The Defense Bar Gets S--T On

The BBQ Pit
1

It’s been a while since I have been involved in the world of criminal defense law.

But I see some things haven’t changed, and now these things are apparently getting imprimatur from the appellate courts.

The Virginia Court of Appeals handed down a case this week affirming the convictions of one Tyrone Alphonso Wilson. Now, I don’t hold Mr. Wilson up as a shining member of society. He was convicted of possession of cocaine with the intent to distribute, possession of marijuana with the intent to distribute, possession of a firearm while in possession of a controlled substance, and possession of a firearm by a convicted felon. He’s a bad boy.

The problem arises from the procedural history of his case. After his case was assigned to a judge for trial, Wilson, on the advice of his attorney, asked for a bench trial. When the day of trial rolled around, the original judge was ill. The trial was transferred to a new judge. Defense counsel obviously felt his guy’s chances at a bench trial were not as good with this new judge, so he withdrew his request for a bench trial and asked for a jury trial. The judge agreed to grant a jury trial, continued the case… and then chewed out the defense lawyer for “judge shopping.” As an apparent punishment for this “judge shopping,” the trial judge removed defense counsel’s name from the list of available court-appointed attorneys. (In areas where there is no Public Defenders office, indigent defense is handled by a rotating cadre of available court-appointed attorneys. Many lawyers depend on this to make some or all of thier living).

So the case goes back for assignment to a trial judge for trial… and the same judge is assigned to preside over the jury trial. As both the Commonwealth and the defense appeared for trial that morning, the Commonwealth told the judge that they had reached a plea agreement with the accused. The following rather incredible conversation ensued:



[COMMONWEALTH'S ATTORNEY]:  Before the court 
proceeds in this case further, it's my understanding that [Wilson] 
would like to enter a plea of guilty.  We don't have a plea 
agreement written out.  We would ask the court to accept the plea.  
It calls for a total sentence of twenty years with four to serve.
THE COURT:  I'm sorry, but we're getting ready to start a trial. 
You-all have had plenty of time to negotiate.  We're not doing any 
negotiations right now.  We're starting a trial.
MR. ZALESKI:  You're rejecting the agreement?  I would move-
THE COURT:  There is no agreement.  This case is beginning 
trial.  You are beyond your time to negotiate a plea agreement. 
We're starting a trial today.
(Emphasis added).  The Commonwealth then explained, "[O]nce the court hears what this is, I 
think Your Honor will understand why there's these last minute plea negotiations."  Judge 
Griffith conducted a brief hearing in chambers during which the Commonwealth expressed its 
reasons for offering the plea agreement.   Afterwards, Judge Griffith stated, "You seem to think 
. . . that somehow or another you have a right to stop everything and present a plea agreement 
and force me to consider a plea agreement.  This trial is ready to begin.  Your time for 
negotiating is over.  It's time to start the trial."  The following exchange then occurred:
MR. ZALESKI:  Is the court saying you will not consider any plea 
agreement at this time?
THE COURT:  You have no plea agreement.
MR. ZALESKI:  That is the court's position?
THE COURT:  We have started a trial.  It's too late to negotiate.
MR. ZALESKI:  You are stating you will not consider any plea 
agreement at all?
THE COURT:  I'm not going to interrupt this trial and submit a 
plea agreement.  That's correct.  We are ready to start the trial.
MR. ZALESKI:  Your Honor, we're going to have a lunch break. 
We're going to have-we're going to have certainly a break to go 
to the bathroom.
THE COURT:  Are you suggesting, Mr. Zaleski, that once a trial 
begins that the court has to consider a plea agreement?
MR. ZALESKI:  Yes, Your Honor.  I can get the rules out.  Let's 
look at it.
THE COURT:  You're saying you can stop any trial and force the 
court to undertake a plea agreement if the court rejects it thereby 
obviating your entire trial?  I think you are wrong about that.  And 
we'll just have to let you challenge that.  Let's go.

I’ve never heard of a judge rejecting a plea agreement without even hearing it. Certainly the court does not have to accept a plea agreement it doesn’t feel is merited, but this wholesale rejection of any plea the accused might offer certainly smacks of something more than the disinterested pursuit of justice.

It’s true that the rules in Virginia require a plea agreement to be in writing, and signed by the Commonwealth’s attorney. It’s this failure that the appellate court hangs its hat on when affirming the conduct of the trial judge. But it’s clear to me from that transcript that the judge was not rejecting the plea simply because the parties didn’t have it written down; as the defense attorney indicated, they were going to have breaks in the trial, and any one of those breaks would have been sufficient time to memorialize the plea agreement and present it. The judge was clearly saying he wasn’t going to accpet ANY plea, no matter what it was.

It was disingenuous for the Court of Appeals to hide behind the thin rationale of “the plea agreement wasn’t in writing” and ignore what i think is obvious to anyone who’s spent time in front of a vindictive judge: the judge was pissed off at the attorney for rejecting the bench trial at the first reassignment, and chose to teach him a lesson at the expense of his client.

I think this sucks.

And I hope that the Virginia Supreme Court will take another look at this screw-up and do the right thing.

2

I just looked at the first part of the en banc opinion. A couple things are worth noting: the plea agreement was for twenty years, to serve four; the judge departed upwards from the sentencing guidelines to sentence Wilson to sixty years, to serve twenty. That’s a pretty big difference. The other interesting thing is the judge’s supposed emphasis on Wilson’s status as a “major league” drug dealer. The facts as recited in the opinion don’t seem to support that.

You’re right, though: this is a vindictive judge who, for whatever reason, isn’t getting smacked down by the appellate court the way he should. Sounds like what originally got his dander up was the realization that defense counsel would rather have a jury than a bench trial if he’s on the bench. Frankly, counsel made the right call.

3

It appears as if the judge did hear a version of the plea agreement. Right there in the transcript it states “It calls for a total sentence of twenty years with four to serve” from the commonweath’s attorney. Not as formal or as laid out as one would expect a plea agreement to be, but there it is.

I mean, the intent here is pretty obvious and I agree with Bricker in his analysis, but we still have someone who technically complied with the rules.

4

How often does this sort of shit happen? I’d be mighty pissed off if I were a taxpayer footing the bill for a trial just to stroke the ego of one judge.

5

That is one batshit crazy judge. Essentially, the defendant wants to enter a plea of guilty and the judge is refusing to accept it. How can you force someone to go to trial? Anyway, pretty much every judge I ever ran across would practically fall all over him or her self to keep from having a trial. They’re time consuming, expensive and boring affairs.

6

It had nothing to do with the defendant. The judge wasn’t finished punishing defense counsel.

7

Minor hijack. How does payment by the court compare to payment by a client? It would seem to me that in certain locales it might be desireable to be taken off the list. Is that ever the case? Although I suppose that in an area that is affluent enough for this to be the case, there would be a Public Defenders office.

8

Heh.

Heh, heh, heh, heh, heh.

(That’s my dry chuckle, for those wondering.)

Not that this question raises any bitter feelings on the part of yours truly, or anything.

The maximum the Commonwealth will pay a lawyer to defend a misdemeanor is $148. No matter how many hours you put in on the case – your fee cannot exceed $148. The maximum penalty your guy might get is a year in jail and a fine of $2,500. To avoid that fate, your fee is $148. Max.

Surely it must be better for felonies, right?

The maximum fee an appointed attorney may collect for felony defense is $395. Again, no matter how many hours you put into the case. $395.

Murder cases. Ah, there’s the big money. We all know how quickly a competent attorney can prepare and defend a murder case. Surely that maximum fee will be reasonable.

$1096.

That’s to interview and prep witnesses, interview your client, prepare motions, and work a days-long trial. $1096.

It’s possible to make money as an appointed attorney. Limit your practice to drug possession, bad check, and grand larceny cases. These allow you to collect the felony fee, and generally are simply enough that you can do them in 15-20 hours apiece. Stay away from felony assaults, robberies, anything where you have a bunch of “civilian” witnesses to deal with and a bigger chance of going to trial. For God’s sake, don’t go to a jury trial on a single felony count. You WILL lose money.

To answer your question: if you’re on the list, it’s because you’ve determined you’ll get cases. If you’re off the list, it’s unlikely that well-heeled defendants will come flocking to your door.

9

Thanks. I know a woman in PA who works for the Public Defenders office. Personally, having seen a few of her clients, I don’t think I would wanna hang with them unless bigger bucks were involved. My bad, but oh well. :wink:

10

Do you know when these fee schedules were last updated and how they were determined?

11

I thought “Judge shopping” was common practice. I picked my current Family Law attorney because I heard her doing just that while preparing to file papers on my own. Also slightly off topic, is a bench trial better for you if you’re guilty?

12

Bricker, I find it hard to believe that pay scale. It must not include trials. I mean the most minimal misdo trial is going to take two days from Voir dire to verdict. Are you saying that an attorney in that jurisdiction can expect no more than 148 dollars? Thats 2 hours prep- motions in limine, jury instructions, voire dire then 10 hours trial for total of 12 hours. Plus witness interviews, client interviews a couple early settlement conferences, a trial setting conference, a trial confirming conference, a pre-trial conference. Maybe a bail motion and a seperate suppression motion also. Minumum hours I can imagine on a misdo that goes to verdict is about twenty hours. By your scale that works out to about .70 per hour. If it is really that little I find it hard to believe it would stand constitutional scrutiny. What am I missing?

13

So, did they never try to present a written plea agreement? I agree with you, the judge was biased and a hardass, but I don’t know that he did anything reversable, regarding the unconsidered plea agreement. If they had tried to submit it and he didn’t accept the submission, then yes.

14

If you’re found guilty, I’d say the trial pretty much didn’t work out well for you in either event :slight_smile:

“Guilty” is decided when the verdict is rendered. What you’re probably asking is what’s better if you actually did what you stand accussed of doing. Even then I would surmise that the skills of your lawyer come into play a great deal here.

But to stop getting so technical and go way way more general: it depends. It depends on the judge you’re facing and it depends on the outlook of the average potential juror within your county/state/circuit. Most people only hear about the outlandish decisions of either side but from what I understand (though have never researched), either can be better than the other depending on a number of factors including those listed above.

15

That judge is a royal ass, and unworthy of his robes.

16

Question: are judges at the State or Commonwealth level required to accept the terms of a plea agreement merely by virtue of accepting the plea? I know at the Federal level, the government can negotiate a plea and write a plea agreement that includes a sentencing recommendation, but the judge isn’t bound to adhere to any particular terms and has the authority to impose a sentence all the way up to the maximum on whatever charge the defendent has plead to. So couldn’t the judge in this case have accepted the guilty plea, yet not accept the sentencing recommendation and given the guy 60 years anyway?

17

Usually the way it works is that the judge can change the sentence but the defendant can then withdraw his plea.

18

I’m not sure how they were determined.

There’s actually a rule that makes the presumptive fee $90 per hour. But that’s utterly meaningless, since there is law that caps fees for each type of case to the figures I mentioned. They were set in 1999, IIRC.

Nothing, except that your math is wrong. 20 hours and $148 is $7.40 per hour. That’s above minimum wage, so why should we complain? :confused:

With regard to constitutional scrutiny… see Webb v. Commonwealth, 32 Va. Ct. App. 337, 528 S.E.2d 138 (2000). Webb’s appellate counsel raised this argument, essentially saying that the statutory fee caps forced Webb’s lawyer into a conflict between his own financial well-being and his duty to zealously defend his client.

The Court of Appeals rejected the argument, and during the pendency of the appeal a Virginia judge announced that any court-appointed lawyer appearing before him who felt similarly conflicted would be removed from his or her case and removed from the county’s list for appointments. That was the last - thus far - any court-appointed lawyer has tried to raise a claim about the indigent defense system in individual cases anywhere else in Virginia.

19

Agree with Enderw24. It depends.

If you have a strong argument on a technical point of law, then you may be better of in a bench trial.

For example, I once had a larceny case in which the Commonwealth failed to prove asportation. (At common law, larceny must consist of both a taking - “caption” - and a carrying away - “asportation.” That was an easy argument to make to a judge, though it really was a lawyer-trick-type thing. A jury would be much more “common sense” about it, and potentially convicted even though there was no direct evidence that my guy actually took the object in question away.

if you had a shot at an emotional appeal – sure, my guy stole from the supermarket, but he took food… then a jury might be a good bet.

20

Dohhh! I am a :wally hence the JD instead of an MBA… Still I am glad I don’t practice there.