Don't Plead Guilty Out Of Fear Or Pressure From Your Lawyer or Because It's Easier, or to Avoid The Expense of Trial - The Consequences Last Forever
David S. Mejia's Louisville Criminal Defense Blog
All guilty pleas must be knowingly, voluntarily, and intelligently entered. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Tollett v. Henderson, 411 U.S. 258, 266-67, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); Haight v. Commonwealth, 760 S.W.2d 84, 88 (Ky. 1998); Woodall v. Commonwealth, 63 S.W.3d 104, 132 (Ky. 2002). The applicable Kentucky provision, RCr 8.08, requires a trial court to determine at the time of the guilty plea that it be “made voluntarily with an understanding of the nature of the charge.”
DON’T PLEAD GUILTY WITHOUT TALKING OVER THE FACTS
Every guilty plea requires a court determination that an adequate factual basis exists to support the defendant’s waiver of rights and guilty plea. The Kentucky Supreme Court (Kotas v. Commonwealth, 565 S.W.2d 445, 447 (Ky. 1978)) has stated that “the validity of a guilty plea is determined…from the totality of the circumstances surrounding it.” (citing Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)). A guilty plea is deficient if it lacks a verbal exchange between the court and the defendant to provide confidence that the accused knowingly and intelligently, and thus voluntarily, relinquishes known rights, and an admission of guilt in the face of facts presented in court and with full awareness of the consequences of his guilty plea.
IF YOU DIDN’T DO IT—DON’T ADMIT TO IT
In James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995) the court stated “[a] guilty plea is invalid if the defendant does not understand the nature of the constitutional protection that he is waiving or if he has such an incomplete understanding of the charges against him that his plea cannot stand as an admission of guilt. [Henderson v. Morgan, 426 U.S. 637, 645 N. 13, 96 S.Ct. 2253, 2257 n. 13, 49 L.Ed.2d 108. (1976)]. See also, Bronk v. Commonwealth, 58 S.W.3d 482, 486 (Ky. 2001).
MAKE YOUR LAWYERS DO THEIR JOB
A person’s “right to be represented by counsel is a fundamental component of our criminal justice system.” U.S. v. Cronic, 466 U.S. 648, 653, 104 S. Ct. 2039, 2043, 80 L. Ed. 2d 657 (1984). “[T]he right to be represented by counsel is by far the most pervasive for it affects [the defendant’s] ability to assert any other rights he may have.” Id. at 654, 104 S. Ct. 2044. Having “the right to counsel is the right to the effective assistance of counsel.” Id. (quoting McMann v. Richardson, 397 U.S. 759, 771, n.14, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763 (1970)). An accused is entitled to the service of an attorney whose advice is “within the range of competence demanded of attorneys in criminal cases.” McMann, 397 U.S. at 771. An attorney who negligently advises his client to confess to a crime, which thereby results in his client’s conviction and imprisonment, implicates the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668 104 Sup. Ct., 80 L.Ed.2d 674 (1984).
In Hill v. Lockhart, 474 U.S. 52 106 S.Ct. 366, 88 L.Ed 2d 203 (1985); Padilla v. Kentucky, 559 U.S. 356 (2010), 130 S. Ct. 1473 (2010); and Missouri v. Frye, 566 U.S. 134 (2012), the Supreme Court recognized that the negotiation of a plea bargain is a critical phase of litigation for purposes of determining an accused's right to effective assistance of counsel. Thus, an attorney's failure in the context or plea negotiations can constitute ineffectiveness. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
DON’T BE FORCED TO PLEAD GUILTY IF YOU ARE NOT
A lawyer’s forcing his or her client to plead guilty is not objectively reasonable nor justified. In Rompilla v. Beard, 545 U.S. 374 (2005) the Supreme Court discussed the obligation of defense counsel to conduct a prompt investigation, secure information in the possession of law enforcement authorities, and to independently examine the facts of the case. (See, 1 ABA Standards for Criminal Justice 4-4.1 (2d ed. 1982 Supp.)).
Worse than the dreaded experience of being arrested, searched, or questioned by police, is the near-paralyzing fear and anxiety of having to go to court to face a judge and prosecutor. To be sure that your attorney is the right one for you ask these two questions:
- How many cases like mine have you gone to trial and jury verdict?
- On those trials, what has been your success rate?
A lawyer who cannot answer these two questions, avoids them or is offended—even pissed off at being asked them—is not the lawyer for you. You may ask your prospective lawyer the following question—“If you were in my shoes, what is the name of the criminal defense attorney you would hire?” Then call that attorney.
ATTORNEYS WHO RELY ENTIRELY UPON THE POLICE OR THE PROSECUTOR FOR THE FACTS OF YOUR CASE ARE NOT DOING THEIR JOB
United States v. Russell, 221 F.3d 615 (4th Cir. 2000), citing Model Rules of Professional Conduct, Rule 1.1 (1999), stated that: "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." (Strickland, 466 U.S. at 691, 104 S.Ct. 2052). As the ABA Standards for Criminal Justice provide: "Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should include efforts to secure information in the possession of the prosecution and law enforcement authorities." (Russell at 620–21).
YOUR LAWYER MUST INVESTIGATE YOUR CASE
A lawyer’s failure to investigate can deprive an accused of effective assistance of counsel. In United States v. Russell, 221 Fed.3d 615 (4th Cir. 2000), the court addressed the issue of a trial attorney's failure to look in to the correctness of his client's criminal record. The defendant had informed his lawyer that his convictions had been "overturned." Nevertheless, defense counsel relied entirely upon the prosecutor when advising his client, when he testified before the jury at trial, to admit his prior convictions. The defendant followed his lawyer's advice. To make matters worse, the lawyer introduced the two tainted convictions during his client’s direct examination. Subsequent to trial, the probation office confirmed the fact that the defendant's two felony convictions were actually invalid. That lawyer was clearly deficient.
LAWYER’S WHO SAY “NO ONE WILL BELIEVE YOU. IT’S YOUR WORD AGAINST THE POLICE.” ARE ON THE SIDE OF POLICE, NOT YOURS
Pre-trial investigation and preparation, by defense counsel, are essential to effective representation of counsel (Rummell v. Estelle, 590 F.2d 103,104 (5th Cir. 1979)). Higher courts have repeatedly emphasized the necessity of adequate consultation between attorney and client, the interviewing of witnesses and the adequate investigation of potential defense witnesses. See, e.g., Goodwin v. Balkcom, 684 F.2d 794, 804-5 (11th Cir. 1982); United States v. Porterfield, 624 F.2d 122, 124 (10th Cir. 1980). See also, Wood v. Zahradnick, 578 F.2d 980, 982 (4th Cir. 1978). In United States v. E. Tucker, 716 F.2d 576 (9th Cir. 1983), the court of appeals found defense counsel constitutionally inadequate by the attorney’s failure to prepare a defense, failure to obtain relevant facts from his client, failure to pursue obvious leads provided by his client, failure to garner corroborating evidence for his client’s testimony, failure to interview or attempt to interview prosecution witnesses and general failure to conduct any form of pre-trial investigation in the case.
CALL AN ATTORNEY WITH A PROVEN TRACK RECORD OF SUCCESS IN CRIMINAL CASES—STATE AND FEDERAL
DAVID MEJIA, Attorney at Law, licensed in Illinois and Kentucky and many United States Federal Trials & Appeals Courts throughout the country has over 30 years of accumulated knowledge, training and experience representing individuals under investigation, arrest, charged and prosecuted. When stopped by police: do not consent to the search or your vehicle. Be courteous. Produce your identification. Do not argue, be respectful but do not answer police questions. If you are arrested, be cooperative. At the first opportunity, call a lawyer who concentrates in criminal defense practice, not just “a former prosecutor”. You have the right to an attorney; exercise it wisely by consulting the best attorney for you. ACT IMMEDIATELY.