“What we have done in this court, now we are focusing on the offer process to make sure we have a record made of, ‘Did the defendant know what the offer was?’” Greene County Common Pleas Judge Stephen A. Wolaver said.
“We have to make sure that the defendant is aware of the dynamic of the plea bargaining process and what he should do with the process — which is consider the offer, consider the pros and cons and decide affirmatively whether or not he wants to take that offer.”
The added step is a hearing on the record in open court where the judge asks the prosecution to describe the deal and ask defendant if he or she has heard the plea offer. This process only happens in a small fraction of cases when a defendant rejects a deal, but the impact could otherwise grow based on standards set by the U.S. Supreme Court.
“It’s another procedure to go through,” Greene County Prosecuting Attorney Stephen K. Haller said. “Anytime there’s a big decision like that you have to sit down and analyze it and figure out how do we make sure we’re following those guidelines.”
Wolaver said he’s held two or three such hearings in the past month.
“I think it protects everybody,” said defense attorney Jay Adams, who was in Wolaver’s court when one of Adams’ clients turned down a plea offer. “The defendant acknowledges, the defense attorney acknowledges, the prosecution acknowledges. That way there’s no confusion as to what the offer is.”
Setting precedent
The additional hearing is Greene County’s solution to two recent 5-4 Supreme Court decisions that effectively say defendants have a constitutional right to a competent attorney’s counsel regarding plea agreements. In both cases – Missouri v. Frye and Lafler v. Cooper – convictions were overturned due to faulty legal representation.
Noting that between 94 and 97 percent of all state and federal convictions resulted from guilty pleas, Justice Anthony M. Kennedy wrote in the majority in both cases that, “Ours for the most part is a system of pleas, not a system of trials.
“The negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for the defendant.”
University of Dayton law professor Tom Hagel, a former public defender, said these were good decisions.
“One of the dirty secrets of the criminal justice system is how bad are appointed counsel system is,” he said. “Our public defenders, I think, do a wonderful job. They’re overburdened, but they do a wonderful job.
“But a lot of people who are represented by court-appointed attorneys are represented by people who are not public defenders. They may have very limited expertise in criminal law and consequently I think there is a lot of ineffective assistance of counsel in the system. Therefore, I think this is very important.”
Avoiding problems
The dissent in both cases was written by Justice Antonin Scalia, who said the court “judicially invented right to effective plea bargaining” as part of the Sixth Amendment and that the precedent could lead to mountains of litigation.
To avoid such problems, Haller said he’s talked with his colleagues in Ohio Prosecuting Attorneys Association (OPAA) about the form defendants get describing the plea offer and the open court discussion of the plea rejection. If some defendant says, “I’ve never heard that offer’ then we’ve got a problem and we have to figure out how to deal with it,” Haller said.
“We’re wasting taxpayers’ money and a lot of time and effort in trying these cases if they’re going to be set aside afterwards on the grounds that the defendant didn’t know what the plea offer was,” said OPAA Executive Director John Murphy.
“All we can do is try to minimize the risk.”
Hagel said he hoped it was the norm that defense attorneys already were communicating clearly and effectively with their clients about plea offers: “If people were lax on that, then I think this will motivate them to make sure they do that.”
Seeking fairness
Kennedy also wrote that longer sentences exist for bargaining purposes and individuals often get longer terms at trial than those who plead guilty.
Wolaver said that the so-called “trial tax” has long been a term attorneys used.
“There’s always been a tradition attitude on the part of lawyers that judges ... they call it the trial tax ... that the judge would impose a more significant sentence on someone simply because they went to trial.
“I don’t think someone should be punished for going to trial. (But) without the plea bargaining process, the justice system would not operate at the current level we’re at.”
Justice Kennedy wrote that courts could enact “measures to help ensure against late, frivolous or fabricated claims” of a faulty legal defense.
That’s what Greene County is trying to do since no one has the staff or time to operate a court without pleas. “You can’t try every case,” Haller said. “We’ve got to make sure this is fair. Frankly, that’s my job. I’m not just there to get a conviction. We’ve been called the ministers of justice. We’re supposed to make sure the right thing is done.”
Contact this reporter at (937) 225-6951 or mgokavi@DaytonDailyNews.com.
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