Might OJ Simpson have a Sanders claim?
If you're new here, you may want to subscribe to my RSS feed. Thanks for visiting!
how did I end up back here?
One interesting piece of information in this OJ Simpson brouhaha is the revelation that he may have rejected a plea offer for a sentence as low as 3 years. The first word came from a friend of The Juice and it was later confirmed by his lawyer.
Sanders, in the post title, refers to a CT Superior Court decision: Sanders v. Warden1. Obviously, OJ wouldn’t get the benefit of this particular case, because, as much as Mohegan Sun wants it to be, this is not Vegas. The principle Sanders stands for is borrowed from a 1996 Second Circuit decision: Boria v. Keane.
The essence is this: A lawyer must meaningfully convey a plea offer to the client and must explain the consequences and ramifications of taking the offer and rejecting it.
Plain English: Make absolutely damn sure that your client knows every reason for and against taking the offer. Double check it. Triple check it. Write him a letter and then another. Try talking to him at night. Talk to him in the morning. Leave absolutely no doubt in your mind that the client fully understands the consequences of rejecting an offer.
In both Sanders and Boria, the Courts ordered that the defendant be permitted to accept the previously rejected plea offer because, in both cases, the offers were not meaningfully explained. [All right, so in Boria the Court ordered him released because accepting the prior offer wouldn't have meant squat.]
The Court in Boria explored the underpinnings of this principle:
The decision whether to plead guilty or contest a criminal charge is ordinarily the most important single decision in any criminal case. This decision must ultimately be left to the client’s wishes. Counsel cannot plead a client guilty, or not guilty, against the client’s will. But counsel may and must give the client the benefit of counsel’s professional advice on this crucial decision.
Quoting Anthony G. Amsterdam, in Trial Manual 5 for the Defense of Criminal (1988)§ 201 at 339. Indeed, SCOTUS has said something similar:
Of course, it is not for a lawyer to fabricate defenses, but he does have an affirmative obligation to make suitable inquiry to determine whether valid ones exist. Such a duty is imposed for the salutary reason that ‘prior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered.’
Von Moltke v. Gillies, 332 U.S. 708, 721 (1948). That counsel is you.
This is prudent for several reasons. First, it is your duty to do so. Your primary and only responsibility is to the client and the client’s interests. Explaining thoroughly the consequences of rejecting an offer will reassure you and the client that the decision the client is making is a voluntary, informed one. Let’s be honest, any pre-trial offer will usually be significantly lower than any sentence imposed after trial. Frankly, why would you want it any other way?
This also ensures that your client receives the Constitutionally mandated effective assistance of counsel and doesn’t end up doing something stupid, like going to trial when he had no business to do so, just because you believed your duty was not to tell the client what to do.
You’re correct. It isn’t your job to tell the client what to do. It is your job (and mine) to give the client all the tools the client needs in order to make a very informed decision. Clients sometimes labor under the misimpression that they are innocent or that the State doesn’t have enough to convict them. It is our job to explain the State’s evidence in realistic terms, not idealistic terms:
“Sure, it would be nice if the State could produce Witness F, but they don’t need Witness F.”
“Juries don’t like to see these types of crimes, or someone with your record.”
“The only way to defend this is for you to testify, and frankly my dear, you’ll do that over my lifeless carcass.”
Don’t half-ass it. Explain to the client everything you’d be considering if it was you making that decision.
So what about OJ?
The fallen idol’s pal Thomas Scotto said prosecutors made the offer in the last stages of his trial for armed robbery.
But Scotto added: “OJ and his sister told me the prosecution offered him a deal but he and his lawyers turned it down.”
Scotto said that Simpson had been adamant he would not serve time and made that point clear to his lawyers.
He added: “He may have given it more serious consideration if he’d known what was coming.”
The offers were confirmed by Simpson’s lawyer Yale Galanter.
He said: “There were ongoing discussions throughout the case but nothing came of them.
“If he’d known what was coming” may mean several things. It may mean “in hindsight” or it may mean “if he’d been told how realistic it was that he’d be convicted”. Really, how many of you thought he was walking out of that courtroom without a single conviction?
This is one of the things I’m confident that most of you don’t do. I’m still writing about it because it interests me and because I’ve heard stories. Oh yeah. I’ve heard things.
Some clients have odd notions of justice and what is right and wrong in their case. It is our job to bring them back to Earth.
[Please don't misconstrue this post as advocating coercing the client to plead. That's just dumb.]
1. 2003 Conn. Super. LEXIS 174
Sphere: Related Content
Just a little correction:
You wrote: “In both Sanders and Boria, the Courts ordered that the defendant be permitted to accept the previously rejected plea…
Reading the Boria case, the 2nd Circuit goes on to say:
“This leaves the question of what remedy should result from our ruling. In denying petitioner’s motion to vacate the judgment, the trial judge suggested that the remedy petitioner sought, namely to be put back in a position of being able to plead to the lesser indictment, was procedurally impossible. Whether or not such relief would then have been possible, it would not now be appropriate….we shall order that the sentence be reduced to time served and that the petitioner be discharged, but the judgment of conviction will not be disturbed.”
Thus, defendant Boria was NOT permitted to accept the previously rejected plea; but ordered discharged, with judgment affirmed.
Right, the court goes one step further and orders his release because permitting him to accept the offer would not serve any purpose.
The essence remains the same.
Hmmm… I read this to mean that the superseded indictment on the A-I (more serious) felony sticks; not the initial A-II indictment that defendant Boria was to plead to.
But the record doesn’t specify the exact charges…
Anyways, what I was concerned about is the defendant’s “rap sheet” and it having the more serious charge stick.
That will certainly affect him down the road if he is re-arrested and they see his criminal record for priors…
My question, as a non-lawyer, will that charge count as a prior “conviction”?
I really don’t think OJ would have plead guilty to anything, including probation. He appears to be one of those clients that has convinced himself that he has never done anything illegal and as such, can’t wrap his head around the words “real consequences.”
What a surprise, the 2d Circuit creates some BS law to help a defendant. This whole “I would have accepted a plea deal but my lawyer didn’t tell me” argument is unmitigated BS. Superficially, of course, it sounds good, but it fails any serious analysis. (Of course, it’s not surprising that some 2d Circuit liberals didn’t do the analysis–there are criminals to free and there is always the self-congratulations associated with putting, er, finding something in the Constitution hitherto unknown.)
First of all, in one of these cases, the defendant gets to have his cake (i.e., the plea deal) and eat it to (i.e., the trial). That patent unfairness to the state should be enough to end this silliness, but not with liberal judges around.
What really nukes this argument though is a good understanding of Cronic and what the 6A right to counsel guarantees. The 6A guarantees a fair trial, and, if the defendant gets a fair trial, then there can be no 6A violation for IAC. A matter of simple logic.
One could see it a a counter to the “Harmless Error” doctrine, better described as “You gotta do what you gotta do”.
Could you explain what you mean by a counter to the “harmless error” doctrine?
I am not really clear on the relationship between a lack of information about a plea, and a procedural issue that supposedly had no effect on a trial’s outcome.
“Harmless error” never seems to work to the defendant’s advantage. Instead it seems to be a way to pile all of the bricks on top of him. These precedents might, under the right circumstances, help him to get out from under the biggest part of the ‘pile’.
I do note that two guys who did NOT have guns are punished with 9+ years. Those who DID have guns got probation. Is this really justice? Or revenge? Was Simpson ever offered the same deal to testified against them? Or is it as I suspect?
Funny, all these defense attys, and none of them can contest my showing the 2d Circuit case as utter BS.