December 24, 2004
Gov. Rowland's interesting plea agreement
With thanks to Professor Ellen Podgor of White Collar Crime Prof Blog, I can now provide a link here to former Connecticut Governor John Rowland's plea agreement. I pondered in this post whether the agreement included a Blakely waiver and whether it anticipated a decision in Booker and Fanfan. Not surprisingly, these issues are well covered on page 3 of the 11-page agreement.
The entire Rowland plea agreement is a fascinating read. It includes provisions calculating the guideline sentencing range for Rowland of 15-21 months of imprisonment. The last three pages of the agreement constitutes a "Stipulation of Offense Conduct," and it covers the facts which support these guideline calculations. Also of interest is a passage on Page 5 of the agreement that contemplates Rowland will argue for a downward departure from the guideline range of 15-21 months on various grounds related to his minor role in the offense and his professional and community contributions.
December 24, 2004 at 09:09 AM | Permalink
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I have a serious question that may seem snarky at first glance, but is truly sincere.
How many defendants actually fall into the category where prosecutors are interested in such detailed plea agreements, especially wrt sentencing issues? From previous posts here, it seems that they like to keep all of their options open as much as possible for increased or at least highest possible sentences, like writing Blakely waivers into them. And how many defendants are sophisticated enough to get their lawyers to even try this approach?
Posted by: Jeannie | Dec 24, 2004 2:44:19 PM
Good point Jeannie,
I agree with everything you say except the issue of sophistication of the client driving the detailed plea agreement. Like most folks, AUSA's are creatures of habit and when a defense attorney wants the type of detail seen in this plea agreement, which deviates from the normal plea agreement that I see, it is quite difficult to get it done. The alternative problem is that the frontline AUSA might be receptive, and some are, but the supervisor wants the "model" followed and vetos any change from that model. As an example, you note in the governor's plea agreement that it states three years of supervised release with a potential term of two years imprisonment upon violation of supervised release. This is clearly the law, but I have been unable to get this specific language in a plea agreement, but have had to put up with language that states upon revocation the client might have to serve the entire term in prison. I know it is incorrect, the frontline AUSA agreed with me, but the supervisor vetoed the change from the model. What is a defense attorney supposed to do with this type of hardheaded approach? I probably do not have to tell you that the government is in the driver's seat in nearly every case so we have few options in these plea agreements. None of this, however, keeps me from continuing in my efforts to get the correct language and more specific language that is helpful to my clients.
Posted by: doug | Dec 24, 2004 3:09:20 PM
Thank you for your respectful reply. It appears to be important for a layman to keep both the theoretical and the pragmatic in mind when considering criminal law, especially sentencing issues. Not being a professional in this area, I tend to put myself in the shoes of real life defendants. I also tend to play devil's advocate by trying to look at options through the eyes of an innocent defendant. He must have been an important theoretical possibility designed into the system, but I think he is easily forgotten in our "tough on crime" climate.
Thank you also for the perspective provided by your example of the mechanics of a plea bargaining process. It is so easy to unknowingly think of it in more black and white terms than are allowed for in real life situations. This is especially true for one trained in an engineering disclipline, where many things really are nearly black and white.
Posted by: Jeannie | Dec 25, 2004 9:43:46 PM
I am a criminal defense lawyer who blogs at Long Island (Criminal)Trial Law@blogspot.com
I agree that getting proper language into an agreement is more difficult than one would think when there is the customary language available. I think this worked out because the AUSA and supervisors saw the Govenor as potentially a victim of politics in a jury's mind and feared an aquittal such fears will always result in better terms in these type of agreements. The question I have is how much is the judge reequiredt to follow the plea agreement as to these terms post Blakley? How does Blakley impact on the judges roll visa vie Rule 11. If the high court rules that these types of agreements fufill the Apprendi requirements maybe Rule 11e will need rewriting or at least rethinking. Is the court going to be bound by these agreed upon findings or If it disagrees what then?
Posted by: Anthony J. Colleluori | Dec 26, 2004 12:17:41 AM
As to potential changes in Rule 11 and the use of admissions in a plea agreement to increase a relevant statutory maximum sentence, you might consider reading the amicus in Booker/Fanfan dealing with adequate waivers and admissions. It argues that a simple admission is insufficient to act as a waiver of one's "Blakely/Apprendi rights."
Posted by: doug | Dec 26, 2004 3:10:54 PM
Posted by: Doug B. | Jan 1, 2005 10:29:03 AM