Re: 420 at 4:20 in Manchester

[bigmike]

Now that I can get the person's contact information it should be a little easier to track them down. I'm a pretty good salesperson so convincing them to change their plea to not guilty shouldn't be too difficult. Getting the court to change the plea is where I think I'm going to run into trouble.

In State v O'Leary I read "because a guilty plea must be voluntary to be valid a defendant cannot be forced to plead guilty even if he has come to a plea bargain agreement with the state".

I thought that would be enough but while reading a West Digest chapter regarding pleas there were numerous NH cases cited that contradict State v O'Leary and leave me wondering what type of circumstances would have to had occurred for the court to withdraw the guilty plea and allow the defendant to plea anew?

The Acknowledgment of Rights form (http://www.courts.state.nh.us/forms/nhjb-2093-ds.pdf) signed by the defendant at arraignment states in the very last paragraph before the presiding judge signs:

"I hereby certify that I have examined the Defendant concerning the plea entered in this case. Based upon that examination I find that the Defendant understands the nature of the charge(s), the minimum and maximum penalties which may be imposed therefore, and the elements of the offense(s); and I find that the Defendant is not under the influence of drugs or alcohol, and that the waiver of each right set forth on this form is made intelligently, knowingly and voluntarily. I further find there is a factual basis for the Defendant's plea."

I've seen a few arraignments here. Nobody explains the elements of the offense that need to be proved to obtain a conviction and the defendants likely don't understand the nature of the charges even though they say they do. These people don't get the opportunity to speak to a lawyer until after arraignment so I thought a good angle would be that the person that is supposed to explain this to them is the prosecutor, who doesn't represent their interests.

Bradford v Stumpf reinforces this theory. "The judge need not personally explain the elements of each charge to the defendant on the record. Rather, the constitutional prerequisites of a valid plea may be satisfied where the record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendant by his own counsel."

Where does that leave the defendant when he has no counsel? Sure, the defendant didn't ask to have this explained to him but likely doesn't know he could.

Monday I'll get a chance to go back to the library and prepare writing memoranda to support the motion. I'm not a lawyer. Am I going about this the right way or do you have a better suggestion? If you want to talk directly send me a private message with a number I can reach you at. Thanks Lance.

[Lance]

Now that I can get the person's contact information it should be a little easier to track them down. I'm a pretty good salesperson so convincing them to change their plea to not guilty shouldn't be too difficult. Getting the court to change the plea is where I think I'm going to run into trouble.

I didn't realize you wanted to persuade people to change their pleas after the case had been resolved.  I thought you just wanted to persuade more people to take their cases to trial.  You're right about the difficulty of getting the court to allow a defendant to withdraw a guilty plea after it has already been entered.

In State v O'Leary I read "because a guilty plea must be voluntary to be valid a defendant cannot be forced to plead guilty even if he has come to a plea bargain agreement with the state".

I thought that would be enough but while reading a West Digest chapter regarding pleas there were numerous NH cases cited that contradict State v O'Leary and leave me wondering what type of circumstances would have to had occurred for the court to withdraw the guilty plea and allow the defendant to plea anew?

Generally speaking, courts allow defendants to withdraw guilty pleas for reasons like mistake, incapacity or fraud.  I don't know the specific situation with the law in NH yet, but I think focusing on people who haven't yet resolved their cases is a better idea.

The Acknowledgment of Rights form (http://www.courts.state.nh.us/forms/nhjb-2093-ds.pdf) signed by the defendant at arraignment states in the very last paragraph before the presiding judge signs:

"I hereby certify that I have examined the Defendant concerning the plea entered in this case. Based upon that examination I find that the Defendant understands the nature of the charge(s), the minimum and maximum penalties which may be imposed therefore, and the elements of the offense(s); and I find that the Defendant is not under the influence of drugs or alcohol, and that the waiver of each right set forth on this form is made intelligently, knowingly and voluntarily. I further find there is a factual basis for the Defendant's plea."

I've seen a few arraignments here. Nobody explains the elements of the offense that need to be proved to obtain a conviction and the defendants likely don't understand the nature of the charges even though they say they do. These people don't get the opportunity to speak to a lawyer until after arraignment so I thought a good angle would be that the person that is supposed to explain this to them is the prosecutor, who doesn't represent their interests.

What is typically happening at arraignments?  Are the prosecutors making deals with the defendants at the arraignment and getting them to plead guilty right there on the spot?  Where I come from the arraignment is the first formal appearance where the judge tells the defendant the charge(s) and if the person doesn't yet have a lawyer the judge either appoints the public defender or continues the case so that the person can hire a lawyer.

Bradford v Stumpf reinforces this theory. "The judge need not personally explain the elements of each charge to the defendant on the record. Rather, the constitutional prerequisites of a valid plea may be satisfied where the record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendant by his own counsel."

Where does that leave the defendant when he has no counsel? Sure, the defendant didn't ask to have this explained to him but likely doesn't know he could.

It leaves him screwed. 

Monday I'll get a chance to go back to the library and prepare writing memoranda to support the motion. I'm not a lawyer. Am I going about this the right way or do you have a better suggestion? If you want to talk directly send me a private message with a number I can reach you at. Thanks Lance.

I don't think you should focus on changing pleas after the fact.  If the goal is to get more people to plead not guilty and take their cases to trial, the easiest way to do that is to get them to do so before they ever plead guilty in the first place.

The most challenging aspect of this project is going to be persuading people to "just say no" to the deal that is being offered by the prosecutor.  Since I'm new up here, I need to find out what the usual deals are like.