear to me how it got there, but somehow it did.  The Urban Dictionary included a definition for a word created by Dan Hull, and one of my favorites:  Slackoisie.

It’s gone.  For reasons that are none of your business, I went to find it yesterday, and it wasn’t there.  Like it never happened.

The cache of the Urban Dictionary remains, and so it lives on in the secret ether for those who know where to look, but for anyone who might cruise the Urban Dictionary in search of a definition, they will come up empty.  Here’s what it used to say:











Slackoisie

Prounounced “Slack-wah-zee”. This is a term coined by Scott H. Greenfield, Esq., author of the “simplejustice” blog, which refers to a class of young attorneys (usually millenials) who believe that having a job is an entitlement, rather than a privilege.

This term could be used to describe any graduate from an institution of higher learning who is more interested in having a place to go in the morning and some spending money, rather than committing themselves to a profession or career.

(1) Attorney 1, “OMG, like I got a job at (insert name of any law firm) and they expect me to work like a hundred hours a week. I did not go to (insert name of law school) to work all the time.”

Attorney 2, “Stop being such a slackoisie, and appreciate the opportunity you have! There are tons of people graduating law school who would love to have a job doing (insert type of law practiced at Attorney 1’s law firm).”

(2) Anyone who posts on “JD Jive” or “JD Underground”;

or

(3) Those attorneys doing document review work who want to make money, but do not want to work the long hours at low pay found at most small firms. Having a job and making money are more important to a slackoisie than serving clients interests or professional development.
I was never thrilled by the definition, as it failed to attribute its creation to Hull, and called this place the “simplejustice” blog.  It was also a substantially underinclusive definition, as it was never meant to be limited to lawyers, but to a generation of entitled narcissists.  I would have changed it, if I could figure out how, to note that Hull invented it, though I popularized it.  I take credit for that.  I never could figure out how to edit the definition.

But now it’s gone.  Click on it and you’re informed that the word “isn’t defined yet,” with a link to input it again. 

I’m really bummed that it’s gone.  It’s a great word.  It’s a spectacular word.  It makes it’s point, and it’s made the round.  People use the word, besides me and Hull.  It’s working its way into the vernacular.  And it pisses off the Slackoisie to no end, which means that it’s serving its purpose.  What more could one want from a word?

I thought about re-inputting it into the Urban Dictionary, this time with proper attribution, some shameless self-credit, and a more comprehensive definition with better examples.  But it felt wrong.  Being responsible for its popularity, it’s too unseemly for me to promote the legitimacy of Slackoisie as a word. Yes, I know that the Urban Dictionary isn’t Funk & Wagnalls, but it’s better than nothing.  I started the process, then stopped.  If the word is for real, someone else should do it.  Some one else should want to do it.  Some one else did it before.

But why did the Urban Dictionary delete it?  It was there a long time, and then it was gone.  Who killed it?  Why?

Part of my problem, so you know, is that this was a flashback to Wikipedia.  There was a time when I was included in Wikipedia, under trial lawyers, with a short biography.  I don’t know how it got there either, but I was kinda proud that somebody thought enough of me to put it in there.  And then, one day, it was gone.  No clue why, but it was gone.  It’s like I was there, and then I was gone. That hurts.

Wikipedia has an entry for Above the Law.  Simple Justice doesn’t.  Like it never happened.

Bad Boy Lists

Lists.  We love ’em.  No, I mean everybody loves a list.  See a list for the top 10 colors for rocks and you’ll read it. And that’s why it’s worth noting that two lists have come out this week about lawyers.  Since they’re lists, everybody will want to take a look.

The first was put out by American Express, via their small business “Open” wing.  It’s called 16 Things Your Lawyer Won’t Tell You, and it’s all about nasty little lawyer tricks to do less work, get more money, and burn the client.  It’s like a beginners course in how to be a social media consultant, full of obvious ways to put your pocketbook ahead of your integrity.  It starts with the requisite caveat:


While most lawyers are honest professionals, the legal industry does have its share of rotten apples. From overbilling to downright incompetence, our recent interviews with legal experts revealed 16 dirty secrets bad attorneys don’t want you to know.

Nobody cares about the caveat.  It’s not part of the list.  It’s all about the list, and the list is pretty damning.  And pretty good.  And lawyers hate it.  The problem is that lawyers hate the list because it hurts, it exposes tricks that are used.  Maybe not be you or me, but by someone we know. 

The problem is that it makes all lawyers look bad, like thieves stealing from clients in the night.  Yet, our solution isn’t to stop lawyers from engaging in impropriety, but get angry about the list.  The list isn’t the problem.  The problem is that it’s too true.  The problem is that lawyers who use these “dirty little secrets” embarrass the other 1% of honest lawyers (I apologize, but I couldn’t resist the joke).  The problem is that lawyers will shake their head, tsk a few times and sneer.  What you won’t do it call out the lawyer who does wrong.  You won’t do anything to stop it.  You won’t be the mean guy and expose yourself to potential wrath. 

The second list comes via VentureHacks, and is entitled Top 10 Reasons Why Entrepreneurs Hate Lawyers.  Though we may not be part of the start-up, venture capital scene, the complaints apply with full force to all lawyers.  And if you’ve hung around with lawyers for more than about 26 seconds, you know them to be true.  Sure, everyone has their rationale for why they neglect their clients and make every wonderful deal a misery, but this is what it looks like from the other side.  And frankly, with a few minor tweaks, it looks pretty much the same to criminal defendants as well.

A lot of lawyers hate these lists. They hate lawyer jokes too.  And they don’t think much of lawyers who expose the wrongs that lawyers do.  It’s undignified.  It demeans the profession.  It’s embarrassing.  These lawyers are the enablers, if not the perpetrators.  For more than 25 years, I’ve listened to lawyers pontificate about the glory of the profession to obfuscate what’s wrong with it.  It’s all about the appearance of impropriety, as if concealing and denying what lawyers do wrong will make it better.  It hasn’t worked.  It won’t work.  It improves nothing.

One of the most cutting criticisms of lawyers is that, when push comes to shove, we circle the wagons and deny that anybody would engage in the dirty tricks on the list or excuse the failure to respect our clients.  Who do you think you’re kidding?  It’s not enough for a lawyer to truthfully say that he doesn’t do these things.  If we know of others who do and stand mute, we are complicit in their conduct.

Many have been critical of me for breaking the blue pinstripe wall of silence.  Lawyers who have been the “victims” of my criticism curse me.  I am persona non grata to the throng of platitude pontificators, because I won’t embrace the appearance of dignity and ignore the scheming below the surface.  So I’m the outcast. 

What I am not is an enabler, denier, concealer or apologist.  If you despise me for breaking the code of silence, so be it.  Call me a traitor, but the lists are too true to be ignored.

H/T Tannebaum and Hull

Explaining Away The DNA

Johnny Cochran will always be remembered for his line in defense of O.J. Simpson, following the infamous glove demonstration.  If it doesn’t fit, you must acquit.  While it worked for a glove, will it work for DNA?  Not according to Douglas County, Colorado, District Attorney Carol Chambers.

Via Radley Balko, from the Denver Post :

Residents were alarmed last summer by a rash of thefts, trespasses and burglaries in Stonegate, a neighborhood in Douglas County.  Fear turned to panic in July after an intruder reportedly climbed into a second- story window and groped an 8-year-old girl in her bed.

A sicko was on the loose and pressure was on to catch him.

A week later, Sheriff David Weaver announced that his office had made an arrest.

Nobody wants a “sicko” on the loose, and the pressure on the police to “do something about it” can be enormous.  Law enforcement hates to disappoint when the focus is on them.  It makes them look so, well, incompetent.  And so they don’t.

Sheriff David Weaver must have been relieved to tell the locals that they had the “sicko”, a thin 19 year old redhead named Tyler Sanchez.  So what if he looked nothing like the description of the sicko.  So what if he was cognitively impaired.  He confessed, after a 17 hour interrogation, repeating back only the information that was fed him by the police.  Case solved.

Except for one sticky detail.  The 8 year old girl who was molested had semen on her underwear.  Semen has DNA.  The DNA  came from two men, and matched the girl’s father and another unknown male.  What it failed to match is Sanchez.  It didn’t fit.

The Sheriff, however, was not to be denied.  After all, this was the next step in a escalating pattern of criminal conduct for Sanchez.


Miranda: Offer Valid For 14 Days

The Supremes had a wide open field when it came to deciding how long an invocation of Miranda rights would last in Maryland v. Shatzer.  The range was 10 seconds to eternity.  I made my position clear up front, though others disagreed.  The Supreme Court has now spoken, and, ironically, has finally done what I have often criticized it for not doing.  It actually gave a clear answer :  14 days.

It figures that the Supremes would finally actually decide a case, and provide a bright line test, when it serves to burn the defendant. But the decision by Justice Antonin Scalia, the originalist philosopher, makes the line as bright as can be:


Held: Because Shatzer experienced a break in Miranda custody lasting more than two weeks between the first and second attempts at interrogation, Edwards does not mandate suppression of his 2006 statements.

The question, of course, is how the Supremes arrived at this two week bright line.  Orin Kerr, who’s become remarkably snarky lately, tried his hand at explaining.


And how did the Justices know that 14 days would be about right? Based on their extensive experience being arrested, perhaps? Presumably not. But no matter. Fourteen days seemed about right, and so the 14-day rule became the law.


As Orin notes, the utility of arriving at a hard and fast rule is clear, given that police in the field (or “on the fly,” as Orin calls it, just in case they had no opportunity to think about their actions in advance of a custodial interrogation) can’t be expected to comport with some complicated balancing act, the new professionalism notwithstanding, is clear.  It’s hard to disagree with the need to a clear mandate, even though the Constitution doesn’t include an expiration date on rights.  Seriously, if the invocation of rights lasted forever, we would have the anomalous situation of police never being able to coerce confessions.  How would we ever convict anyone?

Orin also offers an affirmative reason for Justice Scalia’s opinion containing the 14 day rule, and it’s pretty interesting as well.  As he notes, Scalia hates Miranda, it being a wholly judge-made rule, which he called a “prophylaxis built upon prophylaxis, producing a veritable fairyland castle of imagined constitutional restriction upon law enforcement.”  So when this opportunity arose to place an arbitrary limit on the duration of the invocation of Miranda rights, Scalia was there.



But if you can’t beat ‘em, join ‘em. Or at least join ‘em if that means you get to write the opinion that substantially limits the effect of the Edwards rule. And if you’re going to write an opinion that you see as merely “prophylactic,” presumably you’re not bound by your usual approach to constitutional interpretation. With apologies to Chief Justice Marshall, it is not a Constitution you are expounding. So explicitly policy-based rulemaking becomes more understandable, even if it’s jarring coming from Justice Scalia.
On the bright side of this bright line test, at least we can forewarn defendants that their invocation of right to counsel has a shelf-life of 14 days.  After that, rinse and repeat.  Or, if they prefer not to keep an eye on the calendar, they can always just follow the prime directive.  Say the magic words (I want to speak with my lawyer) and then shut up.

The Anti-Slackoisie

Last night, a phone call came in from California.  It was Dan Hull of What About Clients? fame, who got a few minutes off from practicing for Dancing with the Stars.  He told me that his office was running low on teletubbies, following a spate of paper cuts and a tragic flip-flop accident.  

Hull asked what I thought about importing some new ones from the Big Apple.  I didn’t think it was a great idea.  More expensive, more self-important, no better work ethic.  It was like recruiting from Above The Law’s commentariot, a fate worse than death for real lawyers.

But the real problem for lawyers who seek to raise the next generation of fighters and thinkers isn’t whether a change of venue will solve their problem, but that the Anti-Slackoisie aren’t sitting in their mommy’s basement whining on JD Underground about the misery of the profession.  They’re going out and being lawyers.

Wajahat Ali, in one lengthy but heartfelt story, proved that he’s got the stuff to be a lawyer.  Recognized by Walter Olson, Brian Tannebaum and Mark Bennett, Ali was too busy to bemoan the fate of Biglaw opportunities because he was busy representing a client.  He hit walls, and he pushed through. He had his doubts, and he pushed through.  As it happened, his persistence paid off, but even if it hadn’t, he demonstrated the fortitude that makes for a real lawyer.  No time for whining when you have a client to represent.

And Brian Tannebaum found another one, Brett Luskin, who decided that he wasn’t satisfied with leaving a permanent butt imprint in his parents’ couch.  Instead, he established a practice defending against traffic tickets.  While not the sexiest niche, he showed his stuff beating the City of Aventura, Florida, on the legality of red light cameras.  Not too shabby.

Even as I tap at the little keys, I can hear the smart alecks at ATL and JD Underground sneer at Ali and Luskin. How de classe to wallow in such low-life endeavors, such crap-law, when they have dreams of a partnership in Mergers & Acquisitions, a million dollar salary and a pair of matching Ferraris in the six car garage.  There’s plenty of time to dream while waiting for someone to praise your comment on the internet.  It’s so much more honorable to hold true to your belief that some law firm will appreciate your unique genius and snatch you off the couch and plant you in the corner office.  Just keep sitting there, and pray the Doritos don’t run out.

The problem Dan Hull faces in trying to find new lawyers who want to work, want to serve clients, want to be real lawyers, isn’t one of location.  They are out there, likely in every city across the country.  The problem is that they aren’t waiting for the phone to ring, or sending out their one millionth resume.  When opportunity didn’t plop in their lap, they went out and found it.  They created their own success.

The Slackoisie hate being told that they’re miserable failures.  Nothing is their fault.  They are entitled to fabulous lives, and it’s all because of their evil elders that they’ve been denied their birthright.  The anti-Slackoisie, like Ali and Luskin, aren’t worrying about it.  They’re too busy being lawyers.

A Plea For A Child In A Coma Isn’t Voluntary

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:


Defendant, under indictment for one count of robbery in the third degree and one count of grand larceny in the fourth degree, was unable to post the $10,000 bail and was held in custody while awaiting prosecution. From the time of his arrest on April 11, 2005 until his June 29, 2005 guilty plea, defendant consistently maintained his innocence and so testified at the grand jury. Shortly after his indictment, the parties learned that defendant’s son was in the hospital and in a coma as a result of multiple gunshot wounds. At the outset of the next court appearance, the court informed defendant that a proposed plea bargain would require him to plead guilty to both counts of the indictment in exchange for a 2 to 4 year sentence, and then stated, “[y]our attorney told me [that] you were interested in taking the plea if I were to give you a furlough for three weeks to allow you to see your sick child,” who was still in the hospital. Defendant responded in the affirmative, and the court agreed to the furlough, warning defendant that if he did not appear on the scheduled date, he would receive an increased sentence.

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