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March 27, 2014

Remorseless killer bride gets sentenced to 30+ years in federal prison

As this local piece reports, today a federal "judge has sentenced Jordan Linn Graham to 30 years in prison for the murder of her husband last summer in Glacier National Park."  Here are the basics:

U.S. District Judge Don Molloy sentenced the Kalispell woman to 365 months in federal prison, with no possibility of parole. He also prohibited her from benefiting in any way, including financial, from revealing additional details about the murder. Molloy said he did not find Graham remorseful about her husband's death. He said he kept waiting for her to say she was sorry for pushing her husband of eight days off a cliff in Glacier Park - but that never came.

Earlier in Thursday's hearing, Molloy denied Graham's request to withdraw her guilty plea for the murder of her husband in Glacier National Park last summer....

Graham, 22, of Kalispell, pleaded guilty in December to federal charges in the death of her husband, Cody Johnson, 25. She has admitted to pushing Johnson off a cliff at Glacier National Park on July 7 following an argument.

But Graham's attorneys sought this week to withdraw the plea after the U.S. attorney's office called for a sentence of 50 years to life. Prosecutors recommended such a lengthy sentence in part because they said Graham appeared to plan Johnson's killing.

Molloy, however, ruled Thursday that Graham had knowingly and willingly pleaded guilty near the end of her trial last December — and said that plea will remain in place. He made the ruling after hearing brief arguments from both sides. He then proceeded to the sentencing.

Assuming Graham gets the usual 15% sentence reduction for good time credit, this means she will have to serve over 25 years in the federal pen.  But it also means she should be a free woman again before she turns 50.

Previous related posts (with lots of interesting prior comments):

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Comments

Doug --

"But it also means she should be a free woman again before she turns 50."

Are you happy that she'll be out to do it again? Showing no remorse for having done it the first time, what reason do you have to think she'd have any moral misgivings about a repeat performance?

And do you think there should be any punishment for the defense lawyer, who flat-out lied about the supposed "plea agreement"?

Posted by: Bill Otis | Mar 27, 2014 3:56:37 PM

Your assumption, but at 30 yrs. I'm sure she'll have plenty of time to contemplate her actions and as far as the lawyer issue, I'm sure you have no further insight into the facts of that charge than any other unapprised person commenting on this site about the specific details of this case.

Posted by: Greg | Mar 27, 2014 4:18:56 PM

I think "out to do it again" assumes she would do it again. "Could be able to do it again" is a more correct statement. I'm trying to remember what I said. 20 years, I think. This is roughly on par with that. Seems about right overall.

Posted by: Erik M | Mar 27, 2014 4:41:29 PM

I take no joy in any sentence, Bill, but only think about whether it seems wise and effective. Giving her a chance to be free for only her AARP years seems pretty reasonable to me, especially in light of Congress indicating it thinks some versions of this kind of murder could justifiably get no prison time.

If you think 30 years is too low, assail the prosecutor for taking a deal.

As for the lying lawyer, I do not think the client should suffer for his failings, though clients often do.

Posted by: Doug B. | Mar 27, 2014 4:42:55 PM

Bill--

"Are you happy that she'll be out to do it again? Showing no remorse for having done it the first time, what reason do you have to think she'd have any moral misgivings about a repeat performance?"

At this point, nobody knows what her risk level will be after she is held accountable. If anything, this should tell us that a paradigm shift is in order, to one that realistically takes risk into consideration.

Posted by: Tom McGee | Mar 27, 2014 5:02:16 PM

Doug --

1. "before she turns 50" (your phrase) is not "her AARP years."

2. "...seems pretty reasonable to me, especially in light of Congress indicating it thinks some versions of this kind of murder could justifiably get no prison time."

Glad to see your newfound regard for Congressional views of sentencing, but I wonder how that fits with your view that Congress should not impose ANY minimum for ANY crime, no matter how awful (the JSVA, not the SSA).

3. "As for the lying lawyer, I do not think the client should suffer for his failings, though clients often do."

The question was what sanction should be imposed on the LAWYER. I proposed a $10,000 fine for criminal contempt, to be paid on the spot, and a requirement that he self-report his dishonesty to the state bar.

Do you disagree with that?

Posted by: Bill Otis | Mar 27, 2014 5:12:23 PM

I could not answer this important question from any article.

What number violent act was this murder (with prior removal of identifying belongings from his person, including a wedding ring, and evidence of a blindfold)?

She had threatened to kill her mother, but the judge excluded this inflammatory information.

If she had committed 3 violent acts prior to this murder, the murder is the entire fault of the lawyer profession, being foreseeable.

Posted by: Supremacy Claus | Mar 27, 2014 5:39:22 PM

The sociopath would have no difficulty expressing remorse, including acting tearfully, since they are all good actors. If that is what it takes to knock off 10 years, it is no biggie.

My question is how such an intellectually disabled person as U.S. District Judge Don Molloy got on that bench. Judge, this is not kindergarten anymore. You must seek other criteria for guidance than, "Say, you're sorry."

The stupidity of the lawyer knows no bounds. It's got to be the law school experience.

Posted by: Supremacy Claus | Mar 27, 2014 5:44:07 PM

Bill: In my considerable experience as an internet troll, nothing is faster at getting one banned from a lawyer site than bringing up a Rule of Conduct violation in an individualized situation. Curse words, links to sex with animals sites, personalized, specific death threats, illegal drug importation sites, no problem for the lawyer sophisticate.

Bring up a duty to report or other Rule of Conduct? Gone in 60 seconds. Your comment is a real test of Prof. Berman's dedication to open and frank dialogue.

Posted by: Supremacy Claus | Mar 27, 2014 5:49:04 PM

Bill, some quick replies:

1. I believe AARP membership starts at 50, so she will be real close if/when she gets out. (And if she is the sociopath SC thinks she is, Graham will not earn her good time credit.)

2. I always have regard for congressional views, and I think it is valuable for Congress to set reasonable sentencing policy through mandatory minimum and maximums for various crimes. But, especially for non-violent drugs crimes, setting MMs at 5, 10, 20+ years seems to be bad policy because it gives prosecutors too much control over sentencing outcomes. And, critically, the JSVA does not in fact eliminate MMs, but gives judges limited authority to depart from them using a standard similar to the departure standard under the guidelines before Booker. I assume you did not think the statute providing judges limited departure authority under guidelines gave the guidelines no impact.

One of many reasons I support the JSVA is because it requires transparency and reviewability concerning application of MMs, something which does not exist now. And to the extent you claim that you support transparency and reviewability concerning sentencing decision, you ought also to back the JVSA, too.

3. Especially when I am not privy to all facts and do not know what a client requested/demanded, I am always disinclined to lodge complaints against the work of lawyers. For lots of reasons, therefore, I do not feel in a position to propose sanctions. But, of course, ti you strongly believe sanctions are justified, Bill, I suppose you could write to the state bar and urge an investigation.

Posted by: Doug B. | Mar 27, 2014 6:22:53 PM

Doug --

-- "...the JSVA does not in fact eliminate MMs, but gives judges limited authority to depart from them using a standard similar to the departure standard under the guidelines before Booker....One of many reasons I support the JSVA is because it requires transparency and reviewability concerning application of MMs, something which does not exist now."

Wrongo. The JSVA (here, so people can see for themselves: http://beta.congress.gov/bill/113th-congress/senate-bill/619/text) effectively abolishes every single mandatory minimum. There is absolutely no MM left that a judge will be required to obey, provided only that he be able to give the reasons for his personally preferred sentence, REASONS THAT EXISTING LAW ALREADY REQUIRES HIM TO GIVE.

Your principal stated reason for opposing MM's is that, in your view, they give the prosecutor unreviewable discretion about what to charge, thus "fixing" the sentence. But not a single word in the JSVA requires the prosecutor to justify his charging decision, or explain it in any way; indeed, it does not mention the executive branch at all.

"...to the extent you claim that you support transparency and reviewability concerning sentencing decision, you ought also to back the JVSA, too."

I would back a bill that directs Eric Holder to develop and submit to Congress a plan to make charging decisions more transparent, you bet. I will back no bill providing judicial review of charging decisions, since that would be unconstitutional (just as judicial review of pardons is unconstitutional). I will also back no bill whose underlying premise is that Congress can never, ever order a minimal, rock-bottom sentence for ANY crime, no matter how destructive, vile or hideous.

-- Unlike defense counsel Donahoe, I have not and will not lodge ethical accusations against intelligent, good-hearted and well-meaning attorneys. But Donahoe's accusations against the prosecutor, like other accusations he has made, are not good-hearted or well-meaning. They're fabrications. There never was a plea agreement. My opinion, not entirely unschooled, is that Donahoe is more invested in saying anything to support his ego than in effectively serving his client.

Posted by: Bill Otis | Mar 27, 2014 7:15:07 PM

Bill, the premise of the JVSA is not that Congress cannot set a rigid minimum, but rather that it should not, and that judges can and should be expected and required to exercise sentencing discretion wisely with guidance from both Congress and the USSC.

I know you do not trust judges to exercise discretion so wisely, but I generally do if they are subject to requirements to explain their reasoning in open court and their judgments are reviewed. I might also trust prosecutors under such conditions, but these elements of transparency and review are not built into the exercise of prosecutorial discretion. It is really that easy: trust but verify, which is built into judicial sentencing decision-making but not prosecutorial sentencing decision-making.

Posted by: Doug B. | Mar 27, 2014 10:07:50 PM

I hold to my comment I originally made that over twenty years sounds like a lot for a crime of passion of this sort, especially when at most only a few years will be chopped off as noted in the post above. This so even if she didn't show remorse, which I'm a bit cynical about anyway. I don't think fifteen years, let's say, will do anything less really to advance the usual punishment criteria (deterrence, retribution etc.).

If we are going to worry about her 50 something self killing a new husband (maybe we can require full disclosure before getting a license), there are many other more likely to re-offend murderers out there nation-wide that get a lot less than she is getting here. Evenhanded justice warrants worrying more about them than her. She is probably more likely to kill someone in prison.

Posted by: Joe | Mar 28, 2014 12:53:17 AM

Doug --

"I know you do not trust judges to exercise discretion so wisely..."

They earned my distrust, and Congress's, by 20 years of having their heads in the clouds, 1960-1980. Crime -- murder, rape, robbery, drugs, you name it -- exploded while the courts went out for a cup of coffee. The country is fully justified in refusing to go back to that.

"I might also trust prosecutors under such conditions [of scrutiny and review], but these elements of transparency and review are not built into the exercise of prosecutorial discretion. It is really that easy: trust but verify, which is built into judicial sentencing decision-making but not prosecutorial sentencing decision-making."

Then it should be built in to the prosecution; I personally would love to study how Holder and his guys decided to go after one case and walk away from the next. So, as I said, I'm for visibility. I am NOT for courts getting judicial review of it, not directly and not indirectly by some can't-we-just-let-in-this-nice-camel's nose.

I want visibility to facilitate public action -- action by the people, not judges, deciding whether they like what prosecution is producing.

I realize the limitations and blunderbuss character of electoral solutions, but the saving grace is that, while broad, they embody democratic legitimacy courts can never achieve

Posted by: Bill Otis | Mar 28, 2014 1:15:00 AM

Both negligent prosecution and negligent discretion to not prosecute should be subject to full tort liability. Discovery will make the process transparent. Intentional acts should be subject to exemplary damages. Violations of Rules of Conduct applicable to prosecutors should result in negligence per se. All liability should be to the assets of the prosecutor. Let these lawyers carry liability insurance, as everyone else has to to fend off the lawyer predator.

Posted by: Supremacy Claus | Mar 28, 2014 2:44:31 AM

Bill,

Sorry, but as I see things the electoral process is simply far too unfocused for '[vote the rascals out' to be a solution to any but actually criminal office holders. Unfortunately I'm not sure there is any better solution to be had because I, too, would be opposed to judicial review of charging vs. non-charging decisions.

Perhaps the change I could see repairing non-charging decisions would be reforms to the grand jury system that require a much broader base of participation along with an option for private prosecution of criminal acts. Or ditching the grand jury system entirely and simply using a single judge gatekeeper (who then does not hear the case)for the PC finding.

Posted by: Soronel Haetir | Mar 28, 2014 9:13:02 AM

Bill, I would not be so quick to say that anyone is telling a lie -- at least when we do not appear to have many details regarding the positions of the parties. As I am sure you know, the law sounding plea agreements is, to a very large extent, based on contract law. This often involves the "meeting of the minds" stuff we learned back in law school. It also can come down to interpretation of a written plea agreement. Any ambiguities in the agreement are construed against the party that drafted it. At least that is the case in the 6th Circuit. There are also other aspects of contract law, along with the constitution, that can impact the matter.
It is very much possible that both the prosecutor and defense attorney agreed on the substance of what was said when they reached a plea agreement or that there was a written agreement with no dispute as to the contents of the writing. The legal effect of what was said or of the writing may have been the issue.

Posted by: Tim Holloway | Mar 28, 2014 12:27:34 PM

Tim Holloway --

Let me just repeat from the prior thread on this note by Gary Proctor, a highly-regarded defense lawyer, and my response to it. Mr. Proctor's first:

I think Bill's right. You (as in defense bar like me) don't want to believe that the truth is she "pled guilty without a plea agreement" after reading the allegations in the motion to withdraw plea, but apparently so it goes.

Given that fact, any hyperbole by the defense is painful. Who doesn't know that federal sentencing proceedings take into account a broader range of conduct that what was proven through the conviction? Without a specific agreement not to argue premeditation as a sentencing factor, I don't see how there is any good faith argument that a plea agreement exists. If your client insists that she wants to withdraw the plea, I suppose you have to do it, but last I checked you're not allowed to just make up terms for the "agreement." This is not a time to slap the table and shout "outrageous!", it's a time to make a (probably loser of a) legal argument that such a term should be implied by law - or whatever else comes to mind. The point is that you have to come to grips with the fact that your client's position is not supported by the law and then take it up on appeal (and here, lose).

The fact that there is no written plea agreement as to any sentencing issue is a strong indicator that getting mandatory LWOP off the table was the point of the agreement - and that's no small concession by the government here. To come back and argue that you are entitled to concessions at sentencing as well is . . . entitled. If she comes to her senses, she'll be glad that she was not allowed to withdraw her plea and go to trial.

Posted by: Gray Proctor | Mar 27, 2014 8:43:05 PM ###

My response was:

Gary Proctor --

Thank you.

It was not all that uncommon in my experience for defendants to plead straight up. Usually they did it to avoid signing the appeal waiver that was included in every plea agreement.

What happened in this case is pretty clear. Ms. Nicey runs hot and cold, and has no particular scruples. She decided to marry the guy, then decided it wasn't such a good idea, so she pushed him off a cliff.

Unable to give a coherent explanation for why the bridegroom had disappeared, she told a series of bald-faced lies until it became clear that she had offed him (literally). At that point, she got charged with murder one.

The prosecutor couldn't be sure he'd nail her on that, the evidence being circumstantial, so in December he OFFERED a plea to murder two. Ms. Nicey and Donahoe told him to get lost.

At trial, things started to look grim for Ms. Nicey, so she figured it was time to bail, and pled straight up to murder two (which was also in the indictment). The prosecutor was taken by surprise, but, figuring that discretion is the better part of valor, acquiesced.

Then Ms. Hot-and-Cold turned cold again and, specifically, got cold feet about her plea and the likely long sentence. So she moved to withdraw it. Donahoe knew there was no legal basis to do so, so he just fabricated one: That there was an invisible plea deal. This was an especially galling lie, not simply because it falsely impugned the integrity of opposing counsel, but because IT WAS DONAHOE HIMSELF who had rejected a deal, thus insuring that it never came into existence.

It's one thing for defendants to lie. We're all used to that. But it's quite another for defense counsel -- and a Public Defender, no less -- to smear the prosecutor as having gone back on his word. This is not to mention that it's a fraud on the court.

As you suggest, if Donahoe thought he could ethically continue on the case at all, he should have put together the best motion he could and let it go at that.

I guess my last observation is that it's astounding, and depressing, that some defense attorneys who comment here and clearly know better pretend that Donahoe was doing anything but lying.

An invisible plea agreement in a murder case. Yikes.

Thank you for your post. ###

So, Tim, I then offered a bet of $100 to an Assistant FPD in Texas, Brad Bogan, that no plea agreement would ever surface. I now offer the same bet to you.

The reason it's not going to surface is that it doesn't exist. The prosecutor never had a deal to refrain from arguing premeditation. It's conceivable that he OFFERED such a deal (although no one has ever seen that either), but even if he did, the defense turned it down.

This is not a case of "misunderstanding." It's a case in which Mr. Donahoe wanted to wriggle out of his client's plea, had no legal basis for doing so, and thus had to invent one.

Are we on with my bet?

Posted by: Bill Otis | Mar 28, 2014 1:29:22 PM

Bill, I can point to a specific case where a very conservative judge took various discussions and statements that went back and forth during plea discussions as constituting an enforceable Santebello agreement.

The defense attorney's version of events were not challenged as being inaccurate. The issue was whether there was a clause in the agreement for the prosecutor not to make a certain factual argument at sentencing (which the prosecution wound up making at sentencing). No written agreement was drafted or signed regarding this issue.

A motion was brought. The defense attorney testified at a hearing. I don't believe, by any means, there was a 100% clear agreement similar to what you or I would want if, for example, one of us were buying a new car. However, it was clear enough for the judge. Essentially, he found there was a contract in the same way that a contract might be found under state law even though the back and forth on the negotiations never resulted in a written agreement. I believe the prosecution essentially argued, as I would have done if I were in the prosecution’s shoes, that there was no meeting of the minds, regarding this portion of the agreement, at the time of the plea. No attorney in the matter not have been considered a liar if the judge would have denied the motion. It was essentially an issue of the legal effect of various statements and discussions (which are also sometimes the point of contention in civil contract matters).

Also, I decline the bet. Besides, wouldn't that be against the law? :)

Posted by: Tim Holloway | Mar 28, 2014 2:29:20 PM

It may well be the case that, in the episode you discuss, there was an ambiguous plea agreement. But all these things are fact-specific, so what happened on one case in a different jurisdiction with a different judge and different lawyers doesn't tell us anything about what happened here.

But the coverage of the case does. The AUSA said point-blank that there was no agreement. Mr. Donahoe said point-blank there was, and, moreover, that it contained a specific provision binding the government not to argue premeditation in allocution.

The judge who presided over all this ruled against Donahoe and denied his motion. Now maybe he, like the AUSA, is also lying, but I just have to doubt it.

"Also, I decline the bet."

A wise move, as ever.

"Besides, wouldn't that be against the law? :)"

I commit Three Felonies A Day. We all do. Just ask Harvey Silvergate.

Posted by: Bill Otis | Mar 28, 2014 3:49:16 PM

I have a question about procedure in federal court: Is an oral plea agreement enforceable or must that agreement be in writing and filed with the court in order to be enforceable?

Posted by: C | Mar 28, 2014 5:45:35 PM

I don't think the Judge was lying. Actually, I don't really think the Prosecutor was lying either, but, even assuming he was, I think the Judge would still make a judgment call in the fact of two competing proffers from officers of the court. But that call wouldn't be a lie. I can't see a judge willing to contradict a prosecutor in this situation. It's much easier to reconcile the two arguments by believing the defense attorney was mistaken about what was said. I'm sure it was an awkward situation for the Judge no matter what.

Posted by: Erik M | Mar 28, 2014 11:39:16 PM

Erik M --

You are one of the more sensible posters on this board, but I must disagree with you in this instance.

The AUSA said that there was no plea agreement and that he never promised, in such an "agreement" or otherwise, to refrain from arguing premeditation at the sentencing hearing.

The defense lawyer said that there was an agreement and that the AUSA made that promise as part of it.

This is not something an attorney with an IQ over 70 could be "mistaken" about. Somebody is lying.

Defense counsel also said the agreement was made in December. And it STILL has not been reduced to writing? And no one can produce it?

There is simply no realistic possibility that a federal murder case would be resolved by an oral plea agreement, much less an agreement about THE central issue in the case; and there's a reason no one is taking my bet that this alleged "agreement" never shows up.

If I (or any conservative) tried to peddle a story with the degree of plausibility of the defense lawyer's, I would be laughed off the board.

Posted by: Bill Otis | Mar 29, 2014 12:27:24 AM

Oh, it was back in December? When did she enter her plea? Wasn't it in the last few weeks? It's hard to imagine even a promise like that still being part of the deal after the defendant chooses to go to trial. Do both agree that the second degree murder offer was from December?

I guess there's nothing like a little murder trial to raise the stakes, but it's still hard to imagine any attorney, knowing that they will see that Prosecutor or Judge again, to deliberately misrepresent what happened. It's why my brain is still searching for a way for there to be a misunderstanding. I've just never seen anything like this (and, from your re-posting of what a defense attorney you spoke to said, it seems my instinct is not far from the norm for defense attorneys that this isn't something that one would do).

Posted by: Erik M | Mar 29, 2014 12:30:03 PM

Erik M --

"Oh, it was back in December? When did she enter her plea? Wasn't it in the last few weeks?"

She entered her plea on December 12 or 13, I can't quite remember which.

"Do both agree that the second degree murder offer was from December?"

That's what defense counsel says, and the AUSA has not disagreed with him on that point to my knowledge.

"I guess there's nothing like a little murder trial to raise the stakes, but it's still hard to imagine any attorney, knowing that they will see that Prosecutor or Judge again, to deliberately misrepresent what happened."

You would certainly think so, and hope so, but that seems not to be how the world now works.

The ethics of the profession are now so degraded that there is a segment of the defense bar that believes unyielding fidelity to the client, and implacable opposition to the draconian government, warrants, uh, "stretching it" a bit. And, as is usual once that sort of line is crossed, "stretching it" turns into lying.

This ethical dumbing-down is abetted by the fact that only very, very infrequently does anything serious get done about it.

Posted by: Bill Otis | Mar 29, 2014 1:05:08 PM

Bill,
I just downloaded the March 25, 2014 motion to withdraw the plea, the brief in support and the prosecutor's response from the Montana District Court's PACER system. The defense was arguing that by agreeing to a plea to 2nd degree murder, the prosecution effectively took the issue of premeditation off the table. The argument was based on the legal effect of the plea itself. The defense did not state that the prosecutor said "I will not argue there was premeditation when it is time for sentencing." The argument was that the legal effect of the plea should preclude this --- at least this seems pretty clear to me after reading the document. I will email them to you, if you want.

That being said, the motion does make reference, in a single paragraph, to an earlier motion and brief that claimed prosecutorial misconduct that was apparently in relation to the plea bargaining process and the premeditation issue. See paragraph C of the March 25th motion which straddles pp. 2-3. I have not downloaded the early motion or its supporting brief.

Also, I do not know of any way to attach the documents to this posting and thus make them available to persons who read this blog. However, I will forward them to Professor Berman in case he wishes to do this.

Posted by: Tim Holloway | Mar 29, 2014 1:23:40 PM

Tim Holloway --

1. This is how you put it (emphasis added): "The defense was ARGUING that by agreeing to a plea to 2nd degree murder, the prosecution EFFECTIVELY took the issue of premeditation off the table."

This is an explicit concession of exactly what I've been saying: There never was a plea agreement. The claim that one existed is an outright lie. There was no agreement that was "misunderstood" or that just hasn't been transcribed yet (as Brad Bogan was saying).

I'm mean, hello! There was a plea deal without any dealing???!!!

2. Also as I've been saying, the only thing that happened on the prosecutor's part was that he ACQUIESCED in the defendant's unannounced, unilateral, by-herself decision to plead guilty to Count 2 of the indictment.

This is entering an "agreement" to forego a part of your allocution? It's not an agreement to do anything.

Sure, the other counts in the indictment were then dismissed. One would hope. When a trial is ended with a straight-up plea, you don't continue the trial. Had the prosecutor kept right on going, the judge would have called him up to the bench and asked, "Have you been drinking?"

3. Even taken on its own preposterous terms, the defense account is complete baloney.

It was no longer contested that the defendant did the deed. At that point, the WHOLE CASE was about her state of mind and, specifically, to what degree the murder was intentional. And as the defense bar always reminds us (correctly, this time) there are varying degrees of intent.

Defense counsel could not possibly have believed that the prosecutor had "taken off the table" THE ONLY ISSUE THERE WAS LEFT TO TALK ABOUT. Still less could he have believed this when the prosecutor had never said any such thing.

What? The prosecutor can unilaterally (and silently) waive the court's authority under 18 USC 3661 to consider any relevant factor in sentencing?

The defense lawyer here, in his motion to allow his client to withdraw her plea, argued that she should be allowed to do so because a dishonest prosecutor had gone back on his "effective" "agreement." But the AUSA had gone back on no agreement, there never having been one.

If you were an AUSA, would you ever trust this defense lawyer again? And how much credence did the court give defense counsel in ruling on his song-and-dance motion?

Posted by: Bill Otis | Mar 29, 2014 4:59:32 PM

no bill your wrong. if the prosecution agreed to a plea that required a conviction for a crime that can not contain premediation of murder it's kind of two-faced then then once the agreement is done to now argue premediation to up the sentence.

there is that two-faced shit about using unconvicted conduct again. Which is a direct violation of the real united states constitution.

but I really loved this

"The ethics of the profession are now so degraded that there is a segment of the defense bar that believes unyielding fidelity to the client, and implacable opposition to the draconian government, warrants, uh, "stretching it" a bit. And, as is usual once that sort of line is crossed, "stretching it" turns into lying.

This ethical dumbing-down is abetted by the fact that only very, very infrequently does anything serious get done about it."

the sad thing is it applies to BOTH SIDES! or course you know what the real problem there is is lawyers...not just defense but prosecution as well.

You ALL spend too much damn time with politicians! the final corrupt version of a lawyer!

Posted by: rodsmith | Mar 29, 2014 5:27:33 PM

rodsmith --

"the sad thing is it applies to BOTH SIDES! of course you know what the real problem there is is lawyers...not just defense but prosecution as well."

You are 100% correct that it applies to both sides. If an AUSA ever told a court that his opposing counsel had "agreed" to something, and opposing counsel had never agreed to it, that AUSA should be fired that afternoon.

"You ALL spend too much damn time with politicians! the final corrupt version of a lawyer!"

I confess. I did spend some time with a politician who lived in a house in the very heart of DC. And I also confess that I spend some time with politicians now.

A few politicians are low-down crooks, you bet, http://www.powerlineblog.com/archives/2014/03/the-democrats-theyre-not-a-party-theyre-a-crime-wave.php

Others -- most, in my experience -- are honorable people, and I'm happy to know them.

Posted by: Bill Otis | Mar 29, 2014 6:02:34 PM

Tim Holloway --

I went back to Doug's original March 26 entry on this matter, here: http://sentencing.typepad.com/sentencing_law_and_policy/2014/03/killer-bride-jordan-graham-moves-to-withdraw-murder-plea-claiming-feds-breached-deal-in-sentencing-a.html#comments

I would note the following quotations from the news story Doug reported:

"The Kalispell newlywed accused of pushing her husband off a cliff last summer asked to withdraw her guilty plea late Tuesday, arguing [by counsel] the agreement she accepted was 'illusory' and a 'hollow formality.'"

"In Tuesday’s motion, federal public defender Michael Donahoe argued that prosecutors 'breached the plea agreement' by suggesting in a sentencing memorandum filed last week that Graham murdered Johnson with both intent and premeditation. That memorandum, and its suggestion that Graham be sentenced to life in prison, rendered December’s plea agreement 'nothing but an empty promise'."

"'By offering and agreeing to accept a plea agreement to second degree supported by an extreme recklessness plea colloquy, the government effectively removed the issue of defendant’s alleged premeditation as an issue in the case,' Donahoe wrote Tuesday. 'That was the entire purpose of the plea agreement,' he added."

"On Tuesday, Donahoe said the prosecution’s return to premeditation theories rendered the plea agreement void — and asked the judge to allow Graham to withdraw her admission of guilt.... 'By making what should have been its closing argument to the jury in its sentencing papers, the government has furnished a "fair and just reason" to support defendant’s request to withdraw her plea,' Donahoe wrote. 'The government’s plea agreement promise ... is an empty and hollow formality,' he said." ###

According to this report, which extensively quotes the defense lawyer, the lawyer was NOT relying on, or even mentioning, the argument that, as you put it, "by agreeing to a plea to 2nd degree murder, the prosecution effectively took the issue of premeditation off the table. [Defense counsel's] argument was based on the legal effect of the plea itself."

That is simply not so. Repeatedly and emphatically, defense counsel said that there was a plea agreement. He also said that the prosecutor breached the agreement, and explicitly accused the prosecutor of bad faith.

In light of these extensive quotations of the exact words out of defense counsel's mouth, do you still maintain that counsel was just arguing the "legal effect" of the prosecutor's acquiescence to the defendant's plea?

If so, on what basis?

I will repeat: Defense counsel was lying. He was, moreover, doing it belligerently, and making it personal. Do you think this conduct is professional? Or even remotely honest?

Posted by: Bill Otis | Mar 29, 2014 8:32:54 PM

I would also agree with this bill!

"A few politicians are low-down crooks, you bet, http://www.powerlineblog.com/archives/2014/03/the-democrats-theyre-not-a-party-theyre-a-crime-wave.php"

the problem is they have no problem stripping the civil rights from a 1,000,000 American citizens via the ever changing sex crimes laws based on the actions of maybe 5% of them. So I have no problem painting them all as lieing traitors based on that 5-10% of them actually guilty!

I'm willing to stop when they do!

till then too damn bad. they are all traitors and criminals.

Posted by: rodsmith | Mar 29, 2014 10:45:28 PM

Bill,

Sorry but relying on news reports to be truthful (or at least accurate) - especially about gritty details - is far more foolish than expecting a lawyer to do so in court. I am not a lawyer but I do read a large number of court opinions and then news reports on those opinions and pretty much invariably the news glosses over what is written. I don't see why news reports about filings would be any different than those about actual rulings. And I can certainly say that news reports about the things I am a true expert in ((certain computer related areas) are horrible about the details.

Arguing that anyone was lying based upon (print) news reports of their actions is a lost cause in my book. I don't trust news reports to present accurate quotations of spoken words, even when the report claims a verbatim transcription. Video is (or at least can be) a different matter as it will actually present what the person said.

Posted by: Soronel Haetir | Mar 30, 2014 1:03:05 AM

Soronel --

Although you're right in general that news reports can be unreliable, when a reporter has numerous, long quotations from what counsel says in open court, those are almost always accurate. The reason is that the reporter has a recorder with him (or her), and writes the story from it.

Still, if you have a better source for what the defense lawyer said at the hearing, I'd be happy if you could provide it.

Finally, I offer you the same bet I have offered Tim and Brad: I bet you $100 that no plea agreement ever surfaces.

That's because there never was one (as Tim now tacitly admits, saying that the prosecutor's supposed duty to refrain from arguing premeditation arose by operation of law). It's fabricated. Defense counsel's claims that there was one, and that the prosecutor promised not to argue premeditation, are point-blank lies. Never happened.

Are we on?

Posted by: Bill Otis | Mar 30, 2014 9:30:36 AM

Bill, I think is appropriate to sum up what defense counsel did as follows. He did not lie about what occurred in terms of statements between defense counsel and the prosecution. It appeared his argument was based on the plea itself, which was almost certainly placed on the record and subject to transcription (i.e., no one told a lie about any statements that occurred, it was the legal effect of the plea that occurred). He made a good-faith legal argument, albeit one that was rejected. This essentially was like arguing there was a condition to the contract that should be implied by law or, again, involved the meeting of minds. I believe this type of argument happens fairly frequently in civil litigation over the terms of a contract. It should be of no surprise to see a criminal defense attorney making a similar argument.

I think the defense was fulfilling his responsibilities to vigorously present the position of his client. I don't see how you can classify that as the defense telling a lie which should subject defense counsel to a fine, grievance or something like that. (This was the only reason I posted on this subject; I never said that I believed there should be an implicit term that would require the prosecution not to argue premeditation at sentencing; I don't think I ever expressed an opinion on this, one way or the other; I expect, if I had been the judge, I may have also rejected the argument; however, if pressed to express an opinion I would want to think about it more and perhaps do independent research).

As far a plea agreement, I cannot say that I have read the transcript of the plea proceeding that, as I understand it, resulted in the end of the trial. However, I have been under the impression that she pleaded to 2nd degree murder (which did not require premeditation) and that the prosecution agreed that the 1st degree charge (which required premeditation)would be dismissed. If my understanding is correct, there was a plea agreement, correct? It just did not contain an explicit term that the prosecution would not argue premeditation at sentencing.

Posted by: Tim Holloway | Mar 30, 2014 1:04:06 PM

The first excerpt below is from the prosecutor's response to the defendant's motion to withdraw the plea. There was a plea agreement according to the prosecution. In fact, the prosecution made the offer according to the following text (i.e., the defendant did not surprise everyone by unilaterally entering a plea in an unannounced manner). If there had not been agreement, the prosecution could have still decided to go forward with the 1st degree charge and Count III (regarding a false statement). Your statements on March 29th, at 4:59 (a portion of which are also included below) do not appear to be correct.

FROM THE PROSECUTION'S RESPONSE:

At the conclusion of all evidence at trial, this Court determined that there was sufficient evidence for both Count I – First Degree Murder, and Count II – Second Degree Murder, to be given to the jury for a determination of guilt or innocence. Both Count I and Count II carry a maximum penalty of life imprisonment. However, had the jury convicted the defendant of Count I – First Degree Murder, this Court would have had no choice but to sentence the defendant to the mandatory minimum life in prison required by the statute. In an effort to grant this Court discretion at sentencing, the government informed the defendant that if she pled guilty to Count II and was sentenced by the Court, the government would dismiss Count I – First Degree Murder and Count III – False Statement. The defendant chose to plead guilty to Count II – Second Degree Murder.

FROM BILL'S STATEMENT OF March 29th at 4:59:

2. Also as I've been saying, the only thing that happened on the prosecutor's part was that he ACQUIESCED in the defendant's unannounced, unilateral, by-herself decision to plead guilty to Count 2 of the indictment.

This is entering an "agreement" to forego a part of your allocution? It's not an agreement to do anything.

Sure, the other counts in the indictment were then dismissed. One would hope. When a trial is ended with a straight-up plea, you don't continue the trial. Had the prosecutor kept right on going, the judge would have called him up to the bench and asked, "Have you been drinking?"

Posted by: Tim Holloway | Mar 30, 2014 1:34:31 PM

Again, Bill, if you want the documents regarding the motion, let me know. It looks like, in another portion of the prosecution's response, there are saying there was no plea agreement (apparently meaning there was no written plea agreement) but a promise by the prosecution to dismiss Count I and Count III (which is a plea agreement as I understand Santobello).

The defense attorney also indicates that the agreement was oral, not in writing. See second excerpt below.

HERE IS ANOTHER PARAGRAPH FROM THE PROSECUTION'S BRIEF:

As reflected at the December 12, 2013, Change of Plea hearing, the Defendant pled to Count II of the Indictment without the benefit of a plea agreement. The Defendant also agreed to waive any double jeopardy rights as it relates to Counts I and III. The government promised to dismiss first degree murder (and false statements), not ignore all the evidence presented at trial in making sentencing recommendations to the Court.

FROM THE DEFENDANT'S MOTION:

(A)In its oral plea agreement with the defendant the government agreed to dismiss Count I of her Indictment, the 1st degree murder count. Nevertheless in its sentencing papers the government has argued that defendant is in fact a 1st degree offender and should be sentenced as such. Accordingly defendant argues that the government has breached the plea agreement. Santobello v. New York, 404 U.S. 257 (1971)(failure of prosecution to keep promise requires either specific performance or permission to withdraw plea). Essentially the government is arguing that the court should reject the plea agreement by asking that defendant be sentenced as a 1st degree offender.

Posted by: Tim Holloway | Mar 30, 2014 1:50:42 PM

Tim Holloway --

With all respect, you are in denial, as the very documents you quote prove.

The prosecutor says (emphasis added): "As reflected at the December 12, 2013, Change of Plea hearing, the Defendant pled to Count II of the Indictment WITHOUT THE BENEFIT OF A PLEA AGREEMENT."

The defense lawyer says: "In its oral PLEA AGREEMENT with the defendant the government agreed to dismiss Count I of her Indictment, the 1st degree murder count...Essentially the government is arguing that the court should reject the PLEA AGREEMENT by asking that defendant be sentenced as a 1st degree offender."

The prosecutor never said, suggested, or implied what you now impute to him, to wit, that there was an "oral" plea agreement. He said that there was NO plea agreement. The defense lawyer says in black and white (and orally) that there was.

Either there was a plea agreement or there wasn't. Somebody's lying. The judge's decision gives you a strong hint as to who it is.

And now that you mention it, there is another lie I see in the defense lawyer's words. He says (emphasis added), "Nevertheless in its sentencing papers the government has argued that defendant is in fact a 1st degree offender AND SHOULD BE SENTENCED AS SUCH."

That is patently false. The federal sentence for a 1st degree offender is death or LIFE IMPRISONMENT. The prosecutor did not argue for either or those things; he argued for a term of years, which CANNOT UNDER THE STATUTE be given for 1st degree.

What the defense lawyer was doing is not "zealous advocacy." It's not a "misunderstanding." It's defense counsel's false claim that (1) there was a plea agreement in any form or fashion; (2) part of the non-existent plea agreement included the prosecutor's "promise" not to argue premeditation; and (3) by inescapable implication, that the prosecutor went back on his word, and, like anyone who goes back on his word, is dishonest and dishonorable.

None of that is true. One of these lawyers is indeed dishonest and dishonorable, but it's not the prosecutor.

I will stand to be corrected when you supply a finding BY THE COURT that this case was resolved by a plea agreement between the lawyers, oral, written or telepathic. Until then, I'm hardly going to count defense counsel's writings as anything other than later lies to cover earlier ones.

If I went to the lengths you're going to in order to defend some prosecutorial stunt like this, I'd be laughed off the board.

Posted by: Bill Otis | Mar 30, 2014 3:32:39 PM

Give it up, Tim. You'll never get Otis to give an inch once he's got the bit in his teeth. And you will never beat him in rhetorical gymnastics.

I don't know how it could be any more obvious that there was *some* kind of "agreement" here (or at least that there is a highly plausible legal and factual argument for the existence of an agreement). The prosecution itself is saying it told the defense it would dismiss Count I if the defendant pled guilty to Count II. After that, the defendant did plead guilty to Count II, and the prosecution did dismiss Count I.

I really think we are dealing with a definitional problem here. As far as I can tell, when the prosecution says there is no "plea agreement," they mean there were no *additional* terms agreed to, either formally or by implication. And that may well be true. But then the question of whether there was a "Plea Agreement" really comes down to whether you take that term to refer to the typical, formal agreement, in writing with multiple terms, *or* if you would apply that term to any situation where the government dismisses a higher charge in exchange for an "open" plea to a lower charge. In other words, does the term Plea Agreement (TM) include every *agreement* of any kind between parties that involves a plea, or does it refer only to the narrower category of cases where there is a written document, filed with the court, usually involving terms additional to the plea itself such as sentencing recommendations, positions on the applicable guidelines, etc.? From a definitional viewpoint, I could see either side of that argument.

The defense, of course, is taking the former view. But it doesn't really matter. The question from the defense side is not really whether the thing that happened is called a Plea Agreement (TM). The question is (a) whether a contract/agreement was created when the prosecution informed the defense that it would dismiss Count I upon a plea to Count II, and the defense then entered such a plea (i.e., was this just a series of events, or was it an offer and acceptance with meeting of the minds); and (b) if such an agreement was created, whether it carried an implied term that the prosecution would not seek to argue premeditation (because premeditation was the primary distinguishing factor between Count I and Count II, and the prosecution arguably was agreeing to take that off the table, at least as regarded the guilt-phase determination as an element of the crime).

The defense argues that the legal answers to those questions are Yes and Yes. From the known facts, it seems like this is a plausible, good-faith argument (not necessarily a winning one), while the AUSA's counter-argument ("I never agreed to anything w/r/t premeditation; guilt-phase proof and sentencing material are distinct areas and by declining to offer proof of premeditation to the jury BRD I in no way expressly or implicitly agreed not to raise premeditation as a sentencing factor") also seems plausible and in good faith. If I agree to buy your watch at "the going rate," and the next day George Clooney unexpectedly wears the same watch to the Oscars, tripling the market value of the watch, we can legitimately disagree about whether the legal effect of the term "going rate" is limited to reasonable expectations at the time of the agreement or if I assumed the risk of a massive market inflation. And we can make these contrary arguments as to the legal effect of the essentially undisputed facts without either one of us acting in bad faith or being a liar.

Nevertheless, Otis's gambit here seems to be to: (1) adopt, without comment, the narrower view of Plea Agreement (TM); (2) claim -- correctly -- that the prosecution still denies the existence of a Plea Agreement (TM); and (3) claim that there is therefore no evidence of *any sort of agreement* and that therefore the defense lawyer is clearly a liar. I have no problem with steps (1) and (2). Make your arguments, use your lawyer's rhetorical tricks as we all do. That is part of the job - How to Do Things with Words! In fact, that is similar to what defense counsel seems to be doing in this case as well. I don't see anything in the actual excerpts of argument where the defense counsel calls the AUSA a liar. His position is that by doing the things that the AUSA *admits* he did (i.e., stating that he would dismiss Count I upon a plea to Count II), he legally bound himself to certain implicit conditions. I don't see anywhere where defense counsel says "AUSA _____ told me expressly he would not argue premeditation." (If he did say that, and it's not true, then I will retract this comment.)

No, my problem, as usual with Otis, is with Step 3. Having posited a debatable but plausible premise, and a conclusion flowing from that premise, he accuses anyone who disputes that conclusion of being a BIG FAT LIAR (eliding both the debatability of his own original premise and the fact that the other party may be relying on a different, also plausible premise that would support their different conclusion...). I don't see the defense counsel here recklessly accusing a fellow lawyer of being a liar; that's what I see Otis doing. He won't refer this for discipline because he would be subject to reciprocal discipline if he actually made the arguments he's been making in this thread to a discipline board (i.e., accusing a fellow lawyer of misconduct for doing his job and arguing a colorable legal and factual claim on behalf of his client).

Oh, and don't hold your breath for an explanation/apology from Otis for jumping up and down about the defendant's "unannounced, unilateral, by-herself" plea -- a factual account that now seems to have been a complete hyperbolic fiction. I guess the prosecution's own statement on that issue was irrefutable even with BO's considerable skills. So, following another page from the playbook, he ignored it and hoped his bombast on other fronts would allow the omission to go overlooked.

Posted by: anon | Apr 3, 2014 11:34:57 AM

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