Shut up & Take the Plea

If you’ve read any of my previous posts, or if you follow my #PDlife stories on twitter, you’ll know that I am a frustrated but happy public defender. Whether a prosecutor, judge, or defense attorney, the criminal justice system will likely piss you off. This system will often leave you making decisions that question your moral ethics when your professional ethics are not compromised. As an agency/institutional attorney (public defenders, prosecutors, non-profit attorneys, etc… basically, not working in the private sector) too often, we are treated as dispensible pawns whose sole purpose is to facilitate the court’s schedule. I am constantly asked to “adjourn this case” for a colleague, “set a motion schedule” for so-and-so’s case, and worst of all… “just take the plea” as a courtesy to the court. Too often, I feel like a “courtesy to the court” compromises my moral ethics, and the integrity of my practice. My job is to advance my client’s interest within the confines of the law.  Usually, my client’s interest is the court’s inconvenience – especially when someone decides to move forward with a case when the presiding judge is hoping to get the case off their calendar.  Unless I can properly inform the defendant of the case and give her/him advice based in skill, training and experience, I don’t feel comfortable suggesting anyone take a plea.  Honor is subjective, and in my view, it is never given, but earned.  My colleague suggested I not discuss honor in this post, but I cannot.  I find my line of work to be honorable.  And kowtowing to the court in ways that make me feel uncomfortable compromises my honor.  As such, I refuse to volunteer an assault on my honor with a plea, solely for the court’s convenience. When the defendant presses for a plea because they “want to get it over with” – this is where I throw in the towel and save myself. If you won’t take my advice to hold out on pleading guilty, then I shall announce on the record that I think the plea is outrageous/improper/unnecessarily harsh and that the defendant is prepared to take the plea against my advice.

But that is not the scenario presented here…

Printed yesterday (January 4th, 2010) in the New York Law Journal is a decision by the 2nd Dept. Appellate Division laying out a horrific story of (what appears to me) courtroom efficiency gone wrong. In February 2007, the defendant plead guilty to Burglary in the 1st degree before a Judge in Queens County Supreme Court. After he plead guilty, but before he was sentenced, the defendant was ASSIGNED A NEW ATTORNEY (this makes no sense). When it was time for sentencing, the new attorney stood there, uninformed, and ill equipped to properly advise while the judge decided to enhance the sentence because the defendant violated one of the terms of his plea agreement. The new attorney, who – like I said – is UNINFORMED, asked the judge for an adjournment so that he can order a transcript of the plea his client took. I would say that sounds fair. What would be the point of any attorney standing there to take a plea if s/he has nothing to pontificate on during sentencing?  The defendant was facing a new sentence that was not part of the plea deal.  If a NEW and UNINFORMED attorney is expected to properly advise the defendant, an adjournment for the attorney to inform her/himself of what her/his client is facing is the least the court can offer. Judge said no, gave the defendant an enhanced sentence and the lawyer couldn’t SAY or DO anything about it. Now this isn’t to say the defendant didn’t deserve the enhanced sentence – maybe he did. That shouldn’t matter. What DOES matter is that he deserves competent counsel at every stage of the proceedings being brought against him.

Nearly three years later, the appellate division vacated the sentence and sent the case back to Supreme Court in Queens County for the defendant to be resentenced.

Good Job Appellate Division!

xoxo, your favorite Public Defender

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