# The Defense Bar Gets S--T On **URL:** \ **Category:** The BBQ Pit\ **Created:** [August 25, 2005, 2:10pm UTC](https://boards.straightdope.com/t/the-defense-bar-gets-s-t-on/318559 "2005-08-25T14:10:35Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Shayna](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/shayna/32/17976_2.png) [@Shayna](https://boards.straightdope.com/u/Shayna)\ **Post date:** [August 25, 2005, 8:15pm UTC](https://boards.straightdope.com/t/the-defense-bar-gets-s-t-on/318559/21 "2005-08-25T20:15:51Z")
> [@askeptic](#): > > Usually the way it works is that the judge can change the sentence but the defendant can then withdraw his plea. Interesting. Thanks. Another question, because I’m not quite following this. There’s an exchange at the end of the quoted section: > [@](#): > > 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. First of all, it sounds like the judge is asking 2 entirely different questions. The first question is whether or not he should be required to “consider” a plea agreement, to which the attorney responds, “yes.” Then the judge, supposedly clarifying, asks a completely different question; whether the rule suggests he must “undertake” (I presume to mean, under the standard definition [though perhaps there’s a different legal one], to agree to, or to commit to) a plea agreement and “obviate” an entire trial. So what was actually challenged and upheld; that the judge had the right not to even consider a plea agreement at all, merely because a trial had already begun, or that he wasn’t obligated to accept it, and could rule that the trial should proceed? In fact, it sounds like the appellate court ruled on yet a third issue; that the judge was within his legal rights not to even consider the plea because it wasn’t submitted in writing according to the rules. So what, then, is the answer to the 1st question – _can_ a judge refuse to hear a plea at all just because a trial has started and for no other reason? Don’t defendents enter into plea agreements at various times during trial proceedings, “thereby obviating [the] entire trial” all the time? Or is that just on Law and Order? ---
**Author:** ![askeptic](https://avatars.discourse-cdn.com/v4/letter/a/eb9ed0/32.png) [@askeptic](https://boards.straightdope.com/u/askeptic)\ **Post date:** [August 25, 2005, 8:28pm UTC](https://boards.straightdope.com/t/the-defense-bar-gets-s-t-on/318559/22 "2005-08-25T20:28:46Z")
Sounds like the judge is just being an ass. A defendant may withdraw his plea of not guilty and enter a guilty plea at any time prior to a verdict. Judges are not bound by any term in the agreement and may impose a sentence notwithstanding the agreement between the prosecutor and the defendant. But then as stated above a defendant may withdraw a guilty plea if the sentence deviates from the terms of the agreement. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 25, 2005, 8:38pm UTC](https://boards.straightdope.com/t/the-defense-bar-gets-s-t-on/318559/23 "2005-08-25T20:38:51Z")
> [@Shayna](#): > > So what was actually challenged and upheld; that the judge had the right not to even consider a plea agreement at all, merely because a trial had already begun, or that he wasn’t obligated to accept it, and could rule that the trial should proceed? In fact, it sounds like the appellate court ruled on yet a third issue; that the judge was within his legal rights not to even consider the plea because it wasn’t submitted in writing according to the rules. Right. The appellate court chose to ignore the commentary about not accpeting a plea at any time after trial started, and focused on the fact that the plea was not in writing. The idea that the attorneys involved would have felt free to submit a plea in writing after that conversation is… farfetched. > [@](#): > > So what, then, is the answer to the 1st question – _can_ a judge refuse to hear a plea at all just because a trial has started and for no other reason? Don’t defendents enter into plea agreements at various times during trial proceedings, “thereby obviating [the] entire trial” all the time? Or is that just on Law and Order? There is no rule forbidding the Commonwealth and the accused from negotiating a plea during trial, or stopping the judge from accepting it during trial. It happens all the time. Someone initially reluctant to take a plea may hear a particularly vigorous performance by a Commonwealth witness and decide he’d better take the deal. Sometimes the Commonwealth case doesn’t look as good as it did before trial started and the ACA will come back with a better offer. It happens every freaking day. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 25, 2005, 8:42pm UTC](https://boards.straightdope.com/t/the-defense-bar-gets-s-t-on/318559/24 "2005-08-25T20:42:31Z")
> [@askeptic](#): > > Sounds like the judge is just being an ass. The thing is… Some judges are asses. Some judges are horrendously incompetent. I knew a judge who would glance at his clerk for clues on which way he should rule. It was an open secret. The difference here is that the ass-ery, if you will, ended up blatantly on the record, and was _affirmed by the intermediate appellate court_. My experience with those fine gentleman, back in the day, was that they were NOT asses. This is why I’m so amazed at this case. Little BS power plays happen all the time at the trial court level. For this particular power play to get the sanction of the appellate court is what’s got me crazy. ---
**Author:** ![askeptic](https://avatars.discourse-cdn.com/v4/letter/a/eb9ed0/32.png) [@askeptic](https://boards.straightdope.com/u/askeptic)\ **Post date:** [August 25, 2005, 8:49pm UTC](https://boards.straightdope.com/t/the-defense-bar-gets-s-t-on/318559/25 "2005-08-25T20:49:05Z")
I agree. But I don’t see reversible error here. I mean the judge is never bound by the terms of the plea agreement. In this case the judge knew that he would not sentence according to the terms and that if he accepted the plea and imposed a higher sentence that the plea would be withdrawn. Therefore going through the motions of entering a plea would just prolong the inevitable. The judge is still an ass but apparently not a reversible ass. ---
**Author:** ![threemae](https://avatars.discourse-cdn.com/v4/letter/t/5f9b8f/32.png) [@threemae](https://boards.straightdope.com/u/threemae)\ **Post date:** [August 25, 2005, 8:56pm UTC](https://boards.straightdope.com/t/the-defense-bar-gets-s-t-on/318559/26 "2005-08-25T20:56:37Z")
Hopping Jesus Christ on a pogo stick. $1,096 to defend a murder case? And out of curriosity, what do you think the state is willing to spend on prosecuting the same case? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 25, 2005, 9:00pm UTC](https://boards.straightdope.com/t/the-defense-bar-gets-s-t-on/318559/27 "2005-08-25T21:00:21Z")
> [@askeptic](#): > > I agree. But I don’t see reversible error here. I mean the judge is never bound by the terms of the plea agreement. In this case the judge knew that he would not sentence according to the terms and that if he accepted the plea and imposed a higher sentence that the plea would be withdrawn. Therefore going through the motions of entering a plea would just prolong the inevitable. The judge is still an ass but apparently not a reversible ass. Except for Rule 3A:8(c)(4). That rule provides, _inter alia_, that if the court rejects the plea agreement, and the defendant chooses to withdraw his plea of guilty,his case will be heard by another judge, unless the parties agree otherwise. This prevents a trial judge from being “poisoned” by the knowledge that the accused pled guilty. So if the judge had followed the rules, at least the guy could have had his trial before a different judge. Normally, I’d agree that such a failure is not reversible error. Given this particular judge’s antipathy, however… Of course, the Court of Appeals found there was no antipathy; they kicked the assignment of error on the failure to recuse. It still stinks like yesterday’s diapers. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 25, 2005, 9:04pm UTC](https://boards.straightdope.com/t/the-defense-bar-gets-s-t-on/318559/28 "2005-08-25T21:04:14Z")
> [@threemae](#): > > Hopping Jesus Christ on a pogo stick. > > $1,096 to defend a murder case? > > And out of curriosity, what do you think the state is willing to spend on prosecuting the same case? I’m willing to bet it’s a tad more than $1,096. Nice system, eh? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 25, 2005, 9:08pm UTC](https://boards.straightdope.com/t/the-defense-bar-gets-s-t-on/318559/29 "2005-08-25T21:08:04Z")
Oh, get this cute trick: Let’s say you get a murder case. You interview witnesses, appear for pre-trial motions, research constitutional issues… and you reach a plea. You submit your invoice for your princely sum of $1,096. The judge cuts it to $395 because “you never went to trial.” Now, how do you appeal that decision? Answer: you can’t. Virginia has a 21-day rule. 21 days after disposition, the trial court loses jurisdiction to do pretty much anything on the case. Of course, by the time the reduced payment makes its way to you and you discover that your fee has been cut, the 21 days has elapsed. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 25, 2005, 9:09pm UTC](https://boards.straightdope.com/t/the-defense-bar-gets-s-t-on/318559/30 "2005-08-25T21:09:19Z")
This has turned into a rant on my former life. Didn’t plan it this way. But still have a fair degree of bitterness built up, it seems… ---
**Author:** ![NicePete](https://avatars.discourse-cdn.com/v4/letter/n/ee7513/32.png) [@NicePete](https://boards.straightdope.com/u/NicePete)\ **Post date:** [August 25, 2005, 9:15pm UTC](https://boards.straightdope.com/t/the-defense-bar-gets-s-t-on/318559/31 "2005-08-25T21:15:34Z")
> [@Bricker](#): > > It had nothing to do with the defendant. The judge wasn’t finished punishing defense counsel. Oh, I understand that. However, it is the defendant’s rights that are being affected. In my experience, asshat judges are very much the exception rather than the rule. However, the jerks and idiots tend to be _real_ jerks and idiots. ---
**Author:** ![Shayna](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/shayna/32/17976_2.png) [@Shayna](https://boards.straightdope.com/u/Shayna)\ **Post date:** [August 25, 2005, 9:37pm UTC](https://boards.straightdope.com/t/the-defense-bar-gets-s-t-on/318559/32 "2005-08-25T21:37:17Z")
Thanks for the further clarification, **askeptic** and **Bricker**. That’s exactly what I thought, which is why I couldn’t figure out what this judge must have been smoking to have replied the way he did during that exchange. Surely he must know the rules, yet snidely dared the attorney to challenge him on them. I’m no attorney (obviously - duh!), but regardless of what the judge might have thought about the expected outcome of allowing the plea to be entered, rejecting the sentencing recommendation for a longer term and the plea being withdrawn, that’s not what the he put forth as his reason for going ahead with the trial, nor was it the reason the appellate court upheld his ruling. And just because something _might_ have gone a certain way in the process, doesn’t mean you can just rule willy-nilly such that the end result is the same as what you _think_ might’ve resulted had it played out by the actual rules. IOW, the ends don’t justify the means, and, if I’m understanding this right, in this case the means didn’t go by the rules, so not only was the judge in error, so was the appellate court. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [August 25, 2005, 9:42pm UTC](https://boards.straightdope.com/t/the-defense-bar-gets-s-t-on/318559/33 "2005-08-25T21:42:55Z")
> [@Bricker](#): > > Except for Rule 3A:8(c)(4). > > That rule provides, _inter alia_, that if the court rejects the plea agreement, and the defendant chooses to withdraw his plea of guilty,his case will be heard by another judge, unless the parties agree otherwise. This prevents a trial judge from being “poisoned” by the knowledge that the accused pled guilty. Except, in this case, it doesn’t look like a plea agreement was ever submitted for review. You just have both sides saying, “We’ve come to a plea agreement”, right? ---
**Author:** ![Random](https://avatars.discourse-cdn.com/v4/letter/r/57b2e6/32.png) [@Random](https://boards.straightdope.com/u/Random)\ **Post date:** [August 25, 2005, 9:52pm UTC](https://boards.straightdope.com/t/the-defense-bar-gets-s-t-on/318559/34 "2005-08-25T21:52:00Z")
The problem with that was pointed out by **Bricker** : After those comments by the judge, there’s no way the attorneys would have felt free to submit it. And there was time to prepare and submit it. Trials have breaks. ---
**Author:** ![Shayna](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/shayna/32/17976_2.png) [@Shayna](https://boards.straightdope.com/u/Shayna)\ **Post date:** [August 25, 2005, 10:01pm UTC](https://boards.straightdope.com/t/the-defense-bar-gets-s-t-on/318559/35 "2005-08-25T22:01:30Z")
> [@Bricker](#): > > Except for Rule 3A:8(c)(4). > > That rule provides, _inter alia_, that if the court rejects the plea agreement, and the defendant chooses to withdraw his plea of guilty,his case will be heard by another judge, unless the parties agree otherwise. Aha! Well that explains it all right there. He refused to even entertain the plea agreement because he knew that insodoing there was a likelihood that the accused would get his new judge afterall, and he’d be damned if he’d let this guy “win.” But now I’ve thought of another question. . . The judge refuses to “consider” a plea agreement and insists the trial proceed, so the plea agreement isn’t even officially on the record. _Is_ there a break, during which time they _could_ have put the agreement in writing and tried submitting it per the rules? At that point, there are no further legal grounds for the judge to deny even hearing it, right? We already know that the lame “the trial has already started” argument is bullshit, and so do the attorneys. So wasn’t the commonwealth and defense counsel negligent in not putting it in writing and officially entering it into the proceeding per the rules? Does the defendent have a case for appeal based on inadequacy of counsel based on this omission? ---
**Author:** ![Shayna](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/shayna/32/17976_2.png) [@Shayna](https://boards.straightdope.com/u/Shayna)\ **Post date:** [August 25, 2005, 10:07pm UTC](https://boards.straightdope.com/t/the-defense-bar-gets-s-t-on/318559/36 "2005-08-25T22:07:40Z")
> [@Random](#): > > The problem with that was pointed out by **Bricker** : After those comments by the judge, there’s no way the attorneys would have felt free to submit it. But why not? They MUST know the rules and that the nonsense about the trial already starting wouldn’t pass scrutiny _if_ they had an official agreement in writing to submit. Are you saying these guys were too chickenshit to cross the judge by even trying? That just doesn’t make any sense. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [August 25, 2005, 10:15pm UTC](https://boards.straightdope.com/t/the-defense-bar-gets-s-t-on/318559/37 "2005-08-25T22:15:19Z")
> [@Random](#): > > The problem with that was pointed out by **Bricker** : After those comments by the judge, there’s no way the attorneys would have felt free to submit it. And there was time to prepare and submit it. Trials have breaks. But if the attorneys try to submit it after the comments by the judge, and he doesn’t even look at it, they have grounds for appeal. If they don’t even try to properly submit it, then what can the appeals court do? ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [August 25, 2005, 10:17pm UTC](https://boards.straightdope.com/t/the-defense-bar-gets-s-t-on/318559/38 "2005-08-25T22:17:26Z")
> [@Shayna](#): > > But why not? They MUST know the rules and that the nonsense about the trial already starting wouldn’t pass scrutiny _if_ they had an official agreement in writing to submit. Are you saying these guys were too chickenshit to cross the judge by even trying? That just doesn’t make any sense. You’re right. Even if you know you’ll get your ass handed to you, as a lawyer you have to protect your record. I get why they didn’t draft and submit a written plea agreement, but they still should have drafted one and told the judge they needed to submit it for the record. Which, frankly, would have signalled strongly the intent to appeal, and the judge may have reconsidered his rash actions. On preview, what **Captain Amazing** said. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 25, 2005, 11:58pm UTC](https://boards.straightdope.com/t/the-defense-bar-gets-s-t-on/318559/39 "2005-08-25T23:58:38Z")
> [@Shayna](#): > > So wasn’t the commonwealth and defense counsel negligent in not putting it in writing and officially entering it into the proceeding per the rules? Does the defendent have a case for appeal based on inadequacy of counsel based on this omission? Not the commonwealth attorney. It’s not his job to insist on a plea. Defense counsel should have protected his record better. He should have insisted on making an offer of proof with a written plea agreement at the first break. The problem was that this judge had already punished him by taking away a source of income for him by removing him from the appointments list. If he pushed this matter, then maybe the judge punishes him with the next five guys he repesents. Yes, his duty to his client should outweigh all that. But a man’s gotta feed his family, and believe me: if he was relying on court appoint fees, his family wasn’t eating lobster too many nights. I think he was intimidated into not making his record properly. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 26, 2005, 12:05am UTC](https://boards.straightdope.com/t/the-defense-bar-gets-s-t-on/318559/40 "2005-08-26T00:05:35Z")
> [@Campion](#): > > You’re right. Even if you know you’ll get your ass handed to you, as a lawyer you have to protect your record. I get why they didn’t draft and submit a written plea agreement, but they still should have drafted one and told the judge they needed to submit it for the record. Which, frankly, would have signalled strongly the intent to appeal, and the judge may have reconsidered his rash actions. > > On preview, what **Captain Amazing** said. Keep in mind too that the Commonwealth’s Attorney may have been discouraged from approving the plea after he heard the judge’s reaction. Listen: at trial, there are a thousand little breaks that a judge can give you or not give you. A savvy judge can torpedo you with rulings that will easily survive appeal. If a judge has shown that he’s willing to play that game, and you’re an Assistant Commonwealth’s Attorney that has to appear before him every other week… do you really want to get on his bad side? [Previous page](https://boards.straightdope.com/t/the-defense-bar-gets-s-t-on/318559.md?page=1) [Next page](https://boards.straightdope.com/t/the-defense-bar-gets-s-t-on/318559.md?page=3)