Contractor Who Leaked Trump's Tax Return Gets 5 Years In Prison

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:53 Thomas: And welcome to Opening Arguments. This is episode 1017. I'm your host Thomas Smith and that over there is Matt Cameron, crimmigration attorney. How are you doing, Matt?

0:01:02 Matt: The Fifth.

0:01:04 Thomas: I don't know why how you're doing would incriminate you. I just invented a new term for your line of work. Well, that's a pretty incriminating, uh, that's the thing.

0:01:10 Matt: That's my thing!

0:01:15 Casey: Yeah.

0:01:15 Thomas: Oh, man, but yes, okay, assuming you cannot answer that, I'll have to just take that, uh, as asked and answered. But we are joined once again, it's been far too long already, by Casey. How you doing, Casey? Thank you for coming on. I'm excited because we've got a really interesting topic, uh, oh, Matt, this was suggested by a patron, right? Right?

0:01:15 Casey: Hey, good. Thank you for having me again.

0:01:39 Matt: Yes, Justin Fabian, when we put out our call back on March 14th to patrons for things we should talk about. This one really caught my eye because it's a story that I missed, I think a lot of people might have missed it, and it raises a lot questions about plea bargaining and the pleas process generally. And it was on my mind actually after our conversation with Azul, because of course she ended up in a pretty bad situation because she didn't fully understand the immigration consequences of something she was pleading to. And there's a lot to talk about here with pleas generally. But the story that Justin Fabian brought us is about Charles Littlejohn, who was sentenced back in January.

He was a contractor for the IRS who released the Trump tax returns along with a number of other wealthy people. It was actually the basis for two really good stories at a ProPublica, Both worth reading. We'll link in the show notes. Excellent stories. And Justin's question was that his understanding was that Littlejohn had a plea deal for about a year at the time that he turned himself in and took the plea in October. And then in January, the government is recommending the full amount, and the judge sentences him to the five-year maximum under the statute. And I want to talk a little bit about how that happens. A little confusing, it's a little illogical in some ways, it also makes a lot of sense if you break it down,

0:02:01 Thomas: Yeah. Yeah. Absolutely.

0:02:44 Matt: So I think it's worth getting into

0:02:45 Thomas: It seems pretty crazy, I also, it's depressing when you think about like how amazing that journalism was, what went into it, and then seemingly it seems to have no societal impact almost, I don't understand it, like, it's it's really infuriating. But we will get to how that works with not one but two actual criminal law experts and this short break, make sure to go to patreon.com/law to enjoy no ads and the ability to suggest topics like this. And maybe they will become full episodes. So patreon.com/law.

0:02:54 Matt: Yes, yes yeah

0:03:19 Thomas: Yeah, I'm also realizing there's like the Hunter Biden aspect of it. I'm not sure if you're intending to talk about that, but another time that like bargains can fall through, I guess. And it's, it is something that, yeah, it's I'm interested to learn more about. Did this guy get kind of screwed over or not?

0:03:25 Matt: Yes can go awry actually not so much, he was put on notice this could happen, but I do want to talk for a moment about what he actually did, because I don't think it got a lot attention, like you said and the reporting was amazing, it was really worth reading, but these people the tax returns that he leaked Trump was the headliner, obviously obviously, but he also got tax returns for Warren Buffett, Jeff Bezos, Michael Bloomberg, Elon Musk. And he was able to show, for example, that Warren Buffet's actual tax rate when you break down his records was 0.1%, 0 0.10%. And I think we need to know that. I don't have a problem with that being released because how else are we ever going to know? Jeff Bezo's 0.98%, Elon Musk, 3.27%, right? And who among us is paying 0.01% federal taxes?

0:03:37 Thomas: Hmm. Wow. Yeah.

0:04:12 Matt: Any of the three of us?

0:04:12 Thomas: No.

0:04:12 Matt: I don't I don't think so.

0:04:14 Thomas: Yeah. But at the same time, I mean, he didn't leak them in it. Like there are times when it's like, oh, that's a leak, but it's a, or a whistleblower thing. And It's like yeah, that's, you should have protections in there, but this is like, he worked at the IRS. IRS. He stole or whatever, you know, essentially, I don't know how you would word it, but he, he's, yeah, he stole the returns and leaked them to the press. Never going to be defending the, the 1%, but like, I, it's hard to argue. That's not like a crime.

0:04:30 Matt: He did. He stole them. Oh, it's a crime. No, I'm going to argue that it was civil disobedience. I actually think it was something that needed to happen. And especially in the case of Trump, as we all know, every other president in our lifetimes, anybody running for president rather, has released their tax returns. And Trump never did that. And this man was fed up with it. He thought that this was something the public needed to know about. He was right, obviously, that they needed to now. Did And it. And he knew he was going to be facing a courtroom. He said that. He knew that at the time that he did this, there was no chance that he wasn't going to end up in court. Charged with one count, I will point out.

Well, actually, no, before we get to that, let me just talk to you a little bit more of what was in here. Learned that, for example, Jim Justice, the governor of West Virginia, who is a coal baron, as you might know, paid no tax since 2000. who was one of the wealthiest people in the Senate, we learned had dodged estate taxes using a loophole. It completely got out of them. And Scott was so upset by this, by this ProPublica story, that he wrote this really whiny letter to Merrick Garland. It's

0:04:41 Thomas: Yeah. Yeah, yeah, sure. Yeah wow. Oh

0:05:30 Matt: Actually, it's on his rickscottforsenate .com website. Like, he's very proud of this letter. And he demanded, and he said, I am going to be providing a victim impact statement so the world can know what this did to me.

0:05:34 Thomas: My God. Yeah that

0:05:42 Matt: What a loser, what, just I mean, like,

0:05:44 Thomas: That's the word for Rick Scott. There's no other word. That guy's a loser. He's just a dork and a loser and he sucks. But imagine having the, like, the opposite of self-awareness? Self-unawareness. Is that a word? To think like, oh, I know what's really going to tug at the heartstrings of voters. Like I'm going to put in my website, you won't believe what happened when my bazillions of dollars with no taxes was exposed. Who among us hasn't had that happen to them? You know?

0:05:50 Matt: In and sure and It's a real Streisand effect too, because I didn't know about that, and then it's like it comes up in all the stories that Rick Scott was writing to Merrick Garland and released this letter and like, you didn't have to do that nobody made you do that

0:06:13 Thomas: Yeah. Yeah. Oh, please tell me he also leaked Barbra Streisand's tax returns. That would be funny. Just like the little punchline there.

0:06:25 Matt: Oh, she doesn't deserve that. Yeah, no, I mean, I consider this to be an enormous public service. I actually fully support what Charles Littlejohn did. He could have been facing a lot more time because he was charged only with one count under 26 U.S.C. 7213A1, which imposes criminal liability on any contractors or employees of the IRS who willfully disclose to any person except as authorized in this title, any return or return information. So he clearly did that. There was no question he did that he was going to be facing this charge, but the government only charged him with one count, even though he released multiple records. So this was a little unpopular in the right. I should say more than a little unpopular. Uh, was a thought that he should be hanged for this. Basically it should get the absolute

0:06:27 Thomas: Yeah. Yeah, yeah, yeah. Yeah there's

0:07:06 Matt: Maximum with all the charges possible.

0:07:07 Thomas: No higher crime on the right than exposing a rich person's taxes. That's the that's the one unforgivable Crime. A couple questions though, what was the final, like, because I just kind of read the article, it was like, oh yeah, Trump and a bunch of other wealthy, but you know, he's going through like the Senate, he's got this, sounds like he did, work, you know him, he really had a, had a target list or something, yeah.

0:07:09 Matt: That's right. That'S, I don't know what the total was, but it was quite a few and and ProPublica and the New York Times both use them. Yeah. Was quite a few. And he was charged with one count. And the judge actually, so Judge Ana Reyes is actually a Biden appointee, and she has a pretty lefty background from what I can see, but she was furious about this. She thought this was a very serious crime. And she said, the fact that he did what he did and is facing one felony count, I have no words for, said Reyes. No words. She gave him a whole speech about how this was as bad as January 6th, basically.

0:07:31 Thomas: More than one we'll say yeah what

0:07:58 Matt: Yeah.

0:07:59 Casey: Yeah, that's my favorite. I just, I don't, do you have any idea why she, thought that? I was very confused by that.

0:08:04 Thomas: Wow. Is she married to a rich guy or something? What

0:08:07 Matt: Well, there's something going on because it's just, I don't know. Honestly, what you did in attacking the sitting president of the United States was an attack on our constitutional democracy, Reyes said. We're talking about someone who pulled off the biggest heist in IRS history. The judge compared Littlejohn's actions to those of January 6th, 2021 Capitol attack, noting your actions were also a threat to our democracy.

0:08:17 Thomas: The okay yeah

0:08:28 Casey: Wait, Are we, are we missing something? Something

0:08:30 Thomas: Is you said this person was kind of on the left, what like

0:08:32 Matt: And we're not. Has a background in refugee and asylum law, which, you know, it's about as left as you get usually. She actually said it engenders the same fear that January 6th does to have you.

0:08:38 Thomas: Trying to dismantle it? No

0:08:47 Matt: Absolutely, in Rick Scott, I guess it does, but well, now, was Rick Scott afraid of January 6th? I don't know, but he's very afraid of this

0:08:45 Thomas: It doesn't yeah yeah yeah

0:08:40 Casey: Or what oh yes it might be yeah, it might be about the same, uh, we really are talking about, factually, the same thing that

0:08:54 Matt: Yeah yeah yeah I

0:09:00 Casey: Wow

0:09:01 Thomas: I mean, look, I get, I get that, like, okay, if this was used, could see it being used for very nefarious purposes, you know, if this, this was you or I and someone at the IRS leaked our tax, yeah, it's, it's, you know, it's a crime, it's bad, but, like, again, it to where, like, there is genuine loss of life. And, you know, it, one or two people committed suicide after January 6th because it was so traumatic, right? I mean, like this is like the Confederate flag flying in the, like, it's, just, this is a joke, this is some records, records, this is records that like for Trump, like you said, should have been public anyway, every other president has done it, maybe you could argue some of the other people, you know, there's, I guess there's no reason why they would have been pubic otherwise, but still, it's not, no one died here, this is just, won't someone think of the forms of

0:09:23 Matt: Sure yeah yeah there's

0:09:46 Casey: Yeah

0:09:43 Matt: No yeah there's no version where somebody dies or gets harmed by this, except for the embarrassment of being exposed, that's what it is

0:09:51 Casey: I mean it's not even like, did, when they released it, did it have people's, like, I don't know, social security numbers or home

0:09:52 Matt: No

0:09:58 Thomas: If you released it to the press there's no way they would, yeah

0:09:58 Casey: Addresses yeah

0:09:58 Matt: It was released to this to the media, exactly no, and they were, were extremely responsible with it, and they wrote great stories, and they were all, you know, journalistically ethical, so it is, I don't know, I, I really don't understand, I mean, honestly, when you do an act of civil disobedience, you should always be prepared to accept the consequences, obviously that's just, you should, and sometimes you don't, but anybody who goes into that knows what they're facing, and he did, and I think he's a hero, so I'm not going to see it another way

0:10:00 Casey: Yeah so I

0:10:00 Thomas: Yeah yeah

0:10:21 Casey: Mean

0:10:23 Thomas: It's the kind of thing that pardons should, before, or whatever, you know like, it's like, all right, this was a crime, not arguing that, but, like, it served, was for social good, um, do you think that this judge was trying to, like, both you sidesy there's, you know, no, there's no trust in the legal system, so, like, going out of your way to be, you know, well, the attacking this person, to make sure you don't seem to have any bias against, I don't know, like, what, what do you thing explains this

0:10:27 Casey: Yeah.

0:10:23 Matt: Right. Yes. Yeah. Yeah. She's trying to be as nonpartisan as possible, but it almost goes the other way. Like she really is Trying to make sure. And because she's also, I think that she's she's being loud about this because she knows the maximum she can give him is five years. And I think people are going to want more. You know, they want blood for this. And but again, that's why she's on the record complaining that there's only one charge for the maximum five years and

0:10:51 Thomas: Yeah, of

0:11:00 Casey: What? Wait, I'm sorry. People are going to want to take away more than five years of someone's life over, this. That's ridiculous.

0:11:10 Matt: A lot of anger about this. Yeah, I did some background reading. And yeah, no, a lot of people said this was a typical Biden, you know, kind of set up and that obviously this is something they wanted to happen. So they just let him go. And, you Know, the original recommendation, which is what we're getting here to hear when we're talking about the question from Justin, the The original recommendation at the time of the plea was that they would agree that it was an offense level 11. Federal sentencing guidelines are incredibly complicated. There's no reason to get into them right now, but that amounted to a recommendation of eight to 14 months. The maximum is five. But at the Time, in that plea agreement, they specifically said that they reserved the right and they put them on notice that they could recommend more. And so in the pre -sentencing memo, and there's a very complex thing with, especially in federal court, where you enter your plea. Plea. I think you know this, but I want to make sure listeners completely understand

0:11:21 Casey: That is

0:11:55 Thomas: Course.

0:11:55 Matt: This. The plea hearing and the sentencing hearing are often many months apart, and they're completely different processes. We're going to talk about what goes into a plea hearing. We were mostly focusing on pleas today, but at is that they were going to be recommending eight to 14 months, or at least saying that was the category he was in. But again, they the right to go higher. So that was Justin's question is, how does this happen? How do you end up going to sentencing and having the max imposed?

0:12:18 Thomas: Yeah. Well, and also the to the bystander, you know, reading this article and seeing also seeing Justin's question, that it was like, wait, would you agree? Is it the kind of thing where you would want to know that information before you agree to plead guilty to something? Is there any sense of like this is unfair in a way, or is it like, now, this is kind of how always how it works? And I guess whenever you plea, you're going to be risking this somewhat. Like, how does that work?

0:12:34 Matt: You would.

0:12:43 Matt: In the federal system. Yeah.

0:12:43 Casey: Not. Yeah.

0:12:45 Matt: Go ahead. Yeah, that's

0:12:45 Casey: That is not the case, at least in the state system that I know. Like, and I, get the system works differently, but my understanding is the federal system has what we call defendant cat pleas as well. And so if what had been said was, we to eight 14 months in prison, and that was given to the judge and the judge said, no, five years, that he would have the right to withdraw the plea.

0:13:06 Thomas: Hmm. Okay.

0:13:08 Casey: That's my understanding and that's how it works in the state system. What I think is unusual is, to me, I've just never seen this happen, but Matt tells tells me that it's common in the federal system. I've never seen it happen that you would reserve the right as a prosecutor to go above and beyond the sentencing guidelines at your discretion without disclosing to the defendant you intended to do that in the plea agreement that you've come to. I think it's strange, but apparently that's not strange in the federal system, it does seem unfair to me, but I guess things work differently there.

0:13:10 Matt: Correct.

0:13:30 Thomas: Yeah.

0:13:39 Matt: You're on notice, but it does seem like you're saying that you're kind of relying on this initial recommendation.

0:13:44 Thomas: Could you do with that notice? I guess it just goes into your decision. Are you saying in federal system there is no chance to revise your based on this change?

0:13:46 Matt: Yeah.

0:13:53 Casey: There is. Rejects the plea, so if they reject the joint recommendation, at least this is my understanding, then to trial, right? You can withdraw your plea and move on. And I think procedurally it may work a little bit differently than it does for us. But my it's the same concept that what the defendant has has agreed to is the cap, and they can choose not to go forward with the plea if the sentence is going to go above and beyond what they had agreed to.

0:13:53 Thomas: Oh, okay. Okay.

0:14:15 Casey: That's that's what it is here as well. But they have this sort of vague thing about, we reserve the right to, you depart upwards. And then what I thought was really odd, and Matt and I were talking about this before, is the fact that he then gets hit with the maximum. A little hard for me to understand why you would plead at all if you were getting the maximum sentence why you wouldn't just say okay fine let's go to trial. I possible incentive is there to accept, I perhaps the government could have brought additional charges and that this agreement allowed him to plead to just the one count count.

0:14:32 Thomas: Yeah. That's a good point.

0:14:45 Thomas: At least preserves that only one. Yeah.

0:14:48 Matt: Right.

0:14:49 Casey: Yeah. And I suppose that must be it because otherwise I can't imagine why you would plead guilty and take the maximum sentence rather than going to trial.

0:14:49 Thomas: Wow.

0:14:49 Matt: Yeah yeah Isolation it does seem strange because in the government of course in its plea agreement said that they're they're reducing this because he took responsibility and he worked with them. Then and they go ahead and they're pre-sentencing them a couple of weeks before sentencing and say they recommend five years because of the public trust or whatever. Will say, I think politics were part of this. I think that the time between October and January, there was a lot more noise about what was going on. I feel like the administration felt like they had to recommend the max at that point. So I can't say that wasn't a factor. It's an interesting sort of case all around. I'm glad we got to talk about it because I'd missed it. And I think it's important that people know that he did this. So it's really worth taking your time.

0:15:30 Thomas: Yeah. At At last we can do so. You say went to prison. I wasn't sure on kind of the timing of all this. Is that done and done, wasn't any more room for fighting anything? It was just like, well, that is what it is, he got five years and he's in prison, oh okay wow yeah

0:15:43 Matt: He the plea and he has to turn himself in, I think by uh end of April, yeah but wish him luck so

0:15:48 Casey: The feds kind of do this, weird the thing. Well, to me, it seems weird where, um, where they tell people to turn themselves in like at some point, and I guess it's because maybe so many of their cases are white collar cases, but, uh, the idea that you you would get sentenced to five years in prison and just be like, oh, and yeah, just be sure you come back in like a couple months. Seems, seems really strange to me.

0:16:05 Thomas: It is interesting, I

0:16:09 Matt: Is there was that Spike Lee movie, um 25th hour, it was Edward Norton yeah and he had to decide like he had all this time to, yeah, it was great movie actually, and he had this time to to figure, decide whether he was going to be going in or not, and I think they leave it kind of ambiguous at the end, not to spoil anything, I think.

0:16:10 Casey: It 25 hours, 23 hours, 20, yeah, something like that. Yeah, yeah.

0:16:15 Thomas: Don't think I saw that it's almost a lot great movie we could do yeah

0:16:25 Casey: It's true actually. You know, I, this is just as a quick aside, the mayor of Fall Fall River, Massachusetts, was federally prosecuted for a variety of corruption-related charges. And mention this partly because he, many years after I did, went to the same high school that I did in Fall River. And yeah, he was one of the few prominent people that ever went to that high school. And believe he got reelected at one point when he was under federal indictment. He was one of those people that he got hit with a significant sentence. And they they just kept letting him have more time before he had to turn himself in. So at one point he, like his lawyers filed a motion saying something along the lines of he needs to help his family out at their restaurant for the next couple of months.

0:16:25 Matt: Yeah.

0:17:07 Thomas: Need to put in a few shifts, if you don't mind, yeah, if he never clocks out, he can't be arrested, it's it's new, a loophole in the law, it's like, I'm still on the clock, yeah yeah

0:17:11 Matt: Got

0:17:17 Casey: Pushed it back something like seven times and maybe I'm exaggerating, but it was a lot. At one point, he was like, well, I'd like to spend Christmas with my family. And they were like, okay, sounds good.

0:17:25 Thomas: Well, we we didn't know that. Okay. You're free to go.

0:17:29 Casey: He did finally end up having to report to jail because someone involved on the other side finally was like, uh, this seems like perhaps this has gone far enough.

0:17:37 Thomas: Yeah.

0:17:38 Matt: It's time. Yeah I will say that Charles Littlejohn's case ended the way that 98% of federal cases end with a plea. That's a lot of cases and I think it's worth talking for a minute, especially in the federal system, about why people do not go to trial.

0:17:43 Thomas: Yeah. Yeah. Mm-hmm.

0:17:50 Casey: It's generally because they're afraid they're going to get hit with a significant sentence after going to trial, or it's because they have charges that are carrying, that carry mandatory sentences, and the prosecution is willing to break those charges down to some sort of lesser included charge that does not carry a mandatory sentence, but that won't happen if you go to trial and you're convicted, uh yeah it's the

0:18:09 Matt: You're almost certainly going to be convicted in federal court. That is the problem. When they bring these cases they bring bring these cases.

0:18:14 Casey: Yeah they do not play around. I like don't know what the conviction rate is, but actually it's extremely high, though it's yeah

0:18:20 Matt: It there's a reason people say, don't make this a federal case. That's, that's an expression for a reason. You really don't, you don't do not want a federal case. Don't, the cliche, let's not make a federal case out of this.

0:18:26 Casey: Yeah

0:18:24 Thomas: Oh, like who is telling whom that like who, who, oh, I just want to know who who's, can use that advice? Like it doesn't sound very actionable to me. Like, oh, okay. Well, I was going to, okay.

0:18:33 Matt: No, I meant more the thing about Well, when I don't do the the dishes, dishes, let's, you know, although

0:18:42 Casey: Like, Don't make this into a federal case, I mean.

0:18:43 Thomas: Yeah, Uh, that Was like, oh, should I not cross state lines? All right, I'll do this drug thing like within the state, uh, that's fine. Yeah.

0:18:47 Matt: Yeah, we're I'm not actually allowed to give that advice, but no, I think it is probably a federal crime not to do theishes more or less, but you know who knows?

0:18:52 Thomas: Uh, Well,

0:18:56 Casey: Everything is a federal crime. It seems like somehow.

0:18:57 Matt: Yes. Absolutely. Everything.

0:18:58 Casey: Somehow that's like mail fraud or wire fraud.

0:19:00 Thomas: And we need some, some criminal justice reform, because I think the worst crime is doing it, but loading the dishwasher improperly, that's, would rather not be done, and then give me a clean slate to load it properly. You It's a campaign that I'm, I'm personally trying to raise awareness about and Arguments is brought to you by Fume. Know, trying to break a bad habit can be really hard. Sometimes borderline impossible. But with can change that because with Fune, it's not about giving up. It's about switching up. Takes your habit and simply makes it better. You replace it with a bad one, a bad bad habit with a good one, well then, shoot. Makes a massive difference. Fume is an innovative, award -winning, flavored air device that does just that. Instead of vapor, fume uses flavored air. Instead of electronics, fumes are completely natural. And instead fuming uses delicious flavors.

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0:20:48 Matt: Let's talk about plea bargaining, because the whole concept of plea bargaining is kind of weird when you think about it, right? You're approaching the government and being like, so what if I said I did it? That's what we're doing. And I want to talk about what this actually is and how it works in practice. And what are you actually bargaining, right, so there's at least three big things that you're going to be bargaining in a plea bargain. And the first is actually the facts.

As strange as that sounds, you can bargain the facts because the facts matter a lot for what they're going be able to prove for the elements of the crime. Time. So you could bargain to leave out certain facts. And I've had plenty of cases where there's a very long police report, but the plea is only to maybe a paragraph of that police report to just a tiny little slice of the thing that happened. Kind of a strange concept because you're being charged with all these offenses, but we just narrow it down to the thing that proves the exact offense you're pleading to. For example, if you're talking about a drug case, you know, maybe you had 12 ounces of something, but you end up pleading do a couple of grams, even though we know that you had all those ounces, because obviously the sentencing difference is going to be massive between

0:21:26 Casey: Think

0:21:43 Matt: Those two things.

0:21:24 Thomas: Hmm. Hmm, well, I assume it's just, are going to be elements of it that are like any negotiation where, and you said, by the way, you said you're going to the government. Is that how it works, or is the government coming to you? Well,

0:21:51 Matt: Generally speaking, in my case, I'm going to the government to just say, what would you be offering in this? But I do pretty small -time stuff.

0:21:57 Casey: I think, I think it depends, right? Because like, what, when we're talking about these sort of federal cases, um, bigger cases, state, it's court. I think it's sort of a more formal thing to some degree, certainly in the federal courts. But the reality is that it's over 90% of that in a plea. I mean, most of those are in -level cases, right? Misdemeanors, things like operating under the influence and so forth. And the way that that in those types of courts is basically you're both in court together, right, the defense attorney, the prosecutor, the defendant's probably there, you know, and you conference the case, you talk about it, and, you know, sometimes it might be the prosecutor that says, like, know, you what are you thinking? Do you want to talk about a resolution? In some cases it might be the defense attorney, probably more often the defense attorney that says, what would your recommendation be on this? Know, and then they have a conversation with their client and then you discuss further and it can be pretty informal.

0:22:40 Matt: Yeah. With prosecutors started with, we'd be offering, right? And they would just take, yeah, I'm sure you've done that yourself plenty, right. And you just walk up and say, this is what we got.

0:22:51 Thomas: On TV it's, it's also, there's Walk and talk, there's Also a weirdly, and this, there's a lot of negotiations, um, at urinals, uh, that That's in movies And TV Not Sure why It's a man's world, I guess, but you got to go to the urinal to be like, all right, will you offer me, me on the, this drug, such and such drug case. And then that guy has like 40 cases. And so he's kind of bartering, like, oh, come on, you're good, that one. And okay, what about this guy? That's how it's portrayed on TV a lot, you

0:22:53 Matt: Yeah, yes, yes. Definitely. Definitely. And

0:23:01 Casey: Huh.

0:23:17 Matt: A lot more fun than showing it in court, I guess. Oh, there's also the hot dog stand. For some reason, they're always talking where they could run at each other at the food truck or whatever outside. That's a common movie thing. But yeah, so the facts are the first thing at least I'm thinking about as a criminal defense attorney, and especially as an immigration attorney, because that matters a lot. The immigration system can go back and look to see which facts you actually pled to, and that can matter in many cases.

0:23:20 Thomas: Oh yeah. Yeah. Yeah, yeah.

0:23:25 Casey: Yeah.

0:23:36 Thomas: Interesting. So it's not just about the scent. Cause I, that's counterintuitive because I would have thought whatever the plea thingy is, the whole thing would include, you amount of what what the punishment was going to be. So I was wondering why it would matter if you pled to facts, but I guess you're saying later on, you know, you want, it matters.

0:23:53 Matt: It matters a ton.

0:23:54 Thomas: Yeah. Okay. Interesting.

0:23:55 Matt: It also can matter generally for, you know, just because they have to support the charge to whatever you're pleading to. So that's actually the next topic here is that you're also negotiating the charges. And you would think you're charged with charges. Those are the charges, but there's a lot of room in there. There's a lot flexibility. And

0:24:06 Thomas: Mm -hmm.

0:24:09 Casey: I mean, I don't know how much flexibility there always is, but in theory there is. I mean, right, the prosecution has the ability which charges they prosecute and which charges they go forward with. So, you know, it's really up to their discretion. If you really serious charge, let's say you have the degree murder charge, the most serious type of charge, it's solely in the discretion of the prosecutor to determine, you charges to bring and whether to go forward with those charges. And they can also file what's called a nullpros. And I'm not going to be able to pronounce the full, like, Latin name, but we call them nullproses.

0:24:12 Matt: It can be.

0:24:43 Thomas: Oh

0:24:43 Casey: It's nulli prosequi or something like that.

0:24:44 Thomas: Yeah. They're always a Harry Potter spell. Nullificus Patronum or something, you know? It'd be something like that.

0:24:51 Casey: So, have the to a null pros on not just, like, entire charges, but on portions of charges. So, right? If you're charged with murder in the first degree, they can drop a charge down to second degree murder or to manslaughter, for instance, just as an example. If you're charged with trafficking cocaine over 100 grams, they can drop that down to trafficking cocaine 18 grams or possession with intent to distribute cocaine. They could null process that entirely and bring a different charge of, you know, conspiracy to violate the controlled substances laws or something like that, um, the charges and which charges to bring and whether or not to break charges down to lesser charges at this stage is entirely within the discretion of the the prosecutor.

0:25:20 Thomas: Hmm. That's

0:25:33 Matt: In my world, for immigration purposes, it matters a lot because, as I said, some charges matter a lot more than other charges. You have to get creative for the immigration purposes. And for example, possession of a firearm is going to to be a serious problem for immigration. Possession of ammunition, not so much. So if you're charged with both the firearm and ammunition, you can get them to negotiate to maybe drop the firearm charge, take the max on the ammunition, and then maybe some other dinky charges that are associated with that. So you sort of add up to something that they can accept. It is weird. I mean, so many of these things are not really sort of in the realm of reality that we all share. We have to agree to a different reality.

0:25:56 Thomas: Weird. Yeah. I mean, it's again, it's why you need an effing lawyer. Cause like who would have, no normal person would be like, well, Well, that makes sense. No, it's like you got to know which weird, dumb things are worse than others for reasons that no normal person wouldn't understand.

0:26:08 Matt: Yes, it is. Oh, another

0:26:08 Casey: Right.

0:26:18 Casey: Say there has to be a factual basis though for whatever you're pleading to, right? And so you can't guilty to of ammunition just because it's a more favorable charge.

0:26:21 Matt: Yes. Stilistic him.

0:26:21 Thomas: Right. Hmm.

0:26:26 Casey: The prosecutor can't bring a charge like that if there's no factual basis for it. So if you really just possess...

0:26:30 Matt: That you had ammunition. Yeah.

0:26:31 Casey: Exactly. There has to be a factual basis to support that.

0:26:31 Matt: Right.

0:26:33 Thomas: Oh, there has to be a bullet in that gun. I was just going to ask, does it go the other way where it's, like, no, there was a gun, so you can't not do that? Or are you just saying, that's interesting.

0:26:35 Matt: Yeah, no, no. We'll Just leave out the gun. Yeah.

0:26:43 Thomas: You can leave stuff out, but you can add stuff in. Okay. Makes

0:26:46 Matt: Sure. Right.

0:26:46 Casey: I can add stuff in that has a basis in fact. So, So if you didn't initially bring an ammunition charge, you one of two things. But if the evidence supported it, right, let's say that charge wasn't brought for whatever reason, but the evidence supported it. You could either go back to the grand jury if court case and seek an indictment for that. Or there's a by which a can waive indictment and the can just basically the new indictment in front of the court without actually having put it before the grand jury is.

0:26:50 Matt: For

0:27:13 Thomas: Interesting.

0:27:14 Matt: Wanted to give one other example of kind of a weird alternative charge, which is, so possession of heroin, obviously, or possession of any drug, is a pretty serious problem for immigration purposes, but in Massachusetts we have an offense that's essentially being in the presence of heroin, just being in the room with heroin.

0:27:27 Casey: That still Really? Wow.

0:27:28 Thomas: Yeah.

0:27:29 Matt: It's still in the books. So that's been a popular alternative plea because actually doesn't have immigration consequences because you're just around heroin, if it was on your person, which would still be possession. So again, these are just creative ways to make sure that people don't have lifetime consequences. And especially if you're an addict and you're talking about somebody who needs help, them deported for life is not going to provide that help.

0:27:29 Casey: Yeah.

0:27:46 Thomas: Weird.

0:27:46 Matt: So who knew? The of a plea bargain, though, is that you get the insurance of knowing exactly what's going to happen in court, which you do not get when you go to trial, as we all know. I just wanted to say that. I think that's a pretty basic idea. But we're talking about, there's one particular, and we're going to be talking about a hypothetical case, somewhat based on real facts, in which it's kind of shocking, but you can think about sort of the range of ways that when you roll the dice, what can can happen.

0:27:46 Casey: Yeah.

0:27:57 Thomas: Yeah.

0:28:09 Casey: Um, don't want to say happens all the time, but with really serious cases, so the stakes are really high, like, so again, for example, Matt said, hypothetically speaking, um, have a group, group of people that committed joint venture murder. And a joint venture murder basically means that everybody involved shared the same intent, but they didn't all necessarily physically do the act, right?

0:28:29 Thomas: For it. It makes me think they filled out like an IRS form to like, we're starting a joint venture. Go, what area of business? Oh, murder. Oh, okay. Well, that's this form here. It's your joint venture, yeah, sure.

0:28:40 Matt: It's the same one you use when you cash in your 401k to start a bakery. Yes.

0:28:43 Casey: So So Example, this, you know, group of people, uh, get together, they agree to do, uh, armed robbery. And when I say agree, like the way these things tend to go down is, they don't tend to be, like you just said, a group of people that sit down and formalize an agreement. They tend to be people that are like kind of hanging around. And one of them is like, man, I wish I had more money because I really want to buy more weed. And somebody else is like, man, I know this drug dealer that always has cash. And the other guys are like, you know what would be really a great idea is if we rob that person. And the other people are like, yeah man, great idea. We'll put bandanas over our faces and just hold a pointed gun at him. And steal his money. And yeah, no big deal. And then we'll buy some weed with it.

0:29:16 Matt: What can go wrong?

0:29:17 Casey: And everybody kind of agrees to that. Yeah, what could go wrong? And then one one person says, you know what, if something does go wrong, I'm going to shoot him. And everybody else is like, yeah, no, that sounds good. And so they go and, and let's just say, you would be, you wouldbe surprised.

0:29:28 Thomas: This is a very realistic dialogue. What am I watching an episode of The Wire right now? Holy shit. Incredibly realistic dialogue, yeah.

0:29:36 Casey: You would be surprised at some of the, the factual patterns.

0:29:39 Thomas: Yeah. That sounds good. Shoot him. Shoot or stab him. No, shoot him. Okay. Yeah, well, hold on, hands up for shooting. Okay, okay, one, two, three, hands up for stabbing. Stabbing McGee over there. Yeah, I know you always want to do the stabbing. Sorry, maybe next time, no, we're gonna do shooting all.

0:29:51 Casey: And the reason, I put the fact pattern out there that way is because because back in the day in Massachusetts, you did not have to actually prove that the other venturers shared that type of intent, right? You just had to show that you were engaged in a felony, a felony that was inherently dangerous to human life. You all agreed to do it. And during the course of doing the felony, your co-venturer killed somebody.

0:30:13 Thomas: This like felony murder rule or whatever is it, okay. Gotcha.

0:30:15 Casey: And is felony murder, um, and so the reason that that I, I put the the factual scenario out there like that, uh, is because of the fact that we did change, um, our court changed, uh, the law slightly, and I don't know the degree to which felony murder still exists in the way that it used to, with like a lowered standard of intent or basically no intent to do the killing, in other states, and so that, that's why I mentioned it the way, because honestly, more often than not, what it really is, is let's go do an armed robbery, that sounds like a great idea, what could possibly go wrong, um, arm themselves, and then somebody gets shot, and they all get convicted of first degree murder, but but I threw out there the thing about, uh, going to kill the guy if something goes wrong, just to make it really clear what it is, right, that

0:30:17 Thomas: Mm. -Hmm. Wow. Wow. And

0:30:51 Casey: It's it's a felony murder, um, you know, under any version of of that as it's understood yes

0:30:53 Thomas: That gang takes really good meeting minutes, you know, and so that you were able to go, oh, wow, look, everybody all everyone say I as a voice vote. No, let's let's take a take a roll call vote, actually.

0:30:57 Matt: Yes. On the criminal conspiracy. Yeah. Yeah.

0:30:58 Casey: Yes. Or? Or, you know, or let's let's say that six or seven people are actually involved in this conversation and several of them agree to plead guilty and several of them in cases rather foolishly do not.

And so, obviously, the parties in question, they go out, they, the armed robbery which goes awry, the the victims end up getting shot as a result, and keeping in mind, hypothetically, that several of the people involved in this conversation are not actually at the scene because this is a joint venture felony murder order. They provide weapons and they agree to participate in this plan. So where plea bargaining comes in, right, is there are obviously differing levels of culpability.

So the person that pulls the trigger, the one that says, you know, if something goes wrong, I'm just going to shoot the guy, is obviously the person most culpable, right? The other two people that go with him, that it goes sideways and they participate to some degree, but they're physically there, you know, threatening the victims with guns, whether they're the ones who pulled the triggers or not, you're, they're also quite culpable, legally, right?

And I think, probably, probably, morally, the sitting at home that were sort of, you know, they were involved in this conversation that, you don't say, one of them provided the gun and the other people provide ammunition. They are less culpable legally. You know, they can still be convicted of the same thing, but they are, I think most people would agree, you, the less culpable parties.

0:32:18 Thomas: Look, it's like any group project. You have one person who does most of the work. You have other people are like, oh no. Yeah. And those unfortunately, in this situation, they get rewarded because they can be like, no, I never do any part of the guy. I'm a free rider. I just kind of, I rely on other people to murder for me.

0:32:32 Casey: Yeah. Yeah. Yeah. You know, and if it had gone well, we all would have been smoking weed together, like by midnight that we paid for with the proceeds of our armed robbery. But, you know, it didn't go that way.

0:32:36 Thomas: And you Yeah. That part's almost the same as the college group projects.

0:32:43 Matt: That's true.

0:32:45 Casey: And so if those individuals, you know, have attorneys, that first thing that their attorneys are going to think of is, what can I get for my guy, to right? The three people that are sitting at home that participated in the planning but not the act itself, clearly the ones that have potential to get a lower sentence through a plea bargain. And so let's say two of those people decide to take a plea. What's offered is, let's say, five to seven years.

Let's say the third person who's at home, you know, in his pajamas, like, watching cartoons and, you know, eating cereal, and and waiting for the others to return, but provided one of the guns, let's say, just for example, um, offered the same thing but says, "No thanks, I'd like to roll the dice.

I don't want to go to prison at all, because I just don't think I was that, I don't think I was that responsible for this, I don't think my role was that big in it." Um, what could happen is it could be that they all go to trial, those trials, some of them could be separated, right? So you could have the three people that go do the robbery, maybe they're all tried separately, as is the person that, that sits at home. And that's a separate issue, you know, as to why a trial like that would be severed, but it could be.

0:33:42 Thomas: Yeah. Yeah. I kind of wanted to ask, but I guess I won't.

0:33:46 Casey: It's a whole separate thing. But like, Basically, if they have directly conflicting defenses that point the fingers at the other people, or their statements, that one of them has been made, that's, it's one of those things that doesn't happen that often, because it's actually a pretty high standard. But, you, what could happen, and what has happened sometimes, is you could have the most culpable people go to trial and get found not guilty, then you could have the person that was, you know, sitting at home, be found guilty and sentenced to life in prison, like, and that can happen.

0:33:46 Thomas: All right.

0:34:14 Matt: First degree murder.

0:34:15 Casey: So for first degree murder, because I mean, those, the stakes are really high in a case like that. So, you know, a defendant, especially in a case like that, there's a significant value in you trying to come to some type of agreement with a prosecutor, because things don't always go the way that you think they're going to in front of a jury, and the rest of your life is a long time to sit around and say, "Man, I wish I hadn't rolled the dice on that." I imagine, yeah.

0:34:36 Matt: You can also see the other side of, I wasn't even there. I'm not going to do seven years for this, right? I'm going to go to trial And the jury will understand my position. Right. But unfortunately, it's not how it works. And it is tragic to think about that. This to me is is people should know, right, is that you can have a system in which the people who actually pulled the trigger are acquitted. And the guy who sat at home and was minorly involved in some way ends up doing life.

0:34:39 Casey: Absolutely. Absolutely. Yeah. Absolutely. Absolutely.

0:34:41 Thomas: Yeah. Yeah.

0:34:57 Casey: I mean, that can definitely happen.

0:34:58 Thomas: If they're acquitted, how is that not usable in his trial or did it happen after or something? Because you would think that it's, like, well, the law has found that the murder that you're talking about didn't even happen with these people. Like you know what I mean? It seems weird.

0:35:09 Casey: No, no, because there's different. So for one jury, we don't know the reasons for jury verdicts, Right? So jury deliberations are completely secret. You can't delve into them under really any circumstances. Circumstances, and you don't know why a jury found somebody not guilty. It might be for some reason that is totally incomprehensible and has nothing to do with whether or not, like, killing actually occurred. It could be like that they didn't think, I don't know, I I mean, it's it could Be, I mean, it's really hard to say. It could be an identity thing, right?

0:35:15 Thomas: Right.

0:35:31 Thomas: Like an intent thing or like a, yeah. Hmm.

0:35:36 Casey: I mean, it could be a lack of criminal intent or lack of criminal responsibility thing, although that's sort of separate. It could be an alibi thing with regards to that person. That would not be like a binding decision on any future jury. I mean, you might think, if you were a prosecutor, whether or not you should go forward with that second trial though. You know, if you've already had a jury acquit people in this hypothetical, you, who are more culpable, you might consider, like, what do we need to do to get rid of this case?

0:36:03 Thomas: Yeah.

0:36:03 Casey: Clearly there must be some sort of problem, but you know, juries, juries do funny things, and that, that is part of the reason I think for both sides, you, they think seriously about plea bargaining, because you can really never predict what, you know, what those 12 people are going to do once they get into a room together, regardless of what, know, what all these, like, fancy experts and so forth, like, on jury selection think. It's, you know, it's hard to tell what, what group of people are going to do once they're given the facts In law,

0:36:26 Thomas: Gene Hackman's getting old. Hackman's getting old. He can't run you every voir dire. Always wonder, like, in those situations where you got a number of people, is that the kind of thing where it's like, all right, first person to try to get a deal wins, kind of think, is what, how much, if you're the second person to agree to do a deal, is the government like, well, you know, now we don't need you as much, so not as much leverage, or how does that tend to work? Well,

0:36:47 Casey: Trying to, if you have, like, a big group of people, sorry, I'm just, I'm thinking out loud.

0:36:51 Thomas: I mean, I also think about it with a lot of these Trump cases, you know, like one by one they were kind of pleading out, and it's like, is there, uh, because it also would create, you, from the government's, it would create a good incentive to, like, encourage people to, to ahead and you

0:36:57 Casey: Yeah, I think I think there's probably some truth to that. I would hope that conscientious prosecutors look carefully at the evidence and truly consider who is most legally and ethically responsible for the case, and not just who is more willing to come talk to us. Because I think you can end up with real miscarriages of justice if the person that is most willing to talk to you is the most culpable person. You would need to really carefully consider that if you're a prosecutor, you don't want to do something that's sort of inherently unjust because the first person to to the plate know, is, is the first person to the plate. So So, I think to some degree, yes, as long as we're talking about the, more minor players.

0:37:30 Thomas: Right.

0:37:44 Matt: Also meant to mention, of course, that in the plea bargain, the other thing that you're bargaining is the sentence. Obviously, that's the thing that people think about the most, but I just wanted to make sure we didn't leave that out. But let's talk about the actual plea hearing itself and what happens. Once you've decided that you've going to enter this plea, you've negotiated things out with the prosecutor, you're going to go to the you've had conversations, which are protected, by the way, that you can't have those things come into court, the things that you were discussing at the time when you're taking a plea.

And going take responsibility to some degree for what happened, and you've already decided upon what that amount of responsibility is going to be and what the recommendations are going to be for the outcome. And it could be that you've agreed with the prosecutor on what the outcome is going be in that sentence, and the judge will accept that joint recommendation. It could be that you walk in with different recommendations. The defendant thinks it should go one way, and prosecution thinks there should be another sentence, and the judge has to decide.

0:37:48 Thomas: Sure. Yeah. Right.

0:38:28 Thomas: Literally agree to disagree and why is that even still technically a plea bargain or whatever?

0:38:29 Matt: Right.

0:38:34 Casey: You have the right to offer and change a plea at any time, right. As, as a defendant. Um, you have a right to offer a plea to the charges as they stand. You can offer whatever recommendation you want. You can recommend whatever sentence you want. The prosecution can recommend whatever sentence they want. It's probably more persuasive to a judge if those two sentences are close, right? You've done an armed robbery, let's just say, and I'll say on the state level, let's say there's no bottom number on that, which isn't necessarily true. But let's, let'S say that you come in, you're like, I do not want to do any jail time on an armed robber. I would like to do probation. And the prosecution is like 25 years. It was a pretty serious armed robbery, which is a lot of time, right? I think the judge is a lot less likely to take that type of disparate recommendation seriously if you're that far apart.

0:39:08 Thomas: What it look like to take it seriously or not? What does the judge do exactly?

0:39:21 Casey: I mean, the judge can do something totally different from either if you want. So it's to both sides' benefit to try to come to something that's closer to the middle. So if you're a prosecutor and you really think that this is worth 15 or 20 years, you probably would like the judge. You don't, if the other end is which is unlikely, but, or one or two years or something like that, prefer that you be closer together because otherwise, the judge might kind of split the baby in the middle. And so it's, know, there's only so much you can do about that. But a judge, you can impose something different. They can impose it because, like I said, the defendant can withdraw his plea if it's something.

0:39:55 Thomas: I was going to say, OK, so that's still so like just to detail the process, I guess I didn't know that you could still be doing a plea bargain, but then you disagree or whatever. Agreed. What have you agreed to? You've agreed to like going to plead guilty to something, to the charges.

0:39:58 Casey: Yeah.

0:40:12 Matt: The charges so that you've narrowed down the charges. Right. But maybe the prosecution thinks it should be different punishment and you can't agree on that. And that's fine. You just and that happens all the time that we'll say, OK, well, we'll let the judge decide because that's what we have to do now. At least we were able to reach agreement on what the facts and the charges are. And then the sentence, the judge can decide on sentence.

0:40:15 Casey: Yeah, yeah,

0:40:27 Thomas: But then do you have the opportunity to change your mind at that point if the judge goes insane? Okay. That's interesting. I didn't know that. See that one on TV. The judge do it at the urinal? Are you all three at the urinal? And then you're like, all right, judge, get it. You're still both of you peeing. And then he like, call the judge. And the judge is like, finally, I've really had to pee this whole time. And that's where they do.

0:40:31 Matt: Yes.

0:40:32 Casey: Yeah. Yeah

0:40:47 Matt: It's the real chambers. Yeah.

0:40:49 Casey: Yeah, I think that they've, yeah, now that they have recorded lobby conferences, I think, that's really, I, I

0:40:50 Matt: Yeah.

0:40:54 Thomas: Okay, good. I, I I thought that was a weird thing that you guys did. I'm, I'm glad you no longer do it.

0:40:59 Matt: Well, you know, actually, we're heading toward all-gender bathrooms in Massachusetts. So maybe those days will be coming. Maybe we can all enjoy in the chambers. Numbers.

0:41:06 Thomas: Nice. I'll pull up a seat.

0:41:06 Casey: Said, they, they have to be recorded now, so you're going to have to have the court reporter in there, too.

0:41:17 Matt: What actually happens at a plea hearing? That's what I want to talk about. Judge is going to have to go through a series of questions to make sure that you know exactly what's going on, that you understand what you're pleading to, you understand the consequences, and that everything that's happening is knowing, intelligent, and voluntary. So I want to talk a bit about that standard because that's just the basic standard that you would hope for. But it hasn't always been done that way.

And we know that because of Boykin v. Alabama in 1969, which is a Supreme Court case in the last days of the Warren Court. This case, I hadn't actually ever read the facts of it before I was preparing for this. I was familiar with this case, but the facts are appalling, even for Alabama. The defendant entered a plea to robbery in Alabama, and he did not say anything at the plea hearing, and the court didn't ask him any questions, which was incredible.

I mean, it's just, I can't even, it's just like such a basic violation of professional standards to not even ask the guy, do you understand what's going on? Have you had a drink today? Anything like that. Just basics. So after this plea in Alabama at the time, jury was left to the punishment. So he's accepted responsibility for robbery. And the really off-the-rails, unbelievable thing about this is at the time, robbery carried a death sentence in Alabama as an option. The

0:42:26 Thomas: Wow.

0:42:26 Matt: Jury in this case sentenced him on every count to death for robbery. It was

0:42:30 Thomas: So Um, was this person black? Is that uh what we have going on here or

0:42:33 Matt: Was, I like I don't even need to say it, but yeah, he was. Alabama. Yeah.

0:42:37 Thomas: Crazy. It's a couple things I've, um, on Where There's Woke, uh, related to, as is Mississippi, but Alabama was in there too. It is just so horrifying how they did have a lot of these crimes that like had, you know, rape was punishable by death for a while and it's like, I imagine that has a lot to do with, well, when a black person's convicted that means they get to do the death penalty, and then when a white person is convicted then they have the flexibility to not pursue that. I'm sure. Wow.

0:42:50 Matt: So, historically, that is how it has played out, unfortunately. This defendant had no prior record. You know, I mean, that's just, again, this is a shocking case. And so my man, Bill Douglas, writes one of his typically kind of lazy five-page decisions, which I appreciate, honestly. I wish the Supreme Court did more five-page decisions these days. Just, you know, bang them out. You know, he just runs it down. It's like, no, I mean, there's no record whatsoever that this guy understood what was going on. We can't have this. And they did the kind of typical Warren Court thing where they picked up on something that wasn't even really being argued by the parties. And they said, the way we see this record, this was not knowing, intelligent, and voluntary. You've got to send it back. And that's what happened. So

0:43:07 Thomas: Yeah.

0:43:37 Thomas: Feel like back in those days The Supreme Court also could have had like a stamp that was like Alabama slash Mississippi slash whoever did a racism. You know, like we get even shorten it from five pages. They did a racist again overruled, you know, kind of thing.

0:43:49 Casey: Yeah.

0:43:46 Matt: Yeah, and They're trying to kill somebody, yeah. Once again, so there's a number of different factors when you're looking at knowing, intelligent, and voluntary, and one of them is what did you actually agree to, right? When you agreed to this plea agreement, and it's been held in Santa Bella v. New York in 1971, a few years later, that a plea agreement is essentially a contract you're making with the government, and a point, so that if you're walking into a plea hearing with an understanding of what the government's going to recommend. This kind of goes back to Justin's question, except that in this case, you're not being given notice of what they might argue higher. So in Santobello, this is a very minor gambling case.

And the prosecutor had originally agreed not to make a sentencing recommendation at all and just leave it to the judge and let the defendant recommend something. And there was a new prosecutor by the time of the sentencing hearing, seven months later, apparently not aware, according to the facts in the case, of the previous agreement, and just went out and recommended the max.

And Supreme Court agreed, agreed that the prosecutor had violated their agreement, that the guy had taken the plea, obviously, in the understanding that he was going to be not, had taken a plea in the understanding the government was not going to recommending a sentence and leaving it to the judge. Generally the standard is if you're engaging in some kind of detrimental reliance, right?

Which is almost by definition taking a plea is a detrimental reliance because you're doing it in the understand that this is going going to be the outcome. So it's not a knowing, intelligent, and voluntary plea if something is happening that you didn't expect to happen from the prosecution, just to start with. But there are lots of other ways that it can be not knowing, intelligence, and involuntary.

0:45:10 Casey: Can you talk about what those words mean? Because I don't think they necessarily mean in the legal context what people might think, right?

0:45:13 Matt: Yeah, I was just about to ask you.

0:45:19 Casey: Think voluntary is probably the easiest one of those things to,

0:45:22 Thomas: Because you might think, oh, it's not really voluntary. I don't want to be pleading to anything. How could it be voluntary?

0:45:26 Matt: Yeah. It's true.

0:45:28 Thomas: You're going to put me in prison.

0:45:27 Casey: Right. So, it's, yeah, So it basically just has to be free from coercion or duress or threats, right? And one of the things that the judge typically asks is or not you've been made any promises beyond anything that is encompassed in the plea arrangement, right. So if the promise is we'll drop this this charge if you plead guilty, that's not inappropriate, right? Because that's something that's been disclosed to you and to the court and that's not considered, you know, inherently coercive. It doesn't overcome your will. Basically, voluntariness in this context means whether or not you're being forced into doing something. But like you said, I don't know that it's the way regular people would necessarily understand that.

0:46:03 Thomas: Yeah.

0:46:04 Matt: Right, Right, right.

0:46:07 Casey: Really, that means is that you understand the charges against you, right, and so that's separate than the factual basis. So the judge has to find that there's a factual basis for the charges but the defendant also has to have, you know, some basic understanding of what what the charges are, um, front of them, and

0:46:21 Matt: To say, that's why the judge asks, how far did you get in school? Right. And it tries to make sure that you understand like the basics of the system. Have you been advised with the maximum sentences? What we're going to be doing here today? You know, just kind of assesses the person in front of them to be sure they understand that they're fully present. They also will ask them, know, you when was the last time you had a drink or any drugs that might affect your ability to understand what's going on here? Obviously, if you're on LSD, when you're taking a plea, that's not going to go very far.

0:46:23 Casey: Exactly. Yeah.

0:46:43 Thomas: They make them fill out a CAPTCHA, you Know, just like testing. Yeah.

0:46:44 Matt: So yeah, someday, I'm sure.

0:46:45 Casey: And The other thing, though, was with a plea is knowing, right? So you have to understand, basically, and this is framed in slightly different ways depending on the cases you look at, right? So, right? Whether something is knowing and intelligent, you is whether or not somebody understands basically the facts and the law that are alleged and the things that they're giving up by agreeing to guilty, right? So the rights that giving they up, the right to a jury trial, the right a direct appeal, the rights to cross-examine and confront the witnesses against them, like, those are constitutional rights that you are foregoing knowing by not going to trial.

0:47:17 Thomas: That seems like it doesn't include knowing that you're, you know, screwing yourself over for immigration court later on or something.

0:47:23 Casey: So is actually what I was about to say is that what's is interesting. I feel like, I think we're going to get to that a little bit more later, but in order for something, okay.

0:47:24 Matt: Point. No. We could talk about it now. I think it would be a good time.

0:47:30 Casey: In order for someone to be knowing and intelligent though, right. Doesn't have to happen for this purpose, um. Is you don't need to understand all of the collateral consequences of pleading guilty. And there are a lot of them, right? Like, there's a lot OF consequences. You might not be able to get housing. If you are pleading guilty to a sex offense, you might end up being, in the future, committed as a sexually dangerous person. And for what it's worth, in our jurisdiction, a judge is required to tell people that, but that's not a constitutional requirement, is my understanding. You might be, you know, denied federal financial assistance. You Might lose your license. Like, Like, you know, there's a lot of potential collateral consequences.

0:47:31 Matt: Yeah.

0:47:42 Thomas: Yeah.

0:47:43 Matt: Dozens. I've I've learned there's any number of things that can keep you from becoming an electrician, right? I just and the judge doesn't have to tell you that. You might not right.

0:48:07 Thomas: Wow.

0:48:07 Casey: Yeah, exactly. The inability to get, exactly, the inability to get a professional license. And there's just, it be very, very difficult, I think, to enumerate all the various collateral consequences of criminal convictions. And so that's not constitutionally required. What's required is that you understand the, consequences of pleading guilty, your sentencing exposure. With, what Matt said about immigration consequences. A long time, those were treated as collateral consequences until a case called Padilla v. Kentucky that I bet Matt can explain better than I can. But basically, in my recollection, the individual, the defendant was a drug trafficker, he had, was it like 200 pounds of marijuana in a truck, a tractor trailer full full of marijuana.

0:48:10 Thomas: Wow, wow.

0:48:43 Matt: Had a tractor trailer full of marijuana. Yeah. Yeah.

0:48:44 Thomas: Holy crap. Talk about traffic, the traffic and trafficking a bunch of people behind him. Hurry up. I got a bunch of marijuana. It's as fast as it goes. What do you suggest I do?

0:48:54 Casey: And had a drug case once where somebody like literally had their entire like SUV completely stuffed with like trash bags, trash bags full of weed. And like, when, when the police officers like actually brought this in, and it wasn't a motion of suppress, because they were trying to say that the police wouldn't have been able to smell this with, you know, the window rolled down. So I had them bring like the, the bags in, the trash bags filled marijuana, which were sealed at this point by the way like Like that.

0:49:19 Thomas: You did the miracle on 34th street letters to Santa thing, but with marijuana. Oh, it's

0:49:24 Casey: Yeah. I mean, actually I never saw that movie, but yes,

0:49:27 Thomas: Such a good joke, you gotta see it now, uh, they

0:49:29 Casey: I'm assuming it involves like Santa Claus's dragging or like dragging in back.

0:49:32 Thomas: Bring in because they recognize we did that as a lot of movies a million years ago, and it's, it's actually really absurd, it's funny, but they bring in, yeah, bags and bags of letters to Santa, yeah.

0:49:32 Casey: Okay.

0:49:33 Matt: The letters it

0:49:42 Casey: Yeah. Yeah, I mean these are really, they're big black garbage bags. The things, they were heat sealed at that point. And I mean it smelled, it smelled really strong because there was a lot of it. Wasn't a tractor trailer. That was just SUV an or maybe it was two SUVs, but but yeah,

0:49:55 Matt: Actually particularly noteworthy that it is that much marijuana in this case for reasons we'll get into in a second, but, uh, this situation, as Casey said, it's usually seen as collateral, it's usually just seen as something that's going to happen, not, you're not going to prison, you're going to be deported, it's separate. But the Supreme Court, I think, in one of the best decisions in the, the past, I don't know, 30 years, held that it's not just collateral because it's your life and because immigration is so important. And even if it's a civil consequence, it's one of the biggest ones that we give out. So Justice Stevens wrote a very reasonable decision, I think it's some of his best work, he was actually right at the end of his career. I think he was 90 or 91 by that point, which is just incredible. He wrote that where the consequences are truly clear, the duty to warn is equally clear. Now, this is not a duty to warn from the court.

0:49:59 Thomas: Hmm Oh.

0:50:38 Matt: This is a duty to warn from your attorney, but the court does also warn you. In all states, as far as I know, there is some version of the immigration warnings that we have here where the defendant has to be, yes, and the federal government has it too, the defendant has to informed that if they are not a U.S. citizen, the conviction may have immigration consequences, including deportation, exclusion, or denial of naturalization. Now, may is doing a lot of work there, right? Because there are many cases in which you're going to have mandatory consequences. And so a lot of the judges have updated the language from May to it is virtually inevitable that you will suffer

0:50:41 Thomas: Yeah. Huh.

0:50:47 Casey: And the federal government.

0:51:11 Matt: These consequences. But that's still not enough. It's not enough that the judge told you that in the plea hearing. Your attorney also has to have advised you. And again, we're talking about an absolutely no question deportable offense, like drug dealing, like many violent offenses, right? You have to be told specifically that this is going to cost you your green card. This is going cost your citizenship, your ability to get citizenship, I should say. This is going to cost you any chance you might have in the future to become a U.S. resident even the chance to enter the country again. So this not necessarily for every possible immigration consequences. It's for the big ones. Although I do try to argue it for as many as I can, because I think that people should know.

0:51:16 Thomas: Hmm.

0:51:46 Casey: And I think something that is important, though, is despite the fact, so we're talking about pleas, and this, Padilla has to do with pleas, obviously, that the way that the court analyzed the case was not really, it wasn't in terms of whether plea was knowing or intelligent exactly. It was whether or not defense counsel was ineffective, right? So the holding of Padilla is that a defense attorney attorney must inform a non -citizen defendant about the risk of deportation, you know, when they're deciding whether or not to plead guilty, where those consequences are truly clear. And so when you have 200 pounds of marijuana, which is why the tractor trailer marijuana is relevant, that is mandatory, inevitable deportation.

Andso that's the way it was analyzed is whether or not defense counsel has the obligation. That said, Matt and I were talking about this before, like, you definitely have seen quite a few motions and arguments arguing about voluntariness, a plea is knowing and intelligent if you don't understand those consequences. So I think there's certainly an argument to be made. And for all I know, there may well be states that have found that it's not not knowing or intelligent if if you you're, don't understand those consequences and they, they weren't really clear, but, um, that's not how Padilla actually was analyzed. So, uh,

0:52:05 Thomas: Yeah. Yeah.

0:52:53 Matt: Right. But, you there's so many small offenses, something like shoplifting. I always try to bring this up because shoplifting in Massachusetts carries no possibility of jail time on a first offense. So you would think it's really really no big thing. But it is a crime involving moral turpitude for immigration purposes, which means that if you have one of those on your record, you can't get residency. And it means that, if you two of them, you're going to be deported if you already have residency. Now, there might be a waiver available, maybe, but you should know that.

You should know that you're gonna be facing a much more difficult path, if no path, possibly. And, again, we're talking about, in a shoplifting case in Massachusetts, you don't even necessarily have the right to be appointed an attorney, because there's no possibility of jail time. They do, anyway, anyway, because you can't have an attorney, but you don't, because The controlling law is you don't have to have an attorney appointed if there's no possibility of jail time. That to me is the most shocking example of a case in which I think what was the maximum penalty for first

0:53:05 Thomas: Oh. Wow. Huh. Huh. Oh,

0:53:13 Casey: No, you don't. Hmm.

0:53:43 Matt: Time shoplifting offenses.

0:53:43 Casey: Two, it's $250 fine. Or it was when I was in district court.

0:53:45 Matt: Right. Right, so you would never think.

0:53:47 Thomas: Sounds like we get to steal something more expensive than that for free.

0:53:50 Casey: Well, then you, then YOU get charged with larceny over $1 ,200 if you do that.

0:53:53 Matt: Right, yeah.

0:53:53 Thomas: Ah, oh, so there's a 250 to 1200 range is what I'm hearing. 700 bucks?

0:53:55 Casey: Yeah, yeah, Well, you know,

0:53:57 Matt: Not legal advice. Bias.

0:53:57 Casey: I should yeah,

0:53:58 Thomas: No. You know, that's what I am.

0:53:59 Casey: You know, I should I should

0:54:02 Thomas: That's the very clear legal advice I'm taking from this. I don't know what you're talking about. No, I'm just kidding.

0:54:02 Casey: You know. I should look and see if there's been like some type of inflation and I think it is still 250, yeah, it is 250 for first offense, yeah, 500 for second offense.

0:54:09 Thomas: Yeah. Wow. In this economy?

0:54:11 Matt: Think it is, yeah. Yeah. Right. So you would never think, any reasonable person, I think, would never, never cross their mind that, you well, I'm married to a U.S. citizen. She's about to file for me. Is this going to be a problem? I just think if you're not, if you're just paying a $250 fine and walking out of court, I don't think you'd necessarily think of that at all. So that's a real gray area because that's not covered in Padilla, and that's really covered in the immigration warnings because the judge is saying this may have immigration consequences, but the implication is there. You should go talk to your attorney or some attorney like me, who's going to tell you that there's going to be immigration consequences. So this is something that the court, it's a fix. It's an in -between kind of fix because the court can't sit there and tell you exactly what's going to happen with immigration, but they do have to tell You that something might happen. So you should think about it before you take this plea. Yeah, please.

0:54:55 Casey: Oh, wait, wait, Matt, I have an update for you on shoplifting. It has in fact been updated, so it is, if the goods obtained are less than 250 dollars and it is a first offense, the fine is not to exceed 250 dollars, uh, for the second offense, uh, you know, between 100 and 500, but if the retail value of the goods, uh, equals or exceeds 250 dollars, um, it's not more than one thousand dollar fine or jail time, house of correction, um, between two and, uh, no more than two and a half years, so that actually is

0:54:59 Thomas: All right. All right.

0:55:01 Matt: Oh, good. I mean, not good, but yeah.

0:55:29 Matt: Third offense.

0:55:30 Thomas: Okay.

0:55:30 Casey: Kind of, and that's on a first offense.

0:55:30 Matt: Not,

0:55:30 Thomas: So the small business I was planning on opening, the arbitrage arbitration, I was planing on pulling off isn't going to work, I guess. Like buy low, sell high on this shoplifting, some PS5s or something. And then like, I would plea bargain to get just the time. And then as I'm saving on rent, and then I do that about 500 times. And then I've made a living. I think that's, so you're saying that won't work, I think is the message I'm getting.

0:55:55 Matt: And I can't stress this enough, legal advice.

0:55:59 Matt: That is, a lot more to talk about with plea bargaining, but we wanted to cover the basics and what you can expect to see at a plea hearing and why these questions are asked and the kinds of things that go into it and what's leading up to it. So I hope we covered all that. The

0:56:10 Thomas: And importantly, for this, uh, guy, um, I had really just from again just glancing at the story, like, I know a lot of people, a, do, and I kind of love that about the show, it kind of gives you the deeper, um, of it. It sounds like he wasn't like, you over, or like, it wasn't like some weird trickery that the government pulled. It's definitely, it's definitely weird, right? I mean, it was definitely a little bit, you know, abnormal, but yeah,

0:56:29 Matt: Usual trickery that the federal government pulls. It's the normal kind.

0:56:30 Thomas: Yeah, sure. That's a good way of putting it. Yeah.

0:56:33 Matt: Me. They said they might do it so that's enough, right? So I there's

0:56:35 Thomas: Yeah.

0:56:36 Casey: And People every would, like to hear more about plea bargains, we have more stuff we can talk about in the future. So if there is, if there's huge demand and people, people are crying out for additional information about the plea process, we can, you know, we can oblige.

0:56:41 Thomas: Yeah? Huh?

0:56:51 Matt: At least another hour, I'm sure. There's a lot of interesting details. I mean I think it's a really fascinating thing because this is a very American thing, by the way. Europe is just now beginning to experiment with the idea of plea bargaining. The European civil system is completely different, and they've they've always thought it's a little strange that you would have this conversation about, well, what if I did it? That's... that's my understanding is they're just now sort of getting into the idea of maybe having plea bargaining. It's plea bargaining, actually sentencing bargaining at least has been illegal in Alaska since 2013.

0:57:04 Casey: Interesting.

0:57:19 Matt: Yeah. I, that might be another episode.

0:57:17 Thomas: What? Why? What do they do instead? Ice fish? Yeah.

0:57:25 Matt: I was just beginning to look into it. Yeah.

0:57:22 Casey: Yeah, we Can

0:57:25 Thomas: Weird. Oh, okay. Well, pin in that. All right. Well Matt Cameron, thank you so much. Casey as well. Thank you for bringing that real life experience to bear, even though it's of course just hypotheticals, though possibly with some resemblance to some sort of cases somewhere. And of course a reminder on patreon.com/law. I will post that Wednesday post again, which was the one that that we got this question from. So that's working out. It's a lot of fun. We'll make sure to check that and going to see you next time. And we're gonna see everyone for T3B.

0:57:38 Casey: Yep.

0:57:39 Matt: As always.

0:57:52 Matt: All right. Thanks again, Justin. And we'll see next time.

0:57:54 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.