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March 26, 2014

Killer bride Jordan Graham moves to withdraw murder plea claiming feds breached deal in sentencing arguments ... UPDATE: motion denied!

I am intrigued and amazed to learn via this local article, headlined "Newlywed asks to withdraw guilty plea in husband's murder," that the Montana killer bride has now formally moved to withdraw her guilty plea based on the assertion that the federal prosecutors' sentencing arguments breached the (mid-trial) plea deal struck between defendant Jordan Graham and the feds.  Here are the details: 

The Kalispell newlywed accused of pushing her husband off a cliff last summer asked to withdraw her guilty plea late Tuesday, arguing the agreement she accepted was “illusory” and a “hollow formality.” Jordan Graham, 22, was to be sentenced in Missoula’s U.S. District Court Thursday for the July murder of 25-year-old Cody Johnson along a trail in Glacier National Park. It’s now unclear if the sentencing will proceed as scheduled.

First, U.S. District Judge Donald Molloy will have to rule on Graham’s motion to withdraw her guilty plea. If he accepts the motion, a new trial will be scheduled.  If he rejects her motion, the sentencing could continue as planned.

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” — merely a means by which prosecutors avoided a possible manslaughter verdict, Donahoe said.

Graham accepted the plea agreement near the end of her trial, pleading guilty to second-degree murder.  In exchange, prosecutors agreed to drop a first-degree murder charge — and its contention that Johnson’s death was premeditated.

For a first-degree murder conviction, prosecutors needed to prove there was intent on Graham’s part; intent is not required for a second-degree murder conviction.  “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.

Then came the sentencing memorandum, where prosecutors argued that Graham planned the murder of Johnson on the night of July 7 and should spend the rest of her life in prison  — or at least the next 50 years.

Graham has admitted pushing her husband of eight days off a cliff in Glacier Park during an argument. She was experiencing doubts about their marriage, she said, and shoved Johnson during a heated exchange.  Her intent was not to kill him, Graham said, but rather an instinctive response to Johnson grabbing her arm.

In his sentencing memorandum, assistant U.S. attorney Zeno B. Baucus honed in on evidence that Molloy expressly prohibited from December’s trial.  That evidence included a long, black cloth found in the vicinity of Johnson’s body, which prosecutors theorized Graham used to blindfold her husband before pushing him off a cliff along Glacier Park’s Loop trail. Graham also took away her husband’s car keys, prosecutors contended, and removed his wedding ring before the altercation....

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. “Therefore, the defendant argues that the government’s offer for a plea agreement was and is illusory and in bad faith.”

I expect the government will file a full-throated response to this motion sometime today. And I am sure the government will stress that, by taking a plea to the lesser-charge of second-degree murder, Garaham got an extraordinarily important sentencing benefit: the sentencing range for that charge is a range of 0 to life, whereas a first-degree murder conviction carried a mandatory LWOP sentence. I fully understand why Jordan Graham and her lawyer are troubled that the feds are making a forceful sentencing argument for an LWOP sentence, but I am not sure why its sentencing advocacy alone provide a basis for withdrawing a seemingly otherwise valid (and valuable) plea.

I have been obsessing about the upcoming sentencing in this case with my sentencing students because, as noted in this recent post, I think it provides a great and accessible tutorial on federal plea bargaining and sentencing realities. Little did I expect that this live tutorial would take on this interesting extra lesson.

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

UPDATE:  As this AP article reports, prosecutors do not agree that they breached any promises in this case:

Prosecutors responded Wednesday that they agreed to dismiss the first-degree murder charge but did not agree to ignore other evidence offered at trial in recommending a sentence of 50 years to life.

Assistant U.S. Attorney Kris McLean noted that Graham agreed to plead guilty on Dec. 12 without the benefit of a plea agreement. At that time, U.S. District Judge Donald Molloy reminded Graham that her plea meant she could face a life sentence in federal prison.

The federal government is not limited by the defendant’s description of events in recommending a prison term, McLean wrote in his response Wednesday. He argued the court can consider any information about the background, character and conduct of the defendant when determining a sentence.

The government’s sentencing memo recommends the court consider an upward variance to a sentence of life in prison, but no less than 50 years, in part because “the circumstances surrounding Cody’s death closely resemble conduct that is often associated with a first-degree murder conviction.”

Prosecutors said the fact that Graham was unhappy in her new marriage, that she somehow ended up with the only set of keys to the car Johnson drove into the park on July 7 and the fact that she texted a friend saying if the friend didn’t hear from her at all again that night, “something happened,” indicated Graham was “planning and considering murder.”

Graham is scheduled to be sentenced Thursday by Molloy in Missoula. It was not clear how Graham’s motion might affect the sentencing schedule.

ANOTHER UPDATE:  Unsurprisingly, as this local article reports, the "judge has denied a Kalispell newlywed's request to withdraw her guilty plea for the murder of her husband in Glacier National Park last summer." Here is more:

U.S. District Judge Don Molloy began Thursday's sentencing hearing by considering Jordan Linn Graham's motion to withdraw her guilty plea to second-degree murder....

Molloy ... 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. 

March 26, 2014 at 11:58 AM | Permalink


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In order to know if the prosecution breached the plea bargain, one has to know (1) the text of the plea bargain, and (2) exactly the words the prosecutor spoke and wrote at sentencing.

More broadly, I strongly suspect that what's really going on here is that the defendant runs hot and cold (as she did about her marriage), and now has cold feet about her decision to enter a plea.

Fine. If I were the prosecutor, I would acquiesce in the motion (while not in any way agreeing with the argument it makes). I would then tell defense counsel that his client has five minutes to either (1) withdraw the motion and apologize, or (2) she's going right back on trial for first degree murder. The government will entertain no more plea offers, and will allocate for the maximum sentence. And we're now down to four and three-quarters minutes.

If the lady wants to push her husband off a cliff and then play games in court, OK, that's her decision to make. But decisions have consequences.

Posted by: Bill Otis | Mar 26, 2014 12:37:09 PM

In order for this motion to be successful I would think the plea document would need to specifically state that the prosecutor would not make this argument at sentencing. And if it did say such a thing I would be amazed that they would then go ahead and do so, given that I would be very surprised to learn that the plea document does in fact contain such a waiver.

I would actually think this move highly counterproductive, after all the judge has seen all the evidence too, if there's enough there for a first degree murder conviction I would think this sort of game would just annoy the judge. If there's not enough there for such a conviction (and especially if there's not enough there to convince someone by a preponderance) I would think it far better to just make that argument.

Posted by: Soronel Haetir | Mar 26, 2014 1:25:57 PM

Off topic, except to the degree it is a murder case, another notable late series of appeals (Ferguson) that were rejected on bare 5-4 grounds before he was executed.

Posted by: Joe | Mar 26, 2014 1:52:57 PM

| 'I pushed him and took off': Newlywed bride's 'confession' to shoving husband of EIGHT days off a cliff is played in court
as it's revealed his body was found with an eight-inch gash on his forehead |

• This came after Graham spent days telling different stories to police …
• Coroner told the court that Johnson, 25, was found at the bottom of a ravine in Glacier National Park without his wedding ring
• He also had lacerations on his forehead and legs
• Deputy coroner Richard Sine also testified that Johnson's shoes were found some distance from his body

Graham, 22, has plead not guilty to murder and lying to authorities
[“The prosecution was planning on showing the taped interviews with the court room but since she accepted the plea, the jurors did not have to consider the evidence. ]

| “Earlier in the day, defense attorneys wrapped up their case without testimony from Graham.
Instead, they showed the jurors pictures and videos of Graham smiling as she had her hair done
and tried on her borrowed wedding dress, then videos of the June 29 wedding
and the couple's first dance.” |

Pre-meditated murder. + Lying to cover it up.
Let a jury decide, Killer Graham.

-- Daily Mail UK Online, By DAILY MAIL REPORTER and ASSOCIATED PRESS, 12/12/13|
-- Daily Mail UK Online, By MEGHAN KENEALLY and ASSOCIATED PRESS, 12/16/13 |

Posted by: Adamakis | Mar 26, 2014 1:56:28 PM

“Graham has said she and Johnson argued in the park and he accidentally fell when she tried to remove his hand from her arm.” … versus …
“Graham concocted a story that her husband of eight days had gone off with friends and had not returned.”
“Initially told police multiple stories and changed her version of events”

One story: Two days after Cody Johnson went missing, his wife Jordan Graham told police that he went on a joyride with friends from out of town

“New lead”: The next day, she went to the police station with her mom and told them about a fake email from a person named 'Tony' that she received,
when really she created the account herself.

More than a week after death: “So I let go and I pushed and he went over and then I took off and went home,” she said in the FBI recording.

-- Mail UK Online, By MEGHAN KENEALLY and ASSOCIATED PRESS, 12/16/13 |

Posted by: Adamakis | Mar 26, 2014 2:01:03 PM

Adamakis, what is your point? Is it that only a person guilty of 1st degree murder would lie and concoct stories? A person guilty of 2nd degree would not? Neither would someone guilty of manslaughter? I'm not saying she is innocent, but innocent people act guilty at times due to the accusation, something to do with the uncertainty principle, I think.

The issue now is if the government can have its cake and eat it too, like judges and acquitted conduct.

Posted by: George | Mar 26, 2014 3:00:35 PM

George: how are they having their cake and eating it too? Unless we see a plea agreement in which the government specifically agreed to refrain from arguing that she acted with premeditation, it's free to argue whatever it wants to the sentencing judge. She (presumably) knew that when she pled to murder 2 the statutory range permitted a LWOP sentence. She pled to murder 2 because it gave her a possibility of a less-than-LWOP sentence, which murder 1 would not.

Alternatively, the argument goes the other way too: if the government is prevented from arguing that she acted with premeditation, the Defendant gets her cake and eats it too. That is, she gets the chance for a less-than-LWOP sentence, but the government can't argue that LWOP is appropriate?

Posted by: KL | Mar 26, 2014 3:33:22 PM

As is well-known INAL but the argument that Bill makes confuses me. By definition second degree murder means that it wasn't premeditated. So why would the text of the plea agreement need to restate the obvious? How can the government on one hand agree to a second degree murder charge which by definition means no premeditation and then in the sentencing memo argue for premeditation? That seems odd. Is this some type of acquitted conduct argument? I don't get the logic.

Posted by: Daniel | Mar 26, 2014 3:45:49 PM

"That is, she gets the chance for a less-than-LWOP sentence, but the government can't argue that LWOP is appropriate?"

But I do not understand that argument to be that the government cannot argue for LWOP. Only that the government cannot argue for LWOP based upon premeditation. She's upset not about the ultimate sentencing outcome but about the basis for that sentence.

And I can see why at a psychological level that matters to her. To her it was all a horrible accident so she doesn't want anything in the public record to suggest otherwise.

Posted by: Daniel | Mar 26, 2014 3:49:41 PM

"To her it was all a horrible accident" -- Daniel
-- Or so she now claims, but wait for adjustments.

Let her convince a jury that she didn't plan it.
Let her convince them of such, though she pushed a man who was facing away, over a "sheer" cliff-face.
--"the body was found in an area of the park so steep and rugged that a helicopter had to be used in the recovery"--

There is also a potential blindfold, which the defence sought to suppress at an earlier stage.

You're of course right that the plethora of lies do not establish Murder 1. Graham's particular doozies
and frivolous behaviour after the death, do support an assessment of her as exhibiting malignity and depravity.
[These may be more consistent with a pre-meditated murderer than an accidental hot-head.]

Posted by: Adamakis | Mar 26, 2014 4:22:24 PM

KL, Daniel added some details worth noting and the elements of the charge I think are key. With a guilty plea, the defendant is pleading guilty to the elements of whatever statute she is pleading guilty to, nothing more. As Danial argued, the element of premeditation is not in a 2nd degree murder charge. I might even try to argue that there is a separation of powers argument here as well, in that (1) the executive branch in the form of the prosecutor is trying to legislate a nonresistant element into the 2nd degree language, and (2) in the same way the executive is trying to find facts not found by the judge or the jury.

Adamakis, we know the ledge was dangerous enough to kill him because it did kill him. That in no way proves how it happened.

You also claim: "Let her convince a jury that she didn't plan it."

Too often people forget what country this is and that we are a nation of laws, not opinions. See, there's this little thing about the defendant not having to prove anything. That is the government's burden. Maybe the government could prove premeditation, but you have it backwards. I would agree that the system evolved into one of the presumption of guilt by the time a jury is empaneled. Or as Supremacy Claus always argues, when charges are filed.

Posted by: George | Mar 26, 2014 5:23:22 PM

Sorry, nonresistant should be nonexistent. Normally I would just assume readers could figure it out but this one is way out there.

Posted by: George | Mar 26, 2014 5:33:39 PM

This kind of thing comes up relatively often: most often, in my experience, when a (state court) defendant who actually possessed/delivered a certain quantity of drugs pleads to a charge involving a lesser amount or no amount at all: the prosecutor then attempts to argue the amount at sentencing, and the defendant's counsel objects, saying "he didn't plead to that." FWIW, in the prosecutor's office in which I used to work, our stock plea agreement contained a clause (with a Blakely waiver) that the parties were free to argue/present evidence on any facts that would either aggravate or mitigate the sentence, with the Court to determine their existence if disputed.

Posted by: GP | Mar 26, 2014 7:01:00 PM

"Adamakis, we know the ledge was dangerous enough to kill him because it did kill him.
That in no way proves how it happened."
-- Since she lied and tried to throw authorities off the trail of where he had fallen,
she doomed him to death.
Is this not equivalent to the willful indifference to human suffering shown by leaving someone to die in a trunk, in the freezing cold,
or bleeding to death?

Posted by: Adamakis | Mar 26, 2014 7:39:52 PM

The Prosecution is bound by their agreement, but the defendant is not entitled to more than the agreement says. Some jurisdictions do, however, hold that provisions in the agreement are to be construed against the government is ambiguous. If the only argument here is the government violated the spirit of the agreement, it's certainly not a valid justification to withdraw the plea under Santobello.

I'm going to go with the theory the defendant got cold feet. I could see some outrage for violating the spirit of an agreement, but the Judge knows the Prosecution thinks she premeditated. Even if the government literally said nothing on the issue, the Judge could still think about this. It's really a small issue unless the Judge is inclined to do this anyway.

Posted by: Erik M | Mar 26, 2014 8:00:30 PM

so we have another typical govt lier.

that old saying about used car salesman now applies to govt agents.

"How can you tell they are lieing. Their lips are moving"

Posted by: rodsmith | Mar 26, 2014 8:09:59 PM

of course this comes back to what I've said over and over and over. Any plea agreement that does not plainly state what the sentence will be has been written by a lawyer who is either lazy, chicken, or retarded.

this takes even more power now that the public is learning about the govt's illegal use of aquitted or uncharged conduct.

Posted by: rodsmith | Mar 26, 2014 8:11:33 PM

Aw, time served is close enough for government work.

What's new, the Feds have not stuck to their agreement. They will do most anything to avoid a trial.

I'm sure the lady did a it more than just a push in jest, over her uncertain new husband.

Posted by: Midwestguy | Mar 27, 2014 12:46:29 AM

Two easy fixes :

1. If in doubt , when asked whether , answer “I am uncertain.” and NOT “I do.”

2. If one does go forward with the marriage , kindly refrain from pushing spouse off a cliff or any other conduct likely to cause death or serious injury .

OFF TOPIC , but within six months (perhaps within six weeks) my dearest spouse of approaching 25,000,000 minutes of marriage , threw a glass across the kitchen which hit the sink and shattered .

We both forget what conduct on my part triggered the glass throw , but whatever it was , I did not do that again ☺ .

She later stated that she threw it to get my attention and not to injure , albeit much MUCH kinder than pushing me off a cliff .

Posted by: Docile Jim Brady - Columbus OH 43209 | Mar 27, 2014 10:29:50 AM

The prosecutor says there was no plea agreement. The defense lawyer says there was a plea agreement and that the prosecutor broke it.

One of these gentlemen is lying.

If I'm the judge, I'm doing two things. First, determine who is lying. Whoever it is gets found in criminal contempt and fined $10,000, which must be paid immediately and from his own pocket. He is also to refer himself to the state bar for discipline.

Second, no matter who is lying, the defenant's motion gets granted, she goes back on trial on the original charges, and the case will go to the jury without any further negotiation between the lawyers. The Constitution does not provide for plea bargains; it provides for trials. Get on with it.

If the defendant gets convicted, too bad. She's the one who made the motion. But her game-playing and repeat lying during this matter will be heavily considered at sentencing. If she gets acquitted, too bad. That' the was the cookie crumbles.

Anyone have a problem with that solution?

Posted by: Bill Otis | Mar 27, 2014 12:23:19 PM

"... she goes back on trial on the original charges, and the case will go to the jury..."
Sounds good to me.

Posted by: Adamakis | Mar 27, 2014 12:28:52 PM

Bill: Not I. I support that solution.

Posted by: Daniel | Mar 27, 2014 2:42:55 PM

Adamakis and Daniel --


Posted by: Bill Otis | Mar 27, 2014 3:20:26 PM

Latest update- 30 years. (25.5 if she doesn't lose good time).


Posted by: Z.Y.U. | Mar 27, 2014 3:23:42 PM

Re: Most recent Update

My goodness! There was no plea agreement after all, much less one in which the prosecutor agreed not to argue at allocution that Ms. Nicey did it deliberately.

So the defense lawyer was lying. Imagine that.

And lying in a particularly disgusting form, i.e., by accusing opposing counsel of HIMSELF being a liar.

Say it ain't so, defense lawyers!!

I mean, hello, how many times have we heard in the comments section that (1) the defense lawyer is the guy who stands up for the Constitution to protect the Wrongly Accused and Badly Mistreated Defendant from the (2) Dastardly Prosecutor, who fabricated the charge only to coerce a guilty plea, then hid the evidence proving innocence.

My goodness.

P.S. Before all you defense types go off in a huff, I'll say again theat most of the defense lawyers I know are decent people, and some are heroic. I helped train many when they started off as AUSA's. But I have also seen types like the defense lawyer in this case (with whom I have indirect experience).

If I were more naïve, I would hope that some of the aggressive, holier-than-thou defense lawyers who post here would learn something from this case and cool their jets. But I know full well it's not going to happen, because there is a segment of the ideological defense bar that is simply incapable of introspection about how far they're willing to stretch -- and break -- the truth in behalf of the Much To Be Worshipped Client.

Posted by: Bill Otis | Mar 27, 2014 3:40:38 PM

bill shame on you.

"Re: Most recent Update

My goodness! There was no plea agreement after all, much less one in which the prosecutor agreed not to argue at allocution that Ms. Nicey did it deliberately."

if there was no plea agreement why hasn't there been a trial?

plus there's there!


and this!


notice this part especially!

"In exchange for the plea to second-degree murder, prosecutors agreed to drop a first-degree murder charge and a count of making a false statement to authorities.

First-degree murder means a crime is premeditated."

sorry bill but based on those and this!

"“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” — merely a means by which prosecutors avoided a possible manslaughter verdict, Donahoe said.""

I still say the DA is the lier in this case and the judge was either lazy or retarded enough to go along with it. She wasn't convicted of "premeditated murder" yet he sentenced her as if she was.

Sorry he's now the criminal and not her.

Posted by: rodsmith | Mar 27, 2014 4:39:02 PM

rodsmith --

The prosecutor offered a deal, but the defendant rejected it, meaning that there was no deal. She then, pretty much in mid-trial, pleaded straight up to second degree without an agreement.

Posted by: Bill Otis | Mar 27, 2014 5:20:09 PM


What makes you so quick to accuse the defense attorney of lying about the existence of a plea agreement? According to the defense's motion to withdraw the guilty plea, there was an oral agreement to plead guilty to the second degree murder count in exchange for which the government would move to dismiss the first degree murder count. The government's sentencing memo says the same thing: "The Defendant proceeded to trial, but later pled guilty to Count II of the Indictment, Second Degree Murder, pursuant to 18 U.S.C. § 1111, prior to closing arguments. In consideration of her plea, the United States intends to dismiss Counts I and III at sentencing." (Unfortunately, the government's motion opposing withdrawal of the guilty plea isn't available at any of the linked articles, so I have no idea exactly what it said.) I find it strange that there was no written agreement, but it sounds like there was at least an oral one, specifically under Rule 11(c)(1)(A).

Posted by: Brad Bogan | Mar 27, 2014 5:48:44 PM

Brad Bogan --

This is your quotation from the government's sentencing memo (which I'll accept at face value): "In consideration of her plea, the United States intends to dismiss Counts I and III at sentencing."

If there had been an agreement, the sentence would read: "In EXCHANGE FOR the defendant's plea, the United States MOVES to dismiss Counts I and III."

Sure, once the government knows the entry of a judgment of conviction is a done deal, it will move for a dismissal of the remaining counts "in consideration of" the plea and conviction. That is completely different from, PRIOR to the entry of judgment, offering to dismiss the first degree murder charge in exchange for her pleading to the second degree charge.

She pleaded straight up before the jury got the case, and the prosecutor acquiesced in it. That may have been wise or unwise on his part, but acquiescing in a defendant's plea is not a plea agreement, and still less is it what the defense lawyer falsely claimed, i.e., that the prosecutor agreed, as part of this non-existent "deal," not to argue at allocution that the killing was deliberate.

And the idea of an "oral agreement" in a federal murder case is too preposterous to even talk about. I was an AUSA for 18 years. Such a thing does not exist. If a prosecutor claimed an "oral agreement," you'd be laughing out loud, and I would be right there with you.

Posted by: Bill Otis | Mar 27, 2014 6:37:11 PM


It appears from other documents that there was a plea agreement and that it may not have been reduced to writing because the change-of-plea hearing happened in the midst of trial right before the jury was to be charged.

From the minute entry on the docket (available here: http://www.plainsite.org/dockets/index.html?id=2561993):

"Court in recess for settling of jury instructions. Counsel in chambers; parties advise that agreement has been reached; parties instructed to disclose plea agreement in open court. Court resumes outside of jury presence for CHANGE OF PLEA hearing. Defendant sworn in, answers questions put forth by Court. Court reviews charges, advises Defendant of rights, rights waived by pleading guilty, and maximum possible penalties; supervised release and sentencing guidelines reviewed. AUSA McLean states elements - Defendant to plead guilty to Count 2, waiving double jeopardy rights on Counts 1 and 3; govt will move to dismiss Counts 1 and 3 at sentencing. No written plea agreement filed. Counsel Nelson motions for change of plea; Court grants motion to withdraw plea. Defendant changes plea to guilty of Count 2 of Indictment. AUSA to rely on proof in record. Court finds Defendant competent, and that plea is made voluntarily supported by facts; plea accepted. Defendant adjudged guilty of offense."

And here are the relevant passages from the government's opposition to the motion to withdraw the plea (available here: http://www.nbcmontana.com/blob/view/-/25177630/data/1/-/q08ccmz/-/Government-s-response-to-motion-to-withdraw-plea.pdf):

"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."

"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."

Why the goverment's opposition says there was no plea agreement despise what appears to be one doesn't make sense to me, but perhaps it was a reference to there not being a written agreement.

In any case, if this wasn't a plea agreement, then what was it? And can you still accuse defense counsel of lying about the existence of one?

Posted by: Brad Bogan | Mar 27, 2014 7:26:06 PM

Brad Bogan --

"In any case, if this wasn't a plea agreement, then what was it?"

It was the prosecutor's acquiescence to the defendant's decision to plead guilty straight up to the second degree count, acquiescence given considering, or "in consideration of" if you prefer, her unilateral, suddenly announced decision to bite down on second degree murder, fearing, understandably, that otherwise she was headed for a conviction on first degree.

Since the prosecutor explicitly denied the existence of a plea agreement, he must be -- in your view -- lying, right?

C'mon, Mr. Bogan. The resolution of a federal murder case is not done in a scattershot fashion. This is not middle school. Donahoe had to manufacture a reason to get his client back into trial when she got cold feet about her spontaneous plea. There being no legitimate reason -- she just wanted to back out -- he had to come up with one, and what he came up with was a fabricated "agreement" no one has ever seen.

Finally, please go back to Doug's original entry. It states (emphasis added): "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'..."

December's plea agreement? A plea agreement arrived at three months ago never got put into writing? And then there was a trial anyway??

Give it a rest. Donahoe is a liar, but for some reason you want to give him cover and pretend, as he did, that, instead, the prosecutor is a liar.

Is this what defense work has come to?

Posted by: Bill Otis | Mar 27, 2014 8:02:49 PM

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

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.

Posted by: Bill Otis | Mar 27, 2014 9:53:54 PM


"December's plea agreement? A plea agreement arrived at three months ago never got put into writing? And then there was a trial anyway??"

Graham pleaded guilty on day 4 of her trial, after the close of all the evidence and before the jury was charged. There was no "trial anyway" after that point. I initially found it odd that there was no written plea agreement, but it makes more sense after looking at the docket entry I excerpted. The change-of-plea hearing happened that day; the court accepted her plea and found her guilty that day. Also that day, sentencing was set for today, March 27. It doesn't surprise me that a plea agreement that had already been accepted, together with a finding of guilt, would not later be put into writing. You were an AUSA yourself for many years, so I don't need to tell you that things don't always happen "according to Hoyle" in federal court, particularly not in trials.

I'm not sure why you're so hostile to the notion that there was a plea agreement. Apart from that one sentence in the government's response to the motion to withdraw the plea, everything else points to a plea agreement. The docket entry from that day of trial says that the "parties [were] instructed to disclose plea agreement in open court." Both parties' pleadings, as well as the minute entry, all describe an 11(c)(1)(A) agreement: the government agrees to dismiss some counts in exchange for the defendant's plea of guilty. Not to mention, why on Earth would Graham have agreed to plead guilty without an enforceable agreement that takes mandatory life off the table?

The only thing that suggests otherwise is that line in the government's opposition that says Graham pleaded guilty "without the benefit of a plea agreement." I don't know why you would assume that I think the AUSA was lying when he wrote that. I don't. Maybe the AUSA modified an opposition from another case and simply neglected to change that language to reflect what happened in this case. Maybe he just made a mistake. I have no idea, and have no reason to think something nefarious was afoot.

The most likely explanation to me is that the parties did not share the same understanding of exactly what they were agreeing to (perhaps because of the timing and circumstances of the change-of-plea). And I don't even read the government's pleadings to be claiming that there was no agreement at all (notwithstanding that one line), but rather that its agreement to dismiss the first degree murder charge did not preclude it from arguing for an upward variance from the Guidelines range on the ground that it was in fact premeditated.

Anyway, the best way to resolve this would be to read the transcript of the change-of-plea hearing. According to the docket, it won't be publicly available until April 15.

Posted by: Brad Bogan | Mar 27, 2014 10:31:36 PM

Brad Bogan --

"[W]hy on Earth would Graham have agreed to plead guilty without an enforceable agreement that takes mandatory life off the table?"

Because she pled to second degree, for which there is no such thing as mandatory life.

You're grasping at straws. You're not going to produce a plea agreement, on April 15 or ever, because it doesn't exist.

The reason you keep pushing this against common sense and the experience of everyone who practices in federal court is, apparently, that you're simply unwilling to admit that a defense lawyer is capable of lying about or smearing a prosecutor.

I got news. They are fully capable of that and a good deal worse, from money laundering to murder.

I'll bet you $100 here and now that the defense never produces a plea agreement. I'll share the proceeds with Gary Proctor, who has this figured out correctly.

Are we on?

Posted by: Bill Otis | Mar 27, 2014 11:08:55 PM


First let me thank you for your gracious and civil responses. It's refreshing to engage in an exchange on the 'net these days where both parties actually address the substance of the other's comments without resorting to strawmen, ad hominem, goalpost-moving, impugning the other's ethics and supposed motivations, etc. Sadly, as you've mentioned here before, there's far too much of that nonsense polluting otherwise-engaging blawg comment threads. This has been a breath of fresh air.

That said, we are not on. Please forgive me if I decline an offer to enter into an agreement with someone who goes to the mat to deny, against the balance of publicly-available information, that a thing that looks, walks, and quacks like a duck can possibly be a duck. Oh, and that anyone who dares to suggest otherwise is obviously a tribal, agenda-driven liar. I like pork, but I ain't gonna buy a pig in a poke.


P.S. By "duck," I mean "agreement." I wouldn't want to be accused of "lying," after all.

Posted by: Brad Bogan | Mar 28, 2014 12:51:05 AM

Brad --

I agree that our exchange has been a relative breath of fresh air. Not once have I been accused of so abusing my children that they had a life barely capable of being "endured." Still, Greg could chime in any time. The new standard here is that, if you're pro-prosecution, slurs about your family are standard stuff.

You say: "Please forgive me if I decline an offer to enter into an agreement [to bet] with someone who goes to the mat to deny, against the balance of publicly-available information, that a thing that looks, walks, and quacks like a duck can possibly be a duck."

Of course if it's the delicious duck you take it to be, then, when I bet it's really a turkey, you'll clean house and have a nice $100 bucks to boot. So let me encourage you to tale the bet!! I'm always looking for ways to help along the younger generation.

On the other hand, my angel side tells me to warn you of the bet.

Brad, my man. This is how it is. There is no plea deal. There never was. The prosecutor OFFERED one in December and Donahoe wouldn't give it the time of day. His huffy client still wanted a trial. No deal for her with some sleazebag from the USAO!

The day the trial started, there wasn't even a basis of negotiation, much less actual negotiation, and still less a deal. As things went downhill for Ms. Nicey over the days of the trial, she panicked and spontaneously pled straight up to second degree. She did not ask for or get the prosecutor to insulate her from mandatory life because, contrary to what you have said, SHE DIDN'T NEED TO. THERE IS NO MANDATORY LIFE for second degree. Simply by pleading straight up to murder two, she automatically avoided what you erroneously think she had to get the prosecutor to agree to avoid.

But you can still get a real long sentence for murder two, and she was fretting about that. So she changed her mind AGAIN and told Donahoe she wanted a trial after all.

Problem: Under the rules, once you knowingly offer a plea to the court, you don't get to just walk away from it without a solid reason. "I changed my mind" has never been considered such a reason.

So something else had to be ginned up. Donahoe went for the old standby: Fabricating a claim that the prosecutor actually did agree to a bargain, and in the bargain said he would not argue that the murder was deliberate -- but, gol dern, now he wants to make that argument, meaning that he's a lying Nazi thug and, more to the point, that he breached what's in the bargain, so the bargain's no good, so I get to have my trial after all.

But the judge, who had seen all this, knew Donahoe was lying and that the prosecutor was telling the truth. That's the reason the judge denied Dohahoe's motion and proceeded to sentence, as the prosecutor wanted. Can you suggest some other reason it got denied?

Posted by: Bill Otis | Mar 28, 2014 2:48:01 AM

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