Monday, August 04, 2008

The pathology of the criminal legal mind

Nowhere has the disciplines of psychology and the law been more deeply and unhealthily wed together than in criminal law. From the first law that attempted to separate the consequence between an avoidable tragic accident to a cold-blooded plan, society has become an attempt to unlock the criminal mind with a taxinomical approach to label every sin with its own statute. Incidentially, anyone who complains about hate crimes statutes because it bans "thought crimes" hasn't apparently given much thought from the difference between murder and involuntary manslaughter.

Our sexual predator statutes are entirely based on an unquestionable faith that psychiatry can determine within a reasonable degree of scientific certainty which sexual offenders are likely to reoffend and which ones aren't. But that's a topic for perhaps a later post.

Perhaps someday, the criminal jurist will put itself on the couch and realize just how insane the state of criminal law can be.

Imagine that you are accused of murder and are facing the possibility of life in prison without parole. Imagine that you are told if you go to trial, the State will insist on the maximum penalty, but if you plead guilty they'll agree to a life sentence which allows for the possibility of parole. You don't have an education beyond high school. You are indigent and have a court-appointed attorney who advises you to take the deal as it's the only likely chance you could ever see life outside at prison again.

Now you are given a form to sign in which to make your plea. Both the form and the judge accepting the plea tell you if you are ever released on parole, you'll be on parole for five years and if you violate the terms of your parole you could be sentenced for up to nine months in prison. Based on that representation, you agree to waive all of your constitutional rights, including the right to require the State to prove your guilty beyond a reasonable doubt, the right to a jury trial, your right confront the witnesses against you, the right to compel the testimony of any witness in your favor, the right to object to the admissibility of the evidence, the right to be represented by counsel, the right to appeal your case, and your right to be silent.

You are sentenced to prison. You later learn that if you are ever released on parole, you will face a lifetime of being on parole and that if you ever violate the terms of your parole, you can face re-incarceration for the rest of your life, instead of up to nine months as your judge told you.

Do you believe that such an error would mean that your decision to waive your rights and plea guilty was a voluntary, knowing, and intelligent decision?

If you're a three-member minority of the Ohio Supreme Court, the answer is tragically yes, your plea is knowingly and intelligent even given the mistaken information provided by the Court when you made your plea. In the Ohio Supreme Court's recent decision in State v. Clark, 2008-Ohio-3748, this three-member minority held that since the Court correctly informed the Defendant as to what the maximum sentence would be and informed him of the constitutional rights he was waiving, the erroneous information was not a prejudicial issue to render the Defendant's plea invalid, but instead should still be considered a knowing and intelligent decision.

What did the four-member majority rule? Well that such an erroneous instruction to a Defendant as to the full consequences of his pleas may have been prejudicial (i.e.- he may not have plead had he had accurate information), but the majority did not vacate the Defendant's plea. Instead, it remanded it to the trial court to determine if the court's erroneous information prejudiced the Defendant in making his plea.

But before I get into the insanity of that, let me point this out. The majority opinion actually advises Ohio's trial judges that they could potentially avoid the risk of this particular error by simply avoiding to inform Defendants as to the consequences of their plea might have as it relates to parole and possibilities penalities for violating their parole. This judicial wisdom comes from no other than the United States Supreme Court in the case of Hill v. Lockhart (1985), 474 U.S. 52, 56, where the highest Court in the land ruled that Defendant need not be told of the consequences of his plea may have on becoming eligible (if it all) for early release under parole and the possible consequences for violating the parole. Such information is not necessary to make a plea, apparently, knowingly or intelligently.

But let's take a look at the real insanity of the majority. Besides chastising the trial court for trying to inform the Defendant about how his plea may make him eligible for parole and what parole would mean, the Ohio Supreme Court held that his case should be remanded because the mistaken information might have prejudiced the Defendant's decison to enter the plea. But the court's confidence in mind reading is so strong, that it remanded it to the trial court so that it can determine if the erroneous information prejudiced the Defendant into making his decision.

Think about that. A guy who is charged with aggravated murder and is facing the possibility of life without parole if he goes to trial, has appealed his plea all the way to the Ohio Supreme Court because he says that his plea was not knowing and intelligent because of the obvious mistaken information the Defendant was given by the trial court judge-- someone the Defendant obvious had reason to believe was giving him accurate legal information about the consequences of his plea.

If the Defendant's sentence was vacated, he is back facing trial or trying to reach a new plea agreement. Why would the Defendant give the State the opportunity to possibly sentence the Defendant to life without parole, appeal his case to the highest court in the State, if he himself didn't believe that the erronous information affected his decision to make such a plea?

And why does the Ohio Supreme Court believe that the trial court can better judge whether the Defendant was prejudiced into the Defendant's decision to plea than the Defendant's own determination that the erroneous information lead to him to make a plea he might not have entered if he had correct information. Can one truly make a knowing and intelligent decision with faulty information? Unfortunately, we were one vote away from that being the law of Ohio.

But the majority's decision is as dysfunctional for it suggests that a person can make a knowingly and intelligent waiver of their constitutional rights if the person is given less information about the consequences of such a waiver and that a Defendant would actually appeal a decision to vacate his guilty plea over an issue that he truly didn't believe prejudiced his decision to waive his rights.

And that is why criminal jurisprudence needs to put itself on the couch and under the microscope just as often as it put the criminal mind.


LisaRenee said...

I've seen and read about situations where promises were made verbally then the defendant stands there and as he or she is entering the plea basically lies when they state no promises were made because that seems to be part of the system.

Then if a promise is not kept, it was verbal so it's harder to prove, but in this situation you stated it was put in writing that he would only face nine months in prison. It seems illogical that it would be an issue given it was in writing that would have even created him having to go that far in the appeals process.

Was anyone disciplined for the error in putting this in writing if it was a false promise?

Modern Esquire said...

I've always tried to give all plea discussion either on the record, or I'll put it in writing on the plea form. That protects my client to get what he is promised. And protects the court from my client later claiming something was part of the deal that wasn't.

All the parties can do is reach an agreed recommendation for sentencing. Technically, the judge cannot be bound by the parties agreement on sentencing, but will almost always indicate ahead of time if informed of the potential deal whether he or she is willing to abide by the parties' agreed recommended sentence.

I've never personally experienced it, I know of instances in which judges made representations as to what the sentence they would likely give if the Defendant made a plea, only for them to make a much harder sentence after plea. That's why an attorney should put such representations on the record or put them in writing (I've had judges express displeasure because I put such sentencing consideration in writing, but I've never had them depart from such sentencing representations as a result.)

To answer your next question, no, nobody was likely disciplined for this error. Bar discipline is an incredibly rare thing and normally requires a rather egregious act.

Errors happen in the law. Judges and attorneys sometimes make mistakes in instructing laypersons in the law. That's why we have an appeals court to reverse some of these errors, and I wouldn't even characterize the judge's mistake as malpractice, either. Sometimes a mistake is just a mistake, even though the consequences may be serious.

Regardless, the Defendant in this case was far from actually having a parole hearing, so the misinformation about how long he could be on parole and the consequences he could face for violating the terms of his parole were remote and far removed from present time.

LisaRenee said...

True, from a timing standpoint, it just seems unfortunate that if there was proof in writing that it could not be resolved.

I have not come across many situations where the plea deal was in writing, granted it could just be related to the few cases I've witnessed but it was something I wondered why was not put in writing.