What Not To Say When Taking A Plea OR The Need To Prep Your Client For His Plea Allocution

Jeffrey Blunt, 23 years old, was taking a package plea that was going to net him a total of 9 years in jail. While he was admitting to the crime, the court asked him the standard question of whether he had taken any narcotic that may negate his ability to understand the plea. He admitted he had...Marijuana...While he was incarcerated at the Monroe County Jail!! He had already plead guilty to one of the crimes. The judge gave Jeffrey 15 years on that charge and must have threatened to give him the whole 19 years he faced because the Manslaughter 2* case starts on Monday.

There is a lesson here aside from the fact that Jeffrey "found God" a little earlier than he should have... Plea allocutions are often overlooked by busy defense counsel. The results could be, as in this case, devastating. Plea deals get lost, days in court are wasted, and counsel looks like an ass. (So does the client of course but in a case like Blunt's we didn't expect much more.) Potentially the client could lose a plea bargain exposing him to a lot more time as in the case above. He could also blow his chance at getting a substantial assistance departure, or could, under the right circumstance, earn himself a perjury charge. He could talk his way into a confession on a new charge (in the Blunt case above, promoting prison contraband.)

Blowing a plea allocution is not something that is a rarity either. As a Legal Aid lawyer back in the 80's, (can it be that long ago???) I used to see it happen a few times a week. The reason? Not taking the time to review the questions that the client will be asked.

Under Boykin v. Alabama, 395 U.S. 238 (1969), the Supreme Court set a standard for all plea allocutions. The NY Court of Appeals weighed in with its decision in People v. Harris, 61 NY2d 9 (1983). The standard requires that the defendant at the time of allocution make a "knowing, voluntary and intelligent waiver of their constitutional rights" (to a jury trial; to remain silent; to not have to present a defense but to put the prosecution to their burden; to a lawyer even if they cannot afford one.)

The Harris court stated that "a uniform mandatory catechism of pleading defendants is not required, and a sound discretion exercised on an individual basis is preferable to a ritualistic uniform procedure. A record that is silent will not overcome the presumption against waiver by a defendant of constitutionally guaranteed protections, but the record must show an intentional relinquishment or abandonment of a known right or privilege. A detailed articulation and waiver of the rights to a jury trial, the privilege against compulsory self incrimination and the right to confront accusers is not constitutionally mandated, although the Trial Judge must make sure that the accused has full understanding of what the plea connotes and of its consequences."

The record must be clear enough so that there is some evidence on the record which affirmatively discloses that the defendant understood the alternative to pleading guilty. (See Hanson v. Phillips, 442 F.3d 789 (2d Cir., 2006.)

Understanding that there is no hard and fast "script" that a judge must use, most ask at least the questions that a defense attorney in a civil deposition might ask a witness to satisfy the "knowing, voluntary and intelligent waiver part of the allocution. Hence, after asking about whether a defendant has been advised of their rights to: silence, to an attorney, and to a trial of their peers, the court will inquire if they understand they are entitled to those rights; if anyone has forced them to relinquish those rights; if any promises have been made to obtain the waiver (a smart defense counsel will pipe up, if the court doesn't, that there was an agreement to plead guilty to "X" crime for "Y" sentence wherein the court will ask "other than the plea agreement entered into, was there any other promises made by anyone to convince the defendant to take the plea); is the defendant acting voluntarily (that no one coerced him to take the plea); and it will often ask if he is in good health or has taken any drug or alcohol that would impair his ability to understand the proceedings.

Counsel for the defendant should review these concepts and ask the actual questions of the defendant even on the day of the plea. Make sure the defendant is ready to give the answers you want him to give. IF he fails to give those answers then you must determine why. You cannot advise him to lie to the court. You can however ask for a continuance, (which is what the attorney for Blunt above should have done had she known he had used cannibis that morning) or explain to the defendant his rights, what his answer will do to the proceeding, and if he still wants to plead guilty.
If necessary an Alford, (North Carolina v. Alford, 400 U.S. 25 [91 S.Ct. 160, 27 L.Ed.2d 162 or Serrano(state court) (People v. Serrano, 15 N.Y.2d 305 [196])plea should be entered into for the purpose of getting the deal done.

Taking the time to prep the defendant for the plea won't always result in a successful outcome. A defendant entering a plea who, either doesn't think he is guilty, or doesn't like the plea bargain, may still destroy the allocution, but at least you will know that you did what you could to save him from himself.