Oh, Pleas!

The plea bargain has become a mainstay of America's criminal justice system. See, The Charge posted on 5/24/12.  However, in order to advise a client on the benefits and drawbacks of a change of plea, counsel must know and explain the law surrounding the charge, the potential collateral consequences, and the government's best case.  Once aware of the entire landscape, it is up to the client alone to determine his or her own fate: to go to trial or to change a plea.  That decision is only valid if based upon knowledge, free will and an understanding of the criminal process.
 
As we acclimated to plea changes, we forgot that the right of a jury trial is endemic to our culture, mentioned in the Magna Carta in 1215, and referred to twice in our own Constitution: “[t]he Trial of all Crimes… shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed…” U.S. Const. Art. 3 Sec. 2, and the Sixth Amendment, “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law…”  Waiving the right to be tried by a jury must be knowing, willing and voluntary, not a routine aspect of processing cases.   

Defendants plead guilty for a variety of reasons, among them are actual guilt, a fear that the consequences of trial would be far greater despite innocence, and bad advice.  If counsel has discouraged a change of plea, and such plea issues against the advice of counsel, it is not a violation of attorney-client privilege to make this information known; indeed that fact should be in the record.

But, that is not what happened in a recent Massachusetts case where a defendant pleaded guilty to offenses for which there was inadequate evidence of guilt.  The recited facts state that the defendant was removed from his home and yelled colorfully at the police; told to calm down or he would be arrested, the defendant continued to "disturb the peace" by essentially declaring that this was his house and that he did not like the police.  Ergo, they arrested him because, apparently, Massachusetts, the Cradle of Liberty, is now an authoritarian state wherein the government can remove a man from his home, encourage a crowd to gather, arrest the man for complaining in front of a group of people, and then have him convicted because "disturbing" a crowd assembled because of police actions and "mouthing off" are now criminal offenses.  The court tortures itself - and decent society - to uphold these convictions for disorderly conduct and resisting arrest - two classic charges claimed by people who, really, should not be permitted to carry guns to work. 

Shockingly, trial counsel let this happen, the government stood by and when the defendant moved to withdraw the ill counseled pleas, courts have upheld this travesty.  The opinion seems to contradict settled Supreme Court precedent, including the most recent cases on errant guilty pleas.  This may be a good time for the Supreme Judicial Court to act.

Defense attorneys must know the law.  They must know the elements of the statute with which their client is charged, they must research case law to understand what would constitute the offense and they must explain this information to their clients in a way the clients can understand.  Given that many involved in the criminal justice system have poor educational backgrounds, addiction and mental health issues, it is incumbent upon counsel to ensure that the client really does understand his rights, the facts and the law before advising on a plea.

Prosecutors must provide the facts upon which they intend to rely.  Massachusetts, and presumably other states, have broad "automatic discovery rules" requiring immediate and continuing discovery of a wide range of evidence.  Beyond automatic discovery, further information may be required before an attorney can reasonably counsel a plea change.  Indeed, principles of due process under the federal constitution require the production of material and relevant evidence to the defense.  

For example, when a Mr. Brady was tried for murder committed during a robbery, the government provided discovery to the defense.  Based on that evidence, Mr. Brady went to trial with a specific strategy: to take the stand, admit his part, explain that another committed the homicidal act, and beg for life in prison in lieu of capital punishment.  In Mr. Brady's trial, though, the jury disbelieved him and opted for death.  What the jury did not know was that the person Mr. Brady accused was also accused by the government...to whom he had confessed his guilt...which information the government failed to give to Mr. Brady or the jury.  When Mr. Brady obtained the confession post-conviction, he asked for a new trial which the Supreme Court ultimately provided for him.

But, Brady v. Maryland was not a singular case; in Mooney v. Holohan prosecutors tried the defendant on knowingly perjured testimony, in Napue v. Illinois, the government failed to correct blatant untruths uttered by their own witnesses, and in Kyles v. Whitley, the government failed to turn over specifically requested police reports and statements indicating that another man had committed the crimes for which Mr. Kyles was serving time.  These were not mistakes; they were intentional deceptions.  Even if the initial failure to disclose was inadvertent, the fight to the Supreme Court indicates a desire to circumvent due process.  In Mr. Brady's case, had he not obtained the evidence, the good people of Maryland would have murdered him-not in one of those heartbreaking cases of misidentification, he was not misidentified - but because a reasonable jury would have sentenced him to life in prison as he requested had they known the evidence kept secret by the government.  In all of these cases, had the defendant chosen to accept a guilty plea instead of taking his case to trial, the fraud would have gone undetected.

In addition to the general law and the government's best case, defense counsel has an additional burden to know, understand and explain interconnected collateral consequences prior to advising on a change of plea.  What other factors must be considered before a plea is knowing, willing and voluntary?  For starters,without apology for the bullet points:

• whether the conviction will affect immigration status; 
• if the defendant is from a different culture, does s/he understand the American criminal process;
• if the defendant does not speak English as a first language, has the native language interpreter sufficiently translated the lawyer's explanations and the client's concerns;
• if the defendant has ever suffered from mental illness or mental infirmity of any kind, does s/he genuinely understand all that is happening within the criminal justice system;
• whether the conviction will hamper or preclude a defendant from legally purchasing or possessing a firearm, an individual right under the Second and Fourteenth Amendments, in the future;
• whether the conviction will terminate a public housing lease;
• whether the conviction will suspend a driver's license;
• whether the conviction will initiate the revocation or suspension of a professional license;
• whether the current conviction will serve to enhance any later convictions.

While the vast majority of criminal cases resolve by means of a guilty plea, it is unlikely that all, or even most of them comport with these requirements to ensure that the guilty verdict reflects constitutional safeguards.   Due to the unreliability of plea bargaining, at least one person has suggested that plea process be reformed to act as something less than guilt. See, Gregory M. Gilchrist, Plea Bargains, Convictions and Legitimacy, 48 AMCRLR 143 (Winter, 2011).  But, even if we retain the very troublesome system as it is, we can improve the practice.

In Massachusetts, prosecutors are obliged to affirm, under the penalty of perjury, that they have satisfied the automatic discovery requirements; counsel must ensure that the certificate of compliance, as outlined in M.R.Cr.P. 14(a)(3), is filed before any plea negotiations occur.  Counsel can and should correspond with the client about each and every element of the offense and the government's anticipated evidence to prove each element.  Counsel can and should correspond with the prosecutor regarding every offer for a change of plea, obtain everything in writing, and provide that correspondence to the client.  Counsel must review potential collateral consequences including not just immigration matters, but all known potential problems resulting from a guilty verdict with the client.  Even these simple steps can improve confidence in guilty pleas.  Through these actions, it may become clear that a guilty plea is not the best alternative for the client and trial or dismissal may be appropriate.

When lawyers are "sworn in to the bar", what we swear or affirm is to uphold the constitutions of the nation and our state.  We, defense attorneys, prosecutors, and judges, denigrate that promise whenever we gloss over the jury trial provisions specified in the Constitution.  It is not that every single case must go to trial; that would be optimal but, sadly, not practical. But, neither should pressure force cases through the system sacrificing justice for efficiency.  

The framework for government in this country mentions criminal jury trials twice and so it is reasonable to presume that this is an important - if not required - provision that deserves respect.  As we look to modifications for that time honored practice allowing for a declaration of justice by an impartial group assembled from the community, we must remember, as Chief Justice John Marshall implored, that it is a constitution we are expounding.  

As we talk about the obligations of government to its citizens and inhabitants, as we discuss individual liberties and guaranteed rights, we defense attorneys have a special obligation to establish as fair and transparent a process as possible when we anticipate a waiver of those precious rights.  Courts will not impose one and prosecutors will not suggest one; defense attorneys are the final buffer between a free society and a police state.  Therefore, it is incumbent upon defense attorneys - the only folks in the entire process mandated to be there - to develop and implement protective guidelines in relation to change of plea proceedings for our clients, our constitutions and our communities.