The Elaborate Pantomime of The Federal Guilty Plea

More than a decade ago I stood next to my client, a fourth-grade-educated immigrant using a Spanish interpreter, as a federal judge explained epistemology to him at length.

The road to this moment was rocky. The client had previously attempted to plead guilty to possession of heroin with intent to distribute. Midway through his previous guilty plea colloquy, the federal judge — let's call him Judge Allows — had abruptly asked the client's previous appointed attorney why he hadn't moved to suppress the search of the client's car. The attorney explained he didn't think it was a strong motion and wanted to take advantage of the Assistant U.S. Attorney's plea offer. Judge Allows scoffed and indicated he thought it looked like a plausible suppression motion. The client, not surprisingly, lost faith in this prior appointed attorney based on the judge's words, halted the plea, and asked for a new attorney. I was serving on the indigent defense panel, and I was appointed to replace prior counsel.

I reviewed the discovery, conferred with my client, and prepared a motion to suppress. The client had driven up the driveway of a known drug house that was under surveillance, parked for several minutes while he went into the house, then left the house and drove away. Cops stopped him blocks away and searched his car and found the heroin. I argued that these facts were insufficient to supply probable cause to search the car. I thought the motion was plausible, but not strong, and still do. At the hearing on the motion, Judge Allows berated me for filing a motion that clearly was not going to succeed — a "shot in the dark motion," as I recall he described it. That would be the same motion he berated former appointed counsel for not filing, leading to the breakdown in the client's relationship with his former lawyer.

I stood and took the rebuke, as one does. Thereafter the client agreed to plead guilty. I prepared him for the lengthy and complex federal change of plea colloquy to the best of my ability through an interpreter, hindered by his modest education and lack of sophistication. Midway through the plea colloquy, Judge Allows was explaining the elements of the federal crime of possession of a controlled substance with intent to distribute. Judge Allows solemnly intoned that the client must have possessed the heroin knowingly to be guilty of the crime, paused, steepled his long fingers, and launched into a ten-minute digression on the nature of knowledge and our tenuous acquisition and/or retention of it. What do we mean when we say we know a thing? Do we actually know things, or only believe things? How is belief different than knowledge? Do we acquire knowledge through rational perception, or is that merely a facade?

The interpreter struggled. My client, listening to her, bore an expression first of surprise then incomprehension then alarm then resignation, as if he was valiantly attempting to follow Judge Allows' discourse before eventually deciding — not entirely inaccurately — that this was part of his punishment. I seethed. Here's this guy, in an unfamiliar country, on one of the worst days of his life, about to be ground up by the amoral and catastrophic War on Drugs, soon to be sent to some hellhole for most of a decade, terrified and confused, and the judge is publicly indulging himself like a monkey at the zoo. I didn't say anything. With federal judges, one doesn't. Lifetime tenure, you know.

I've made that sound farcical, because it was. But here's an unpleasant truth — federal guilty pleas are often farcical.

In state court, a criminal defendant pleading guilty is a brief affair. The deal is rarely in writing. The defense attorney or prosecutor announces very briefly on the record what the deal is, and some of the time someone briefly tells the defendant that they have rights they're giving up by pleading guilty. That's it. I've not seen a state guilty plea last five minutes.

By contrast, a federal guilty plea routinely takes half an hour or more. Rule 11 of the Federal Rules of Criminal Procedure sets forth a list of rights that the judge must explain to the defendant. The judge must also inform the defendant of a variety of issues like the nature (usually the elements) of the charges, the potential sentence, potential collateral consequences, how sentencing works, and so forth. Most judges use a rote script, like this 48-point script from the Eastern District of Michigan. A judge's mannerisms and personality can shorten all of this to around 20 minutes or draw it out to an hour. The purpose — allegedly — is to ensure that all pleas are knowing and voluntary.

But there's a problem – a human problem – with a scripted exchange like this. Over time, with practice, it becomes less like a dialogue and more like a religious ritual, a set of memorized questions and responses as familiar and rote as the Catholic mass of my youth. It's treated as something to be gotten through, not an actual inquiry into the defendant's genuine understanding and informed consent. A defense attorney's job is to make certain the defendant knows his or her rights and understands what's going on, certainly, but a defense attorney's job has also largely become telling the defendant what questions to expect and what answers the judge is looking for. Defense attorneys must explain to their clients that certain responses (like "it didn't actually happen that way" or "I'm doing this because three years is better than the risk of 12" or "no, much like the entire news media, I don't understand the Federal Sentencing Guidelines") — even if sincere — will derail the plea and send the federal judge into a risky fit of pique. An off-script answer is too often not an occasion for careful inquiry, but an opportunity to ask the same question again, increasingly loudly, until the defendant answers right, like giving a cue to a hapless fifth-grader in a school play. It's more reminiscent of a Monty Python sketch than a search for truth. After this charade, the trial court has made it's "record," upon which future courts and Courts of Appeal will rely in determining that the defendant's plea was knowing and voluntary, because look, he or she said so under oath right on the record.

As an example, consider this recent decision by the Ninth Circuit overturning a guilty plea. The defendant was clearly difficult and had issues — quite possibly of her own making — with multiple attorneys. She articulated much better than most defendants do her complaints about her attorneys. This eventually resulted in a discussion in which a magistrate judge — not the one who took her plea — pointed the way she'd have to go to plead guilty, and what she could and couldn't say to make it through a plea:

The Court: No, no, no, you don’t get that, because if you just placed on the record that, you know, you would have to commit perjury, I would love to hear about that. Who asked you to commit perjury?

The Defendant: No. Sorry. I misspoke. I’m sorry. I apologize. What I meant to say is that at the end of the plea, it says that I have to submit and say I have been . . . that “I am satisfied that my defense attorney has represented me in a competent manner,” . . . I don’t want – I’m scared to go to trial because I don’t think that he’s going to, you know, put a fight for me. Your Honor, he didn’t submit any pretrial motions at all.

…..

The Court: . . . This is all I need to know from you, ma’am. You’ve been arraigned on the second superseding indictment. I’ve also informed you of your trial date. Do you wish to go forward with the change of plea hearing? Yes or no.

The Defendant: Do I have to have the clause in there about my attorney? [referring to the part of the plea colloquy where she's asked if she's satisfied with her attorney's representation]

Mr. Vercauteren: Yes. You’re asking me?

The Court: Yes, you do. Who are you asking?

The Defendant: Just – I don’t know.

The Court: Well, you turned to Mr. Vercauteren. That’s part of [Federal Rule of Criminal Procedure] 11, ma’am, because you have to be satisfied with the representation and understand the terms and conditions of your plea agreement. But in terms of satisfied with the representation, it doesn’t mean – There’s – In terms of competent representation, it doesn’t mean that Mr. Countryman has to look at and touch every single aspect of the case. If Mr. Vercauteren reached out to Mr. Countryman and said, okay, count number one and count number ten, which happen to be what we’re seeking your client’s guilty plea on, here’s the discovery information that directly relates to Count 1 and Count 10. If he reviews that, that’s a diligent lawyer who’s doing what he’s supposed to be doing

. . .

The Defendant: Why is it the fact that even if I’m willing to take the plea, that clause about him, about my attorney? Why do I have to submit to the fact that he competently, you know, advised me in the matter?

The Court: Rule 11, there’s certain things that must happen if a person says I wish to plead guilty. As part of Rule 11, you have to believe that your lawyer is competent and has represented you properly.

The Defendant: Your Honor, I don’t believe that, but at the same time I’m scared to go to trial with him because I don’t think that he’s going to do me justice.

The prosecutors extended the guilty plea deadline (an entirely artificial construct at the whim of the prosecutor) by a day, and the defendant entered a guilty plea. The Ninth Circuit ruled — quite reasonably, I think — that the magistrate judge's discussion with her raised serious doubts about whether her waivers of rights in her guilty plea were reliable. "We conclude that there is a substantial risk that Velazquez agreed that she was satisfied with her attorney’s performance because the magistrate judge pressured her to accept the plea and she knew that she had to make that statement to enter the plea." No shit.

I still prefer federal guilty pleas to state guilty pleas, because even a rote ritual is better than nothing. But too often, a federal guilty plea represents a dangerous element of the criminal justice system — the sentiment that if we just go through the motions, justice will result. This is the same sentiment that leads prosecutors to submit warrant applications to federal judges for rubber-stamping and judges to go through the charade of a trial with entirely inadequate defense counsel. It's the sentiment that the form, not the substance, matters. Form's better than nothing. It's what we have. But I decline to pretend that it's enough.

Copyright 2016 by the named Popehat author.