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Thomas J. Morgan v. State of Florida

SC06-2350

 

>>> ALL RISE, O YE, O YE, O YE,
THE SUPREME COURT OF FLORIDA
IS NOW IN SESSION.
ALL THOSE
HAVING BUSINESS BEFORE THIS
COURT -- GIVE ATTENTION AND
YE SHALL BE HEARD, GOD SAVE
THE UNITED STATES THE GREAT
STATE OF FLORIDA AND THIS
HONORABLE COURT.
>>> LADIES AND GENTLEMEN,
THE FLORIDA SUPREME COURT.
PLEASE BE SEATED.
>> GOOD MORNING, FRIENDS.
WELCOME TO THE FLORIDA
SUPREME COURT, OUR ORAL
ARGUMENT CALENDAR MONDAY
OCTOBER 8.
THE FIRST CASE
ON CALENDAR THIS MORNING
MORGAN VERSUS STATE OF
FLORIDA.
MR. ROGOW, READY TO PROCEED?
>> MAY IT PLEASE THE COURT.
BRUCE ROGOW FOR
THOMAS MORGAN.
THE THIRD DISTRICT COURT OF APPEAL
HELD THAT A LAWYER, WHO
TELLS A CLIENT, THAT THEY
WOULD -- IN THE CASE
THEREFORE OFFICE SHOULD --
OFFER SHOULD BE REJECTED
WILL CONSTITUTE, CAN
CONSTITUTE INEFFECTIVE
ASSISTANCE OF COUNSEL, THE
FOURTH DISTRICT COURT OF
APPEAL, HAS HELD JUST THE
OPPOSITE, THAT IN THE WORDS
OF -- THE STATE THAT -- IT
IS TOO UNPREDICTABLE, THE
OUTCOME OF A CRIMINAL TRIAL.
WHAT A LAWYER SAYS WITH REGARD
TO ACCEPTING OR REJECTING
A PLEA OFFER DOESN'T RISE
TO A LEVEL OF INEFFECTIVE
ASSISTANCE OF COUNSEL UNDER.
>> ISN'T THAT A LITTLE TOO
SIMPLISTIC, AS FAR AS, THAT
COULD BE A CONFLICT ISSUE, ISN'T
THAT A THING, MY LAWYER TOLD
ME TO GO TO TRIAL, OR --
STRONGLY -- DISCOURAGED ME
FROM TAKING A PLEA OFFER,
AND I WENT TO TRIAL, AND I
WAS UNSUCCESSFUL, SORT OF
THE SAME AS, A LAWYER,
SAYING YOU KNOW, I THINK WE
HAVE A GOOD -- THERE IS NO
PLEA OFFER I THINK WE HAVE A
GOOD CHANCE OF WINNING, AND
THEN THEY LOSE.
DON'T YOU HAVE TO ALLEGING SOMETHING
MORE LIKE THE SECOND DISTRICT
HAS STATED, SUCH AS, THEY --
MADE THAT RECOMMENDATION
WITHOUT HAVING CONDUCTED A
REASONABLE INVESTIGATION ALL
THE DIFFERENT THINGS THAT AT
LEAST THE SECOND DISTRICT
SAID TO BE A BARE ASSERTION
AS YOUR CLIENT ASSERTED
RECOMMEND GOING TO TRIAL,
UNSUCCESSFUL, DOESN'T SEEM TO
STATE A CLAIM OF INEFFECTIVE
ASSISTANCE OF COUNSEL.
>> TWO THINGS, THE SECOND
DISTRICT CASE IS A KIND OF
ADVICE, DID NOT ACCEPT,
PLUS, -- IN THE SITUATION,
BUT, I THINK THAT THIS IS
SUCH A CRITICAL STAGE, WHEN
ONE, IS DECIDING WHETHER OR
NOT TO ACCEPT A PLEA AND
HERE, OF COURSE, WE HAD A
PLEA THAT WAS OFFERED FIVE
YEARS, THE LAWYER SAID.
IN THE -- BASED UPON THAT
REJECTED THE PLEA OFFER GOT
TEN YEARS BOTH THE SECOND
THE 6TH AND THE SECOND, 6TH
AND 8TH HAVE FOUNDED.
>> WHEN THE STATE COMES TO
YOU, WITH A PLEA OFFER, YOU
HAVE TO GO -- TO MAKE AN
IMPORTANT DECISION, THERE
AND YOU CANNOT MAKE THAT
DECISION UNLESS TRIAL
COUNSEL HAS BEEN ABSOLUTELY
CANDID WITH YOU, AND ABA
RULES, WITH REGARD TO THE
DEFENSE FUNCTION MAKE THAT
CLEAR, YOU CANNOT OVERSTATE.
>> WHAT WAS HE NOT -- WHAT WAS
COUNSEL SHE NOW I BELIEVE IN
THIS CASE, NOT CANDID ABOUT?
AND IN THIS PARTICULAR
CASE, YOUR CLIENT HAS MADE
NO ALLEGATIONS OF ANY
MISADVICE EXCEPT OF COURSE
THEY DID NOT WIN, DIDN'T SAY
COUNSEL WAS NOT PREPARED, TO
GIVE THIS ADVICE, NONE OF
THOSE KINDS OF ALLEGATIONS,
AND SO, WHAT -- WHERE IS THE
LITTLE HOOK, HERE, THAT
COUNSEL DID SOMETHING WRONG
OTHER THAN THE MERE FACT THAT
THEY -- HE WANTED TO GO TO
TRIAL, SHE SAID, YOU KNOW WE
CAN WIN THIS OR AT LEAST,
GET IT, DOWN TO A DOMESTIC
VIOLENCE, I BELIEVE IT WAS.
SO WHAT -- WHERE IS THE MISSTEP
HERE?
>> THE MISSTEP IS IN NOT
BEING CANDID NOT SAYING TO
THE CLIENT LOOK WE CAN LOSE
THIS TOO IF WE LOSE THIS YOU
COULD GET 20 YEARS IN
PRISON --
>> SEEMS TO BE SERVING
PRETTY MUCH PER SE RULE -- I
-- IT APPEARS RATHER THAN
ANALYSIS IT IS A PER SE RULE
IF YOU DON'T, IF YOU DON'T
GIVE THE THIS IS WHAT THE
PLEA IS DON'T TAKE IT BUT
THIS IS WHAT COULD HAPPEN,
BUT THAT IS NOT EVEN
ALLEGED, IS IT?
>> NO -- WHAT IS ALLEGED,
SHE TOLD HAVE HIM SHE
THOUGHT SHE WOULD WIN, OR
THAT IT WOULD BE A LESSER --
BUT WHAT I'M SAYING THE
OTHER PART OF THE EQUATION
YOU HAVE TO SAY THAT --
WRONG ABOUT THIS YOU COULD
END UP GOING TO PRISON FOR
TEN YEARS, OR 20 YEARS, AND
THAT IS WHAT TO ME IS THE
CRITICAL FAILURE, ONCE --
>> BUT YOUR CLIENT DOESN'T
SAY THAT HE WAS NOT TOLD
HAPPEN IN THERE COULD BE A
GREATER -- SENTENCE HE, IF
HE IN FACT LOST.
>> -- TRUE TEST, SAID --
THIRD DISTRICT ANALYSIS HE
SAID, AT LEAST TRIGGER -- --
THE ISSUE THAT IS ALL WE ARE
TALKING ABOUT HERE WE ARE
NOT SAYING, THAT --
>> BUT, TO STATE A CLAIM,
FOR INEFFECTIVE ON
DEFICIENT PERFORMANCE
PRONG DON'T YOU HAVE TO
ALLEGING THAT THE COUNSEL
DID NOT GIVE YOU ALL THE
FACTS, DID NOT GIVE YOU, THE
OTHER SIDE OF THE EQUATION,
AND SAY, THIS IS WHAT YOU'RE
LOOKING AT IF YOU LOSE A
TRIAL -- HOWEVER -- I DON'T
THINK WE ARE GOING TO LOSE?
>> I DON'T THINK YOU HAVE TO
ALLEGE THAT -- TO STATE
THE CLAIM, WE TALKING ABOUT
-- FILED IN -- 250 -- --
>> THE FOURTH DISTRICT HAS
READ THE DECISION, AND --
COUNSEL -- THAT IS WHY TURNED
DOWN THE PLEA OFFER, AND,
REALLY I THINK THAT THIS --
>> WHY DOESN'T THERE AT A
MINIMUM HAVE TO BE AN
ALLEGATION THAT THERE IS NO
REASONABLE BASIS FOR
COUNSEL'S ADVICE?
THAT IS, THAT THERE IS NO --
NO REASONABLE BASIS FOR
COUNSEL TO GIVE THAT ADVICE
IT IS ONE THING FOR A LAWYER
TO SAY PROSECUTOR ALREADY
TOLD ME, SINCE WE WON OUR
MOTION TO SUPPRESS -- THAT
THEY DON'T HAVE THE -- YOU
KNOW MAIN EVIDENCE IN THE
CASE, AND, THEY ARE PRETTY
MUCH WINGING IT NOW, AND,
THEREFORE, THERE IS A
REASONABLE BIAS TO SAY WE
WILL PROBABLY WIN, BECAUSE
THE EXPECTATION IS THAT
STATE YOU DIDN'T HAVE ANY
EVIDENCE, AGAINST THE
CLIENT.
YOU KNOW OF COURSE, THERE IS
JUST A VARIETY WHY SHOULDN'T
THERE AT I NEAB HAVE TO BE AN
ALLEGATION THERE IS NO
REASONABLE BASIS FOR
COUNSEL'S ADVICE.
>> -- I GUESS -- RULE --
WOULD BE -- -
>> LET'S JUST STOP AT
REASONABLE BASIS, OKAY?
WHY SHOULDN'T, IS THERE BE AN
OBLIGATION TO ALLEGE THERE
IS NO REASONABLE BASES FOR
COUNSEL TO SAY WE ARE GOING
TO WIN THIS CASE?
>> WELL, I THINK IN --
IMPLICIT IN WHAT -- IS
ALLEGED HERE IS THAT KIND OF
MOTION, I THINK IT IS YOU
ADD THAT, AS ONE OF THE
ELEMENTS -- THERE --
ALLEGATION CAN BE 3.850 --
WITHOUT A FACTUAL -- I DON'T
THINK WE GAIN MUCH -- IN
TERMS OF TRYING TO DEVELOP
AN ISSUE OF WHEN CAN SAY --
MY LAWYER TOLD ME I'M GOING
TO WIN THE CASE I TURNED
DOWN -- A OFFER, AND -- AMD
I WAS -- NO BASIS FOR HIM TO
TELL THAT I AM.
>> BECAUSE HE HAD -- HOW
ABOUT THIS, NO REASONABLE
BASIS BECAUSE HE HAD NEVER
INVESTIGATED --
>> THAT WOULD BE -- THE
SITUATION, THEN THAT IS THAT
IS KIND OF -- THAT
ALLEGATION BECAUSE THE LACK
OF INVESTIGATION -- COUNSEL
EVEN -- WENT TO TRIAL --
>> SO WE IF WE ACCEPT YOUR
ARGUMENT IF HE SIMPLY SAID,
MY ATTORNEY TOLD ME WE HAD A
GOOD CHANCE OF WINNING, AND
WE LOST THE WE HAVE AN
EVIDENCE HEARING WHETHER A
GOOD CHANCE OF WINNING.
>> --
>> [INAUDIBLE]
I DON'T THINK -- I THINK
THAT -- FOR SURE, WE WOULD
-- TALKING ABOUT --
>> WELL IS THAT DOES THAT,
IS THE END RESULT HERE THAT
IF THE LAWYER SAYS THAT WE
WILL WIN, OR WHAT YOU JUST
SAID THE LAWYER WOULD SAY,
DOES THAT MEAN IN COMES OUT
THAT THE LAWYER SAID THAT
THAT -- REGARDLESS OF
ANYTHING ELSE, THAT THE
FELLOW GETS A NEW TRIAL?
>> NOT A NEW TRIAL, TALK
ABOUT -- [INAUDIBLE]
>> BUT I'M TALKING ABOUT
WHAT IS THE END RESULT HERE?
YOU HAVE THE EVIDENTIARY
HEARING WHAT YOU -- AND,
WHAT YOU HAVE ALLEGED IS
PROVEN WHAT IS THE END
RESULT?
>> NEW TRIAL.
>> NEW TRIAL SO IT IS A PER
SE TYPE THING.
>> IT IS IN -- [INAUDIBLE]
TRYING TO -- HAVE SPECIFIC
PERFORMANCE OF A PLEA, BUT I
THINK.
>> WELL LET ME GO BACK TO
THAT POINT, YOU HAVE AGREED
ONLY THING THAT DEFENDANT
WOULD BE ENTITLED TO A NEW
TRIAL THERE WOULD BE NO
BASIS FOR THE STATE TO
OFFER A PLEA THAT HAD ALREADY
BEEN REJECTED.
>> DEPENDS UPON THIS CASE,
HOW IT UNFOLDS, ONE OF THE
-- [INAUDIBLE]
-- BECAUSE OF A NEW TRIAL
OFFERS 20 YEARS OFFERED TWO
YEARS BEFORE -- [INAUDIBLE]
SHOULDN'T HAVE TURNED IT
DOWN, AND THEN, SAY, 20
YEARS, THE QUESTION WAS --
-- GENERATE -- CERTAINLY HE
IS ENTITLED TO A NEW TRIAL,
AT THAT POINTP.
>> WHAT HE GOT HERE, WAS
REQUIRED BY THE CONSTITUTION
WAS A FAIR TRIAL, THERE IS
NO QUESTION HERE ABOUT THE
FAIRNESS OF THE TRIAL OR
EFFECTIVENESS OF COUNSEL AT
TRIAL, YOU AGREE WITH THAT;
CORRECT?
>> CORRECT.
>> WHAT DO YOU SEE AS BEING
-- I'M ACTUALLY INTERESTED
IN THE REMEDY PART, LET ME
GO BACK TO FOLLOW-UP WITH
JUSTICE BELL ASKED YOU NOW
YOU GET YOUR EVIDENTIARY
HEARING, WHAT IS IT THAT YOU
HAVE TO PROVE NOW WE ARE
GETTING INTO -- FACTS, WHAT
-- YOU ASKED THE LAWYER, WHY
DID YOU TELL MY CLIENT THAT
-- HE HAD A VERY GOOD CHANCE
OF OF WINNING AT TRIAL?
AND HE SAYS WELL DID MY
INVESTIGATION, AND MY
INVESTIGATION REVEALED THERE
WERE NO WITNESSES, BUT, EYE
WITNESSES TO THE CRIME AND
YOU SAY DIDN'T YOU REALIZE
THERE WAS WITNESS SO AND
SO?
>> WELL THAT WITNESS ONLY CAME
UP, YOU KNOW AFTER THE PLEA
-- YOU KNOW, WE HAD A
RICHARDSON HEARING, AT WHAT
POINT IN OTHER WORDS, WHAT
IS IT THAT IF THE TRIAL
JUDGE FINDS THAT YES, THE --
THE LAWYER HAD A TO GIVE A
PRETTY GOOD ASSURANCE THAT
THEY COULD WIN THE LAWYER,
THOUGH, HAD GIVEN THAT
ASSESSMENT BASED ON A
REASONABLE INVESTIGATION,
THE ADVICE WAS REASONABLE
UNDER THE CIRCUMSTANCES,
THEN, DOES YOUR CLIENT STILL
WIN BECAUSE NO WON OUGHT TO
GIVE A GUARANTEE OF SUCCESS,
AT -- IN A CRIMINAL CASE?
>> I BELIEVE THAT -- THIS
CASE -- I THINK THAT --
REMEDY -- THIS -- TO THE
CLIENT, HERE IS -- THE
STATEMENT, I WILL TAKE CARE
OF THE ISSUE, SO WHEN YOUR
ADVICE PLEA OFFER, THAT THEY
REJECTINGED -- HERE IS -- TO
BE, IN YOUR --
>> -- [INAUDIBLE]
.
>> ALL RIGHT, SO WHAT YOU
ARE SAYING, THOUGH NOW THIS
IS -- SEE IF YOU HAD SAID
THAT THEY DIDN'T THEY SHOULD
SAID THEY COULD WIN BUT
THEY DIDN'T GIVE THE OTHER
SIDE OF THE EQUATION, THAT
IS TO ME NOW A DIFFERENT
CASE.
BECAUSE NOT TELLING THE
CLIENT OKAY, BUT IF YOU LOSE
YOU COULD FACE 100 YEARS, SO
-- BUT I DIDN'T SEE THAT AS
BEING THE FOCUS OF THE
CONFLICT ISSUE, OR WHAT HAS
BEEN ALLEGED.
>> HE DID NOT ALLEGE THAT.
>> SHOULD THAT BE PART OF
THE IT THAT IS, THAT IF YOU
ALLEGE IF YOU DON'T --
ADVISE YOUR CLIENT, ON ALSO
THE SENTENCE CONSEQUENCES,
THEN YOU ARE STARTING TO
TALK ABOUT THE DEFECTIVE
UNREASONABLE ADVICE, SIMILAR
TO A MISADVICE CASE?
>> I THINK -- [INAUDIBLE]
A PERFECT -- IN THIS WOULD
HAVE HAVE BOTH SIDES OF THE
EQUATION, I WOULD ASSURED
THAT I WAS -- AND I WAS NOT
TOLD WHAT THE CONSEQUENCES
WOULD BE --
>> BUT THAT IS NOT THE A
THAT IS NOT THE CONFLICT
ISSUE THE CONFLICT ISSUE YOU
WERE I THOUGHT ASKING FOR
PER SE THAT IF THERE IS
ASSUANCE OF WINNING A
TRIAL, YOU -- ARE ENTITLED
TO EVIDENTIARY HEARING NOW
IF YOU ARE SAYING ASSURANCE
OF WINNING, BUT NO -- ADVICE
ON THE CONSEQUENCES OF
LOSING, NOW TO ME YOU HAVE A
DIFFERENT, PERHAPS, A
DIFFERENT CLAIM.
>> I THINK IT IS A STRONGER
KIND OF PICTURE OF
INEFFECTIVE ASSISTANCE OF
COUNSEL BUT BETWEEN GOMEZ
AND GONZALEZ THE TWO CASES
HERE THAT ARE IN CONFLICT,
THE -- BASED UPON THE GOMEZ
SAYS SAYING IF YOU PROMISE
YOU WIN TURNS OUT PLEA AUFR
YOU GET MORE TIME YOU HAVE
GOT A 6TH AMENDMENT -- AT
LEAST FOR PRIORS.
>> DOES THIS OPEN UP THE
CONVERSE CLAIM AS WELL?
THAT IS, IF -- COUNSEL SAYS
THIS IS THE PLEA OFFER, I
THINK WE SHOULD TAKE IT,
THERE IS NO WAY YOU ARE
GOING TO WIN AT TRIAL, YOU
ARE CLEARLY GUILT, GUILTY
DEFENSE COMES BACK LATER
SAID I PLED GUILTY WOULD I
HAVE BEEN FOUND INNOCENT AT
TRIAL THIS WAS INEFFECTIVE
ASSISTANCE OF COUNSEL FOR
SAYING THAT I SHOULD SAKE
THIS PLEA?
>> -- WELL,THINK THAT IS
MUCH HARDER IN PLEA COLLOQUY
EVERYTHING THE COURT WOULD
BE ASKING THE DEFENDANT IN
OPEN WOURT WHETHER OR NOT HE
OR SHE UNDERSTANDS THEIR
RIGHT TO A TRIAL, RIGHT TO A
JURY TRIAL ET CETERA, ET
CETERA.
SO I THINK THAT WOULD CHANGE
THE WAY THAT IS -- OUT
THERE, BECAUSE IF YOU --
KNOWING INTELLIGENT WAIVER.
>> THE WAIVER WAS BASED ON
THE -- THE ADVICE OF
COUNSEL, THAT YOU THERE IS
NO WAY THAT YOU COULD BE
EXONERATED YOU ARE GOING TO BE
FOUND GUILTY HIS ALLEGATION I
HAD AN ALIBI WITNESS I
WASN'T THERE PURELY
CIRCUMSTANTIAL.
>> JUDGE -- LOTS OF OF
PEOPLE PLEAD GUILTY THINK
THEY ARE INNOCENT KNOWING
INTELLIGENT PLEA -- INQUIRY.
>> LET ME FOLLOW -- FOLLOW
UP ON JUSTICE PARIENTE'S
QUESTION AS I UNDERSTAND
YOUR ARGUMENT, THE YOU SAY
THAT THERE IS AN ENTITLEMENT
TO EVIDENTIARY HEARING WHERE
THERE IS AN ASSUANCE OF
WINNING, SHE ASKED YOU, IS
THERE -- IS THAT DIFFERENT
THAN THERE BEING A
ALLEGATION THAT THERE IS A
REASONABLE CHANCE OF
WINNING, I MEAN ARE WE
DEALING HERE IN THAT TYPE OF
SEMANTIC DIFFERENCE?
>> YOU KNOW, IT -- THIS
WHOLE AREA JUSTICE WELLS --
STRICKLAND, IT IS WHETHER OR
NOT A REASONABLY OBJECTIVE
LAWYER WOULD HAVE GIVEN THIS
ADVICE I'M NOT SURE WE CAN
STATE THAT, THERE ARE SOME
SEMANTICS INVOLVED HERE BUT
THE BOTTOM LINE AND THE
FOURTH DISTRICT AND THIRD
DISTRICT HAS STATED -- THAT
THERE IF YOU ARE TOLD THAT
YOU WILL WIN THE CASE, AND
THAT IS WHY YOU TURNED DOWN
THE PLEA AGREEMENT AND YOU
END UP IN A MUCH GREATER
SENTENCED, YOU AT LEAST
STATED THE CLAIM, THAT IS
ALL WE ARE TALKING ABOUT --
THE HEARING --
>> GETTING PAST SEMANTICS
THOUGH ISN'T IT ALWAYS
IMPLIED WHETHER A LAWYER
SAYS WE WILL WIN AT WHILE OR
WE SHOULD WIN OR I GUARANTEE
WE WILL WIN, OR POSSIBLE WE
WILL WIN, YOU HAVE A GREAT
CHANCE OF WINNING WHATEVER
THE DEFENDANT HAS TO KNOW
THAT THIS IS JUST AN
OPINION.
THAT THERE IS NOT STATEMENT
OF FACT.
THAT THE COUNSEL MAY BELIEVE
THAT THEY ARE WIN AT TRIAL
BUT THAT THERE ARE NO
GUARANTEES WHEN YOU GO TO
TRIAL IT WILL IS GOING BE UP
TO THE JURY BASED ON ALL THE
EVIDENCE.
>> AND THAT IS WHY IT IS SO
MUCH BETTER APPROACH TO HAVE
IT LAID OUT TO THE CLIENT,
SO THAT THE CLIENT CAN SEE
IT IN BLACK AND WHITE AT THE
ASSESSMENT -- AT THE ADVANTAGESS
OF GOING TO
TRIAL AREN'T PLEA OFFERS
MADE SOMETIMES EVEN ON THE
EVE OF TRIAL, AND, YOU GO
BACK, AND YOU DISCUSS, THIS
WITH YOUR CLIENT, YOU MAKE
WHATEVER, YOU GIVE THE
CLIENT WHATEVER INFORMATION
YOU GIVE THEM, AND THEY SORT
OF MAKE THESE DETERMINATIONS
ON SPUR OF THE MOMENT I
DON'T THINK WE CAN JUST MAKE
THAT KIND OF RULE, TO COVER
THESE KIND OF SITUATIONS,
CAN WE?
>> --
>> EVEN HANDWRITTEN NOTICE I
UNDERSTAND THE PLEA IS I'M
REJECTING IT, I UNDERSTAND
WHAT THESE CONSEQUENCES --
>> YOUR -- YOUR REMEDY I
APPRECIATE IT, MR. ROGOW
THAT IS A BROADER ONE WHICH
IS THAT WE ALWAYS LOOK TO
MAKE SURE WHATEVER A CLIENT
DOES OR DEFENDANT HAS DONE
INTELLIGENTLY, YOU MENTIONED --
I THOUGHT FAR
GREATER HARM IN CRIMINAL
JUSTICE SYSTEM IS A LOT OF
LAWYERS PUSHING CLIENTS TO
TAKE A PLEA, WHEN YOU KNOW,
MAYBE THEY HAVE A CHANCE AT
SUCCESS THAT IS THE INNOCENT
PERSON WHO PLEADS GUILTY,
BUT WE ARE REALLY YOU ARE
TALKING ABOUT A PROCESS YOU
WERE HERE FOR A RULE CHANGE,
SAID WE SHOULD HAVE THESE I
WRITING, BUT FILE LIKE WHAT
WE ARE TRYING TO DO HERE IS
LOOK AT WHEN THIS -- THERE
IS ENOUGH HERE, THAT ALLEGES
THAT THIS LAWYER WAS NOT
PERFORMANCING AS A
REASONABLY CONFIDENT LAWYER
WOULD DO THAT IS WHERE WE
GET INTO THIS -- OF BEING I
THINK UNCOMFORTABLE WITH IS
WE DON'T KNOW WHAT THE YOU
KNOW THE FOUR ELEMENTS OF
SUCCESS AT TRIAL NOT
ADVISING OF THE OTHER SIDE
OF THE EQUATION AND
SOMETHING ELSE AND YOU ARE
SAYING NO, IT JUST HAS TO BE
THE ONE, WHICH IS ADVISING
YOU HAVE A GOOD CHANCE OF
SUCCESS AT TRIAL, OR --
AGAIN, A WIN AT TRIAL, AND
THAT IS GOING TO GIVE YOU AN
EVIDENTIARY HEARING.
>> WELL, I THINK THAT --
THAT -- THE RULE THAT I'M
ADVOCAING I DON'T MEAN RULE
IN TERMS OF GETTING THE
THING IN WRITING,I UNDERSTAND
THAT COULD BE SOME OTHER KIND OF
PROCESS TO GET THERE BUT I'M
SAYING THAT IF A LAWYER
TELLS SOMEBODY WE WILL WIN
THE CASE, TURN DOWN THE PLEA
OFFER, I THINK THAT IS
ENOUGH TO SHOW THAT IT IS
INEFFECTIVE ASSISTANCE OF
COUNSEL THAT IS BAD ADVICE
WE WILL WIN THE CASE.
YOU CANNOT SAY WE WILL WIN
THE CASE.
THAT TO ME, IS -- JUST
COMPLETELY I THINK A LACK OF
CANDOR, ABOUT THE WHOLE
TRIAL PROCESS.
>> WHAT IF THEY SAY, WE HAVE
A SUBSTANTIAL LIKELIHOOD OF
WINNING THE CASE IS THAT
LEGALLY DIFFERENT THEN?
>> IT IS LEGALLY
DIFFERENT --
>> DOESN'T WE WILL WIN THE
CASE -- REALLY MEAN WE HAVE A
SUBSTANTIAL LIKELIHOOD OF
WINNING BECAUSE THE DEFENDANT
KNOWS THAT THE COUNSEL
CANNOT GUARANTEE, A VICTORY
THAT IT IS NOT A STATEMENT
OF FACT, ABOUT WHAT OCCURRED
IN THE PAST THAT IT IS
PREDICTION WHAT MAY OCCUR IN
THE FUTURE AND THAT THOSE
ARE NECESSARILY NOT
COMPLETELY ACCURATE?
>> BUT THAT A DEFENDANT IS
IN THE HANDS OF HIS OR HER
LAWYER, GENERAL, THE
DEFENDANTS ARE NOT AS
SOPHISTICATED AS A LAWYER
WILL BE IN TERMS OF THE
EXPERIENCE, IT IS KIND OF A
LIKE GOING TO THE DOCTOR THE
DOCTOR SAYS, HERE ARE TWO
CHOICES THAT YOU HAVE, FOR
TREATMENT -- AND, THERE IS
TREATMENT A, TREATMENT B.
AND DOES THE DOCTOR SAY YOU
CHOOSE WELL MAYBE THE DOCTOR
DOES BUT WOULD I SAY THE
DOCTOR YOU TELL ME YOU
HAVE --
>> LET'S NOT GET INTO ABSTRACT
THIS GUY WAS HAS
HABITUALIZED, HE HAD
EXPERIENCE.
>> WE ARE TALKING ABOUT A
CASE THAT WILL AFFECT
OBVIOUSLY MORE THAN HIM.
>> WITH OUR ASSISTANCE YOU
HAVE EXHAUSTED NOT ONLY
ARGUMENT TIME BUT ALSO ALL
REBUTTAL TIME, THANK YOU
VERY MUCH FOR THE ARGUMENTS.
MR. HAMEL.
>> MAY IT PLEASE THE COURT
MARK HAMEL FOR THE STATE OF
FLORIDA IN THIS CASE, IT WAS
NOT EVEN A PLEA OFFER
EXTENDED, PAGES 158 THROUGH
160 OF THE RECORD, SHOW THAT
THERE WAS A DISCUSSION,
AFTER THE JURY HAD BEEN
SELECTED, AND DEFENSE
ATTORNEY SAID YOUR HONOR, NO
PLEAS NO OFFER HAS BEEN MADE
IN THIS CASE, AND THEN THE
STATE ATTORNEY SAID, WELL,
THE BEST -- WOULD IT HAVE TO
BE LEAST FIVE YEARS BUT
WOULD HAVE TO CHECK WITH TWO
VICTIMS IN THIS CASE, AND
THE DEFENSE ATTORNEY SAID WE
ARE NOT INTERESTED IN
THAT -- AND --
>> EVEN THE PROBLEM IS --
WE'VE GOT A -- A COURT
THATTER SO CERTIFIED
CONFLICT WITH THE THIRD
DISTRICT IF THEY SAID THIS
CLAIM FAILED THERE WASN'T
PLEA OFFER ACCEPTED WE
WOULDN'T BE HERE, IT SEEMS
WOULD YOU AGREE THAT ON THE
BROADER ISSUE, THAT THERE
APPEARS TO BE, THE FOURTH
DISTRICT SAYING A CLAIM
ADVISING AGAINST TAKING A
PLEA FOR WHATEVER REASON,
YOU KNOW, IS CAN'T BE A
CLAIM OF INEFFECTIVE
ASSISTANCE OF COUNSEL AND SO
WE'VE GOT PER SE RULE THERE
OR DO YOU SEE THAT THERE
ISN'T A CONFLICT THAT THERE
ACTUALLY LOOKING AT
DIFFERENT KINDS OF CASES?
>> THEY ARE LOOKING AT
DIFFERENT KIDS OF CASES YOUR
HONOR DO I AGREE IF YOU LOOK
AT LANGUAGE OF THE OPINION
OF THE FOURTH THERE ABEARS
TO BE CONFLICT BUT IF YOU
LOOK FURTHER IN THIS COURT
SHOULD, IN THIS CASE, THERE
WAS NEVER A A FIRM OFFER --
OF.
>> IT SAYS WE CERTIFY
CONFLICT -- CERTIFY, MORGAN
ALLEGES COUNCIL ASSURED HIM
AT TRIAL ASSURED HIM, A WIN
AT TRIAL, THIS COURT
AFFIRMED THE SUMMARY
IN GONZALEZ SO ISN'T THERE
WHATEVER WE RESOLVED IN THIS
CASE I MEAN WOULD IT BE, YOU
KNOW IF WE SAY WELL THAT
ASSURANCE, UNDER CERTAIN
CIRCUMSTANCES CAN CONSTITUTE
AT LEAST ENOUGH, FOR
EVIDENTIARY HEARING SOUNDS
LIKE WOULD YOU WIN IN
EVIDENTIARY HEARING BECAUSE
OF WHAT YOU JUST SAID, THERE
WASN'T EVEN A PLEA OFFER WE
OFTEN GET THIS,
UNFORTUNATELY I GUESS
MR. GOMEZ OR MR. MORING ON
AN WAS PRO SE, BELOW, SO, IS
THERE OR ISN'T THERE NOT --
NOT -- IN THIS CASE -- BUT
IS THERE A CONFLICT BETWEEN
THE THIRD AND THE FOURTH AND
THE SECOND, AND THE FIRST?
ON THIS ISSUE?
>> THERE -- THERE IS A
CONFLICT BETWEEN FOURTH AND
THIRD APPROACH.
>> THE QUESTION DO YOU SEE
EITHER MAYBE BEING TOO
EXTREME, AS TO THEIR
APPROACHES?
WHICH IS THAT WHAT IF THE --
IF THE CLAIM HERE WAS HE
ASSURED SHE ASSURED A WIN,
WITHOUT A REASONABLE
INVESTIGATION, AND DID NOT
EXPLAIN THE CONSEQUENCES OF
WHAT HE WOULD FACE IF HE
LOST WOULD THAT BE ENOUGH,
TO -- WARRANT AN EVIDENTIARY
HEARING.
>> YOUR HONOR CERTAINLY
WOULD BE IN THE FOURTH
DISTRICT THE FOURTH DISTRICT
REALLY IS NOT INCONSISTENT WITH
SECOND.
>> YOU ARE SAYING ENOUGH FOR
EVIDENTIARY HEARING THERE
HAS TO BE ALLEGATION OF
DEFICIENCYN IF A MATTER OF
MERE ADVICE NOTHING MORE
THAT IS --
>> -- WOULD IT BE ENOUGH TO
SAY, THAT THEY DIDN'T
EXPLAIN THE CONSEQUENCES OF
IF YOU LOST AT TRIAL, AND IS
THAT WOULD THAT A BE ENOUGH
IN OTHER WORDS MR. ROGOW
SAID OTHER SIDE OF EQUATION
WOULD THAT BE INCOMPETENT
FOR SOMEONE TO TELL SOMEONE
THEY ARE GOING TO WIN AND
NOT EXPLAIN, EVEN THOUGH IT
IS PREDICTION BUT, ISSUE
THAT YOU ARE GOING TO WIN
BUT -- IF YOU LOSE EVEN I
THINK IT IS A YOU KNOW NOT
LIKELY -- YOU KNOW, YOU WILL
FACE, SENTENCE OF FOUR TIMES
THE AMOUNT THAT IS BEING
OFFERED?
>> YOUR HONOR ANY TIME I
THINK THAT THERE IS A DEFICIENCY
ALLEGED -- COULD
ORDER EVIDENTIARY HEARING
DEPENDING UPON THE FACTS.
>> WOULD THAT BE DEFICIENCY
THAT IS THE QUESTION, WOULD
FAILING TO ADVISE OF THE
CONSEQUENCES, SHOULD THE
JURY COME BACK WITH A
VERDICT OF GUILTY?
>> -- ARE VERIED OF GUILTY
THIS IS WHAT WOULD YOU BE
FACING IN PRISON WITH
FAILURE TO ADVICE OF THAT,
THE DEFICIENT PERFORMANCE?
>> I THINK, YOUR HONOR WOULD
IT DEPEND WHAT OTHER ADVICE
WAS GIVEN, CERTAINLY SOUNDS
LIKE SOMETHING IS THAT WOULD
BE A REASONABLE ATTORNEY
WOULD TALK TO A CLIENT
ABOUT, BUT.
>> SEEMS TO ME TO ME, THAT
-- THE VERY -- I MEAN IF YOU
IF YOUR ATTORNEY DOESN'T
ADVISE YOU WHAT HAPPENS IF
YOU LOSE AT TRIAL THAT IS
LIKE NOT HAVING AN ATTORNEY.
>> CORRECT YOUR HON BUT
THERE MAY BE A SITUATION THE
CLIENT SAYS I'M INNOCENT WANT
A TRIAL DON'T WANT TO HEAR
ABOUT PLEA AGREEMENT, THAT
MIGHT BE REASONABLE UNDER
THOSE CIRCUMSTANCES, SO, I
THINK EVERY CASE, IS KIND OF
DIFFERENT YOU HAVE TO TAKE A
LOOK AT IT, AND SEE -- IS
THERE SOMETHING ALLEGED,
THAT WOULD -- AMOUNT TO
DEFICIENT PERFORMANCE UNDER
THESE CIRCUMSTANCES I THINK
INDIVIDUAL DETERMINATION
EACH CASE HERE WE DON'T HAVE
ANY -- WE DON'T HAVE A PLEA
OFFER BUT WE ALSO DON'T HAVE
ANY ALLEGATION OF A
DEFICIENCY OF PERFORMANCE.
>> IF HE ALLEGES UNDER
OATH THAT AND HE WAS PRO SE
AGAIN AS THE FIRST START TO
ALLEGING THAT THERE WAS A
BONA FIDE PLEA OFFER;
CORRECT?
>> HE DID YOUR HONOR IN THE
MOTION.
>> WHAT YOU ARE SAYING THIS
COULD HAVE BEEN SUMMARILY
DENIED JUST ON THE FACT THAT
IT IS THAT CONCLUSIVELY REFUTED BY
THE RECORD.
>> CORRECT YOUR HONOR.
>> WHO WOULD THE RECORD
REFUTE NEGATIVE LIKE THAT?
THAT -- THE RECORD
WOULDN'T SHOW WHEN A PLEA
WAS OFFERED OR NOT.
>> IN THIS CASE, IT WOULD
THERE WAS A DISCUSSION ON
THE RECORD THE DEFENSE
ATTORNEY SAID NO OFFER HAS
BEEN -- BEEN MADE, AND THE
STATE ATTORNEY TALKED ABOUT
FIVE YEARS, BUT NEEDING TO
GET PERMISSION FROM THE
VICTIMS, AND THEN, HE SAID
I'M NOT INTERESTED AND THE
JUDGE SAID THE OFFER HAS
BEEN REJECTED THE STATE
SAID WAIT, WAIT A SECOND
THERE WAS NEVER -- NEVER
FIRM OFFER NEVER FIRM OFFER
IT KIND OF GOES AROUND AT
LEAST TO REMEDY IN THIS CASE
IF WE ARE TALKING ABOUT ANY
KIND OF A REMEDY, ABOUT
SPECIFIC PERFORMANCES --
>> RESULT, THOSE KINDS OF
DISPUTES WOULD AN -- WITH
EVIDENTIARY HEARING DO WE
NOT --
>> YOU ARE ARGUEING
WHETHER OR NOT THERE WAS --
ARGUING WHETHER OR NOT THERE
WAS A FIRM OFFER A, AND NOW
WE LOOK AT SORT OF AN
AMBIGUOUS RECORD, AS FAR AS
WHAT THE LET ME COME BACK
YOU ARE FAMILIAR WITH JUDGE
KOPP'S OPINION IN SHARP ARE
YOU NOT.
>> YES YOUR HONOR.
>> DO YOU HAVE ANY
DISAGREEMENT WITH THAT
OPINION GRANT THERE HAD WAS
EVIDENTIARY HEARING THERE
BASED ON THE TESTIMONY AT
THE EVIDENTIARY HEARING, IT
ENDED UP, RELIEF WAS DENIED,
BUT HE STATES IN THAT
OPINION THAT AT LEAST HIS
EVALUATION OR THE THIRD
DISTRICT EVALUATION, OF WHAT
THE FOURTH DISTRICT IS
SAYING, IS THAT THIS IS JUST
SOMETHING OFF LIMITS, THAT
YOU CAN NEVER STATE A PROPER
CLAIM WITH REFERENCE TO THE
ADEQUACY OF ADVICE ABOUT
PLEA OFFERS WHEN HE IS
TALKING ABOUT THE FOURTH
DISTRICT, DO YOU AGREE WITH
HIS DISCUSSION THERE?
>> NO, NO YOUR HONOR --
>> YOU DON'T AGREE -- WHAT
PART OF THAT OPINION DON'T
YOU AGREE WITH I DON'T AGREE
YOUR HONOR BECAUSE HE IS
REALLY MISUNDERSTANDING THE
FOURTH DISTRICT'S POSITION,
THE FOURTH CERTAINLY DOES
ORDER EVIDENTIARY HEARINGS
WHEN THERE ARE ALLEGATIONS
OF DEFICIENT PERFORMANCE IN
CONNECTION WITH PLEA OF OUR
RECENTLY THERE WAS A CASE --
>> YOU AGREE THIS IS NOT
SOMETHING THAT IS -- OFF
LIMITS FROM A STRICKLAND
ANALYSIS.
>> NO YOUR HONOR.
>> JUST GOING TO DEPEND, ON
THE CIRCUMSTANCES, AND IF
COUNSEL UNREASONABLY,
ASSESSES, THE CASE, AND
URGES HIM NOT TO TAKE PLEA
OFFER UNDER WHATEVER
PREVAILING STANDARDS ARE IT
COULD BE SUBJECT TO A
STRICKLAND CLAIM.
>> CORRECT YOUR HONOR I
THINK I CAN CLEAR THIS UP
WITH WHAT FOURTH POSITION IS
FOURTH HAD A DECISION --
DECISION OUT THREE MONTHS
AGO THE DECISION IS -- 32
FLORIDA LAW WEEKLY 1643,
THEY MADE A DISTINCTION
BETWEEN --
>> THAT CITED BACK AND TO
RTH.
>> NO I APOLOGIZE YOUR HONOR
HAS NOT.
>> PLEASE DON'T REFER TO
CASES THAT YOU HAVE NOT
BROUGHT TO THE COURT'S
ATTENTION --
>> SUPPLEMENTAL AUTHORITY.
>> I WILL, YOUR HONOR.
>> ARTICLE ARGUMENT SO WE
CAN GET THE BENEFIT OF THAT.
>> I WILL WILL YOUR HONOR
THE POINT I'M TRYING TO MAKE
THE FOURTH DOES MAKE A
DISTINCTION BETWEEN PROMISES
OF A CERTAIN OUTCOME, VERSUS
PREDICTIONS OF RESULTS.
PP AND THAT IS SOMETHING
THAT --
>> WHAT DISTINCTION IS THAT?
>> WELL WHAT THE --
>> MADE -- IN THOSE -- THE
SOUNDS LIKE THE SAME THING
TO ME.
>> WELL, BECAUSE, OI
OUTCOMES OF TRIALS ARE
UNPREDICTABLE, COUNSEL
SHOULD NOT BE PROMISING
RESULTS OF TRIAL.
PROMISING WINS.
>> THAT IS EXACTLY WHAT
MR. -- IS SAYING YOU ARE
SAYING HIS ARGUMENT RIGHT
NOW.
>> IN THIS CASE THERE WAS NO
PROMISE TALKING ABOUT AN
ATTORNEY SAYING I FELT LIKE,
I COULD WIN THE CASE.
>> THE ALLEGATION, IN THE
WE'VE GOT WRITTEN OPINION
THAT SAYS, SHE ASSURED HIM
WOULD HE WIN AT TRIAL.
BUT THE --
>> RIGHT.
>> CORRECT YOUR HONOR.
>> OKAY, IS THAT A -- ISN'T
THAT A PROMISE OF AN
OUTCOME.
>> IT IS NOT YOUR HONOR
ASSURANCE IS EITHER
PROMISING SAYING SOMETHING
CONFIDENTLY OR CAN ALSO BE A
GUARANTEE,THE WORD ASSURE IS
NOT THE MOST PRECISE WORD.
>> AGAIN WE DO HAVE -- THIS
MR. MORGAN IS PRO SE WE ARE
TRYING TO GET AT A, IS THERE
YOU KNOW BECAUSE ALL WE WILL
DO IF WE SAY THEY HAVE TO
SAY THIS, THE NEXT 20
MOTIONS THAT ARE FILED WILL
SAY THAT, JUST LIKE
MR. ROGOW IS SAYING WE KNOW
THAT, AND -- THEY GET
EVIDENTIARY HEARING WHAT I'M
TRYING TO DO IS -- I HOPE WE
ARE TRYING TO DO HERE IS
REALLY DECIDE WHAT WOULD IT
BE THAT WE YOU KNOW IF THERE
WAS AN EVIDENTIARY HEARING
AS WE GET THE PRISONER TO
SAY, YOU KNOW SPECIAL ROGS,
HAS TO BE, SPECIFIC PLEA
OFFER BEFORE THERE CAN
BEJECTION I THINK YOU KNOW
THAT IS -- A GIVEN, THEN
THERE HAS TO BE, A -- SOME
ASSUANCE OF WHAT THE
OUTCOME IS GOING TO BE
WHETHER CALL IT PROBABLY
GOING TO WIN YOU ARE GOING
TO WIN, BUT, BASED ON IT WAS
AN UNREASONABLE PREDICTION,
BECAUSE OF SOMETHING.
BECAUSE THEY HADN'T DONE,
INVESTIGATION THEY DIDN'T
KNOW ABOUT KEY WITNESSED
HADN'T DEPOSED EYEWITNESS
WHATEVER IT MIGHT BE, AND
THEN, AND THEY DIDN'T TELL
THEM THAT THEY WERE GOING TO
THAT IF THEY DIDN'T IF THEY
WENT TO IF THEY LOST THEY
WOULD HAVE THIS SENTENCE.
SO THAT MIGHT BE THREE
COMPONENTS, IS THAT ISN'T
THAT BETTER TO -- TO SORT OF
FERRET IT OUT THAT WAY THAN
SAY YOU HAVE DEBATE TO USE
MAGIC WORDS -- ASSURANCE
GUARANTEE, HUNDRED PERCENT
CHANCE, I MEAN, BECAUSE --
WE WILL GET TO THE
EVIDENTIARY HEARING THEN
THAT WON'T BE THE CASE DON'T
WE WANT -- SOMETHING MORE
SPECIFIC THAN JUST MAGIC
WORD?
>> SURE YOUR HONOR THIS
CLIENT WAS NOT PRO SE, THIS
BRIEF WAS PREPARED BY AN
ATTORNEY.
>> WELL IT SAID IN THE IT
SAYS PRO SE ON THE I GUESS
IN THE FOURTH DISTRICT
OPINION.
>> IT WAS BUT IN HIS FILING
WITH THE TRIAL COURT, HE WAS
REPRESENTED BY A PRIVATE
ATTORNEY, AND HE
SPECIFICALLY SETS OUT
LANGUAGE THAT HIS ATTORNEY
USED WHEN HE GAVE THE ADVICE
IN THIS CASE.
>> WHICH WAS?
>> WHICH WAS SHE FELT SHE
WOULD WIN A TRIAL THAT AT
WORSE THE CHARGES SHOULD BE
DOMESTIC VIOLENCE, IF THAT.
SO WE ARE NOT TALKING ABOUT
A GUARANTEE IN THIS CASE.
IF A GUARANTEE COULD AMOUNT
TO DEFICIENT PERFORMANCES
THAT IS NOT EVEN THIS CASE
THAT COULD BE ANOTHER CASE
THE FOURTH MAY, MIGHT HAVE
REVERSED IT, IF THAT WAS THE
CASE BUT, HERE WE DON'T HAVE
THAT, HERE WE DON'T EVEN
HAVE AN OFFER, AND WE
CERTAINLY DON'T HAVE A
PROMISE THAT WAS FROM --
THEIR MOTION, THEY DID A
SPECIFIC SECTION ON
DEFICIENT PERFORMANCE SET
OUT WORD SPECIFICALLY WE USE
IN THIS CASE YOUR HONOR
WORDS ARE IMPORTANT I DON'T
KNOW HOW WE GET AWAY FROM
WHAT THE WORDS WERE IF, IF
EVERY CLIENT, PAYS
ATTENTION, AND KNOWS WHAT TO
ALLEGE, WOULD I SAY THEY DO
THAT ANYWAY THEY KNOW WHAT
THEY NEED, HAVE TO DO TO
GET AN EVIDENTIARY HEARING,
BUT THE REALLY THE FACTS OF
THIS CASE, DEFINITELY DON'T
WARRANT AN EVIDENTIARY
HEARING.
>> DO YOU AGREE, WITH THE
SECOND DISTRICT ENUNCIATION
OF A STRICKLAND CLAIM UNDER
THESE ARE CIRCUMSTANCES IN
DE --
>> YES YOUR HONOR SO IF THAT
WAS THAT YOU HAVE GOT TO BE
AN ALLEGATION, SOME
DEFICIENCY -- ADVISE THE
CLIENT TO REJECT THE PLEA
WITHOUT PREPARING OR KNOWING
THE OPERATIVE FACTS OF THE
CASE OR COUNSEL NEGLECT TO
DO IDENTIFY THE MATERIAL
LEGAL ISSUES, OR, OTHERWISE
DID NOT FULLY PERFORM, AS A
LAWYER?
>> CORRECT YOUR HONOR.
>> ALL RIGHT, SO WOULD IT
AGAIN WOULD IT WANT TO MAKE
SURE, WOULD SAYING YOU ARE
GOING TO WIN, AND NOT
ADVISING OF THE CONSEQUENCE
OF LOSING, BE DEFICIENT
PERFORMANCE I MEAN
ALLEGATION SUFFICIENT TO GET
AN EVIDENTIARY HEARING.
>> IT COULD BE YOUR HONOR
DEPENDING UPON OTHER
CIRCUMSTANCES.
>> WHAT OTHER -- AGAIN NOW WE
ARE JUST TALKING ABOUT
PLEADING.
WHAT OTHER CIRCUMSTANCES IN
THE BLEEDING WOULD THERE
HAVE TO BE?
OTHER THAN NOT HAVING
ADVISED OF THE OTHER SIDE OF
THE EQUATION?
>> WELL, THE PLEADINGS ARE
ONLY STOPPED THE EXTENT THEY
ARE NOT REFUTED BY THE
RECORD I'M SIMPLY SAYING
THERE COULD BE SOMETHING IN
THE RECORD LIKE IN THIS
CASE.
>> OKAY.
>> THAT REFUTES THE
ALLEGATION SO THEY DON'T
HAVE TO BE ACCEPTED YOU LOOK
AT ALLEGATION YOU LOOK AT
THE RECORD TO EXTENT MAY
REFUTED ALLEGATIONS, THEN YOU
ACCEPT THAT AS TRUE.
>> IN THIS INSTANCE, THE
RECORD OR THE ALLEGATION, IN
THE TRIAL COURT WAS I FELT
MY COUNSEL TOLD ME SHE FELT
LIKE I WAS GOING TO WIN.
>> CORRECT YOUR HONOR.
>> SO WE ARE DEALING, IN
THIS WHOLE CASE WITH A
MATTER OF SEMANTICS AREN'T
WE?
YOU -- SEMANTICS.
>> ISN'T THERE A DIFFERENCE
BETWEEN ALLEGATION THAT MY
CLIENT MY LAWYER TOLD ME SHE
FELT LIKE I WAS GOING TO
WIN, AND SHE ASSURED ME I
WAS GOING TO WIN SEEMS TO ME
A QUALITATIVE DIFFERENCE.
>> THERE IS YOUR HONOR,
BECAUSE AS DEFENDANT WOULD
YOU WANT YOUR ATTORNEY TO
TELL YOU THAT THEY THOUGHT
THE PROSPECTS WERE THAT IS
WERE A THEY ARE THERE FOR
BUT AS FAR AS MAKING
GUARANTEES OR PROMISES, WE
ARE TALKING ABOUT A LOT OF
INTANGIBLES, SOMETHING YOU
CAN'T REALLY PREDICT, WITH
CERTAINTY, SO WHEN YOU GET
INTOES A PROMISE YOU REALLY
TALKING ABOUT A DIFFERENT
AREA THAN WHAT WE ARE
DEALING WITH HERE.
>> I WOULD LIKE TO CAN --
TWO -- TWO AREAS, ONE IS --
MR. ROGOW SAYS YOU KNOW
REALLY OUGHT TO BE PART AND
PARCEL OF WHAT HAPPENS WITH
THE DEFENDANT -- LAWYER BUT
-- THEY PUT THIS IN WRITING
YOU KNOW I ADVISED YOU OF
THIS OFFER AND YOU --
REJECTED IT OR YOU -- OR I
ADVISE YOU THAT -- AND I
KNOW IN PERSONAL INJURIES
CASES FROM YEARS BACK YOU
WOULD NEVER -- YOU KNOW IF
OFFER WAS CONVEYED, YOU
WOULD DEFINITELY WANT TO GET
YOUR CLIENT TO PROTECT
YOURSELF, I ADVISE YOU HAD
TO TAKE THIS OR NOT TAKE IT,
THE -- YOU AREP CAPTAIN OF
THE SHIP BUT THIS IS MY
ADVICE, IS THAT A AS FAR AS
HIS PRACTICE, WHEN STATE
CONVEYS THE PLEA OFFER DO
THEY GENERALLY TRY TO CONVEY
IT IN WRIING OR IS THERE SO
MANY VARIETIES WHAT MIGHT
HAPPEN TO PROTECT HIM FOR
THE STATE OFFER BECAUSE IF
THE STATE WANTS THE PLEA
WANT TO MAKE SURE THAT IT IS
CONVEYED YOU MIGHT HAVE A
LAWYER WHO IS DOING 20 CASES
AT ONE TIME WHAT IS THE
PRACTICE OUT THERE?
>> IT VARIES WIDELY YOUR
HONOR I DON'T THINK ANY SET
PRACTICE, MAYBE THERE SHOULD
BE.
>> WE HAVE SUCH A THING WHEN
THEY GIVING UP THEIR RIGHTS
AT TRIAL YOU KNOW, PLEA
COLLOQUY ALL THAT, STRIKES
ME THAT IT WOULD BE, SIMILAR
SIMPLE THING TO HAVE AN --
YOU ARE SAYING IT HAPPENED
HERE WHICH IS THE JUDGE
CONFIRMED THAT THERE WAS
OFFER THERE WASN'T OFFER BUT
THE JUDGE WAS TRYING TO FIND
OUT JUDGE CERTAINLY DONATES
WANT TO GO THROUGH A TWO
WEEK TRIAL UNLESS YOU KNOW,
IF THERE WAS GOOD OFFERS OUT
THERE, SO -- THAT IS USUALLY
IN THE RECORD?
THAT IS THAT THE JUDGE ASKED
WERE THERE ANY PLEA OFFERS.
>> IT IS OFTEN ON THE RECORD
WOULD I HAVE TO SAY PROBABLY
JURIST OF THE TIME IT IS NOT
THERE.
-- MAJORITY OF THE TIME NOT
THERE THE STATE COULD
PREPARE IN WRITING A LOT OF
THESE ISSUES COME UP JUST
SOMETHING BETWEEN THE
DEFENSE ATTORNEY, AND THE
DEFENDANT, SOMETHING THE
STATE REALLY CAN'T REMEDY
JUST BY PRESENTING ALL
OFFERS IN WRITING.
>> IF NO FURTHER QUESTIONS
THAT I WILL COMPLETE MY
ARGUMENT.
>> MR. ROGOW I'M GOING TO
GIVE YOU A COUPLE OF MINUTES
HE YOU USEDALL UP ALL YOU
HAVE MAYBE YOU CAN GET OUT A
COUPLE OF POINTS.
>> JUSTICE WELLS YOUR POINT
WELL TAKEN ABOUT ALLEGATION
I INCLUDE IN PAGE TWO OF OUR
BRIEF SHE FELT SHE WOULD WIN
AT TRIAL BUT THEN IT GOES ON
TO SAY AND IN AT A WORSE AT
THE CHARGES WOULD BE
DOMESTIC VOOINLS AND THAT IS
-- NOT PROCEEDED BY SHE FELT
IF ONE READS THIS ONE HAS TO
READ IT, AS --
>> BUT DOES APPEAR A
DIFFERENCE BETWEEN WHAT WAS
ALLEGED, AND WHAT THE FOURTH
DISTRICT WROTE WAS THE
SITUATION IN THIS CASE,
WHERE FOURTH DISTRICT SAYS
RATHER BOLDLY THAT SHE THE
LAWYER ASSURED A WIN.
>> IT IS TRUE.
THERE IS A DIFFERENCE.
THEY USE THE WORD ASSURED,
HE DOESN'T USE THE WORD
ASSURED IN THERE BUT THE AT
A WORST PARSE -- PART I
THINK BRINGS IT ALL TOGETHER
I RECOGNIZE THAT DIFFERENCE,
I THINK AN IMPORTANT POINT,
HAS BEEN MADE, BY THE STATE
AND THAT IS THAT THE
DIFFICULIES IN THESE CAUSE
ABOUT HAVING THIS KIND OF
PROCESS, THAT HAPPENS ON THE
EVE OF TRIAL ON THE MORNING
OF TRIAL A MOMENT BEFORE
TRIAL, AND THEN IT GETS US
INTO ALL OF THESE PROBLEMS,
LATER ON.
>> --
>> JURY IS OUT --
>> IT COULD HAPPEN WHILE THE
JURY IS OUT TOO AT LEAST IN
THAT POSITION, YOU KNOW YOU
ARE -- HERE IS THE SITUATION
WHICH THE FELLOW IS SAYING,
I WAS TOLD THAT SHE TOLD ME
SHE WOULD WIN THE CASE, FELT
SHE WOULD WIN THE CASE
WHATEVER -- HOWEVER.
>> WHEN COULD YOU EVER WHEN
COULD AN ATTORNEY EVER
ADVICE A CLIENT NOT TO TAKE
A PLEA?
I MEAN IF ATTORNEY HONESTLY
-- YOU KNOW EVALUATES A
CASE, AND DECIDES, THAT WE
COULD POSSIBLY WIN ON THIS,
OR WE COULD GET THIS KNOCKED
DOWN TO A -- REDUCED CHARGE,
AND THEY MAKE AN HONEST
ASSESSMENT OF THAT, WHY
SHOULDN'T YOU BE ABLE TO
TELL YOUR CLIENT THAT DON'T
TAKE THIS PLEA, THAT HERE IS
THE SITUATION, LET'S TAKE
OUR CHANCES AT TRIAL?
>> YOU SHOULD BE ABLE TO DO
THAT, JUSTICE QUINCE AS LONG
AS THE CLIENTS CAN MAKE THAT
DECISION KNOWINGLY AND
INTELLIGENTLY REQUIRES A
FULLER ASSESSMENT MY CONCERN
THESE HAPPEN HAPHAZARDLY NOT
TALKING MONEY LIKE CIVIL
CASE.
>> THERE IS NO -- THERE IS
NOTHING IN THE ALLEGATION
HERE, THAT DEMONSTRATES,
THAT THE THAT THERE WAS NO
KNOWING AND INTELLIGENT
DECISION MADE, THAT IS THAT
IS THE PROBLEM I HAVE HERE,
SHOULDN'T THERE BE, SOME
ALLEGATION, THAT THERE THAT
ATTORNEY DID SOMETHING
WRONG, SO THAT NOW POSSIBLY,
THIS PLEA IS INVOLUNTARY.
>> I THINK IT WOULD BE
BETTER IF SUCH ALLEGATION
BUT I DON'T THINK IT IS
CRITICAL FOR THE 6TH
AMENDMENT ANALOGY --
[INAUDIBLE]
>> THANK YOU VERY MUCH,
WE'LL TAKE THE CASE UNDER
ADVISEMENT.
>> THANK YOU BOTH FOR YOUR
ARGUMENTS THIS MORNING.