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February 13, 2017

Is due process violated when a plea is taken and sentence imposed on a nearly dead-drunk defendant?

I am always eager to find funny sentencing stories, but the sentencing stories that might seem funny are really never that funny.  This Omaha World-Herald article, which prompts the question in the title of this post, is one of those not-really-funny stories.  The article is headlined "Court accepts guilty plea from Omaha woman too drunk to stand, sparking concerns due process was violated," and here are the particulars:

Douglas County Judge Lawrence Barrett convened court on a Thursday morning in early February, 15 cases on his docket. The first: A 32-year-old Omaha woman accused of violating the probation term she had been given for reckless driving.

A month after Barrett had placed her on probation, Sarah E. Carr was arrested in Lincoln on suspicion of driving drunk.  Officers said her blood-alcohol content was over .15. Hence the probation violation.  Hence the Feb. 2 hearing.  Barrett called out Carr’s name.  Her aunt approached. “Your Honor, Sarah is here, but she’s passed out in the car.” Barrett: “She’s passed out in her car?”

After some discussion, the aunt and a court official went to the vehicle, pulled out a drunken Carr and loaded her into a wheelchair. What happened next shocked longtime legal observers.  Judge Barrett allowed the woman, plopped in her wheelchair, to plead guilty to a probation violation. He then found her guilty and sentenced her to 90 days in jail.  And no one protested.

After Carr received her sentence, deputies administered a breath test. Her blood-alcohol content measured .44 — 5½ times the legal limit for driving, and a level so high that it could lead to death, according to toxicology experts.

Her barely conscious plea has caused a stir in the courthouse, prompting concerns about what was done to preserve the woman’s constitutional rights to due process. Under the Fifth Amendment, a defendant must “knowingly, willingly, intelligently and voluntarily” enter a plea.  Carr has since told others she has little to no memory of being in court.  (Attempts to interview Carr at the jail last week were unsuccessful.)

After The World-Herald inquired about the case, Deborah Lee, a 16-year Douglas County public defender who represented Carr, resigned.  Douglas County Public Defender Tom Riley confirmed that Lee resigned but declined to detail reasons.  Carr is far from the first defendant to show up drunk at court — especially in county courtrooms where DUIs and other drunken offenses are heard.

But courthouse veterans say this is the first case they could recall in which the typical protocol wasn’t followed when someone suspects a defendant is drunk.  In other cases, judges have had deputies or probation officers administer a breath test. T ypically, a defense attorney then asks for the case to be delayed.  The judge increases bail or revokes it.  And the defendant sobers up in jail until his or her next court date.

Riley said someone should have put a stop to the Carr hearing. “This certainly isn’t the first person who has appeared in court under the influence,” Riley said. “It was incumbent upon someone in the courtroom — whether it was our lawyer or the prosecutor or the (judge) on their own observation — to at least make further inquiry into her condition.”

Judge Barrett, a 23-year veteran of the bench and a former assistant public defender, said he hopes the woman gets help before she further harms herself. He encouraged a World-Herald reporter to listen to a digital recording of the hearing.  When the reporter asked if Carr was drunk, the judge said: “Not that I know of.” “I questioned her,” Barrett said. “She listened to everything I asked — and responded.”

Barrett’s statement that he didn’t know the woman was drunk raised eyebrows among those who observed the hearing.... An Omaha man, who was among about 30 people gathered in the courtroom, later said he was appalled at the scene, calling it a “miscarriage of justice.” An attorney in the courtroom recalled that the woman appeared “dazed and confused.”...

[Kevin] Slimp, the assistant city prosecutor, could not be reached for comment.  However, Omaha City Prosecutor Matt Kuhse said Slimp has told him that he did not know Carr was drunk. In fact, Kuhse said, Slimp had little recall of anything about the case, other than the woman being in a wheelchair.  Kuhse said city prosecutors often are balancing multiple cases — and often are having side conversations with defense attorneys while another case is being heard.

“When you notice that someone is just not getting what’s going on, we do have an obligation to step in,” Kuhse said. “That being said, I’m not convinced there’s enough evidence to show that the prosecutor should have stepped in in this case. We now know that it was a .44 (blood-alcohol level), but that’s the benefit of hindsight. My understanding is that she answered appropriately to the judge’s questions. It wasn’t like she blurted out ‘banana’ to a yes-no question.”...

Riley said he was “distressed” by the case. “Do I think the result would have been different? Probably not,” he said. “But there’s a right way to do things, and there’s a wrong way to do things. “Shame on us for not doing it the right way.” Riley said he assigned another public defender to visit Carr in jail last week. The new attorney explained to Carr that she probably would succeed if she attempted to withdraw her plea. One reason to try: Riley said his office could have argued for a lesser jail term. Barrett gave Carr the maximum term for that misdemeanor.

Carr was not interested — instead opting to focus on getting better, Riley said. “Mercifully, there would have been options to undo this,” Riley said. “I’m glad that this person wasn’t irreparably harmed. “But there were enough problems with all of this to share blame all around. I’m hopeful this will open people’s eyes up to how we should be doing things.”

February 13, 2017 at 05:36 PM | Permalink


In recent years, I have red about several cases where defendants (or their attorneys) were seriously impaired in the Courtroom during criminal proceedings. In one Federal criminal case, a defendant appeared in Court at 9 a.m. with is counsel to plead guilty. The District Judge asked him the standard questions, including whether he was under the influence of any alcohol or drugs that might impair his ability to understand and participate in the proceedings. Much to the shock of defense counsel, the defendant responded that he was then under the influence of cocaine. The Judge asked the defendant how recently he had used cocaine. The defendant advised that he had used cocaine in his car, in the Court's parking lot, 20 minutes before appearing before the Judge. The Judge asked him why he had done that. The defendant explained that he had been awake all night, partying, because he knew that after he pleaded guilty the Judge would revoke his bond and incarcerate him pending sentencing. The Judge replied that the defendant was correct that he was going to revoke his bond (for violating the conditions of his release, to not use illegal drugs), but he WAS NOT GOING TO ACCEPT HIS GUILTY PLEA THAT DAY BECAUSE HE WAS UNDER THE INFLUENCE OF DRUGS.

In a stranger case, a former Fulton County (Georgia) drug prosecutor turned defense lawyer had devloped his own addiction problems. He had pleaded guilty to drug charges and was awaiting sentencing, but was still practicing law with a valid Georgia law license (it had not yet been suspended or revoked). During proceedings in the Superior Court of Cobb County, while he was representing a client, he appeared to the presiding Judge to be under the influence of drugs. He was disheveled, smelled of body odor, was sweating profusely and could not stand without clutching the lectern for support. The Judge ordered a bailiff to take him into custody and to give him a urine drug test, the results of which revealed the presence of several illegal drugs. The Judge held the attorney in summary criminal contempt in court, for practicing law in Court under the influence of drugs, and sentenced him to serve 5 days in jail. The local District Attorney used the results of the urine test to get a search warrant to take blood from the same attorney, and the results of that test were used to indict him from possession of illegal drugs (in his body). His attorneys filed a Motion to Suppress Evidence, alleging that the Judge violated the attorney's' 4th Amendment right against unlawful searches and seizures by having him taken into custody and compelling him to give a urine sample for testing. Meaning, he was sentenced in Fulton superior Court, based upon his prior guilty plea, and was sentenced to prison. Shortly thereafter, he was disbarred from the practice of law.

Posted by: Jim Gormley | Feb 13, 2017 8:01:34 PM

Lets face it, the judge probably sVed her life and that if someone else. Sometimes being to the letter of the law is inappropriate and this is one of them. Barrett dud a good job.

Posted by: MidWestGuy | Feb 13, 2017 9:50:44 PM

How did it save her life to accept a non-consensual (by any reasonable legal standard) plea? There appears to be clear evidence of guilt without it. Do you think if she was given a chance to sober up that she wouldn't have did the same thing?

Posted by: Joe | Feb 13, 2017 10:08:18 PM


If someone is this determined to end their life we should help them along, not waste resources that could be better used to help someone who actually wants the assistance. That also takes care of the 'saving someone else from the peril the defendant represents' side of the equation as well, if the defendant isn't alive they won't be placing anyone else in peril.

Posted by: Soronel Haetir | Feb 14, 2017 1:24:14 AM

Sorenel Haetir, she "was arrested in Lincoln on suspicion of driving drunk." She was caught while passed out in her car. The interests of third parties are at issue here and if the state isn't to be concerned about them, I'm unsure who they are supposed to be there for.

Posted by: Joe | Feb 14, 2017 9:53:58 AM

I almost understand the defense attorney's perspective that he was trying to avoid his client's bond from being revoked (which it almost certainly would be). But the significant jail time more than offsets that risk and there is no way to conclude she was competent to plead.

Posted by: Erik M | Feb 14, 2017 11:30:21 AM

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