Monday, March 17, 2008

Murder & Sexual Assault Plea Bargains Aren't A Bargain

Every day I encounter people who believe that they were bullied into pleading guilty to some plea “bargain” that, upon brief reflection, they realized that it wasn’t that great of a deal. Or, more often, they just felt that they were truly innocent and should have gone to trial. In any event, they routinely blame their attorney for just being in bed with the DA and not really fighting for them and they want to “withdraw” their plea. Sounds simple, right? As usual, the answer is: “it depends.” The variables are huge, the DA’s almost universially oppose these motions no matter when brought but the judge can be a real wild card. I have had extremely compelling cases that have been denied and seemingly difficult cases that breezed right through.

The first hurdle is whether it is before or after sentencing. A criminal conviction begins after the judge “accepts” your plea of guilty and then “adjudges” you guilty and orders a “judgement of conviction” be entered in the record. The case is then set for sentence if it is a felony. Many smaller cases may proceed right to sentencing after the plea proceedings. The legal standard is hugely different: before sentencing, courts are supposed to “liberally” grant such motions for any “fair and just reason.” However, after sentencing, they only grant a withdrawal request to prevent a “manifest injustice.”

Don’t feel bad if you don’t know what those terms mean in the legal context, neither do most judges. We attorneys, of course are convinced that we always have met the standard but the judges are all over the board. Consider two case I have handled in recent years: Jose and Walter.
Jose was set for trial for 3 counts of first degree intentional homicide and 3 counts of reckless homicide. His trial attorney basically did nothing to investigate the case which involved a gang-related shooting. Early on, the state indicated that the only plea they would offer was to cop to 2 counts of first degree and they would recommend life without parole (no death penalty in Wisconsin - yet!). Jose rejected this “deal” categorically and maintained that position to anyone that would listen - including his Jesuit priest that would minister to him regularly. On the eve of trial, his attorney pushed a final “deal” on him: plead to just one count of first degree and 2 count of reckless homicide and the state still recommend life without parole. Can you feel the love? Some how, his attorney convinced with that he may escape a life sentence and basically bullied him into taking the deal. He immediately regretted it and contacted me to help him withdraw the plea under the liberal standard of “fair and just reason.” Claims of innocence and ineffective assistance of counsel and the testimony of his priest just didn’t cut it for this incredibly obstinate judge who used every available tool of intellectual dishonesty to deny his request. The truth was that the court just didn’t want to try the case.

Contrast that with Wally: he was fooling around sexually with his male cousin when they were 14 and 13 respectively. The families all knew about it and put a stop to it. 3 years later, the cousin brought this up at school and the counselor reported it to police. Because of Wisconsin’s juvenile court decisions, the case was treated as an adult crime because Wally was 17 and an adult for criminal law purposes. Also, since the accusation (a false accusation) was that Wally had threatened him with a knife, the judge ordered him to report as a sex offender for 15 years after he finished probation. On appeal, the client had to meet the manifest injustice standard but, to our great surprise, had a policy of granting nearly every request for withdrawing a plea practically for the asking if there is a claim of actual innocence. Since Wally did not fit that role, however, he did not do that. What is amazing is that he would of in a heartbeat.

The difference in these cases? The murder was in a busy Milwaukee court with a hyper-conservative judge and the sex case was in very rural Grant county with an incredibly flexible judge.

Any lessons here? Yes - if you are going to enter a plea (which is often a great idea) - be sure that it is what you want and that your attorney has adequately explained all of your options to you. Then you will not need to worry about coming back later to fix the mess. If you don’t like the deal - go to trial but only if your attorney is ready! If not get a continuance and a new lawyer.

John A. Birdsall, Birdsall Law Offices, S.C.
135 W. Wells St., Ste 214, Milwaukee, WI 53203
414.831.5465 -