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Glisson: Supreme court’s ruling paves way for monitoring plea bargaining

Friday, March 23rd, 2012

(Blogger’s note: Back to help us untangle our often complex legal system is Stan Glisson, a local Bremerton defense attorney. You might remember his last column explaining whether a driver flashing his headlights is a first amendment right. Here’s Glisson’s take on two supreme court decisions this week that will give criminal defendants far greater abilities to challenge decisions in the prcoess known as ‘plea bargaining.’)

In two brand new decisions, the US Supreme Court has dramatically extended legal protection to criminal defendants in the plea negotiation process. Historically, courts have protected defendants against incompetent defense with the ‘ineffective assistance of counsel’ standard. Basically, the accused person can be granted a new trial when the lawyer’s level of skill at trial appears so poor, or a strategic decision so difficult to justify, that that the jury did not hear a reasonable defense.

Now, the Supreme Court has extended this protection to apparently incompetent representation even on cases that don’t go to trial. In Missouri v. Frye, the defendant was offered a misdemeanor plea and 90 days in jail for what could have been a felony driving offense. The lawyer did not tell the client the plea offer, and it was eventually withdrawn. Later, the accused plead guilty to the felony and received a sentence of three years in prison. The high court decided that failure to advise the client of the favorable plea offer was ineffective assistance, and has now vacated the three year sentence.

For the Court, this is a huge departure and a bold change in the law. The decision requires of the states an enormous undertaking; find a practical way to monitor plea negotiations, previously regarded as semi-confidential, for effective advocacy. The Court recognizes that nationwide about 95% of criminal cases are negotiated short of trial. The decision explains that to a large extent “[plea negotiation] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.” As such, the criminal defendant is absolutely entitled to have competent, diligent counsel at the negotiation stage, just like they are at the trial stage. Defense counsel has a duty to communicate potentially favorable plea offers to the defendant, and the court now will have some obligation to monitor that interaction.

Interesting that the Supreme Court made note of one common, and deeply disturbing, phenomenon that occurs with plea negotiation. “[Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes. This often results in individuals who accept a plea bargain receiving shorter sentences than other individuals who are less morally culpable but take a chance and go to trial.” The Court does not suggest, as personally troubling as this is, that the court should be involved in changing that outcome. The key issue is whether the defendant was aware of his or her plea options, and made a knowing and informed decision to go forward to trial, understanding the risks that follow. The reality that a less culpable defendant often receives the far harsher sentence is a symptom of the plea negotiation process and prosecutorial discretion, and will be upheld absent ineffective representation.

In Washington, this idea is not new. In a 2005 case, a local lawyer was suspended from practicing law after it was documented that he failed to communicate a written 57 month plea offer to a defendant. The case went to trial, the defendant was convicted, and faced at least 221 months in prison. When the facts about the plea negotiation process were revealed, the Superior Court withdrew the convictions and the defendant was ultimately allowed to accept the original 57 month offer.

So our courts have been willing to listen to the occasional extreme case of ineffective plea negotiation representation. But the US Supreme Court now appears to be requiring that courts be prepared to examine that process in every criminal case. The inquiry, the Court explains, becomes how to define the duty and responsibilities of defense counsel in the plea bargain process. This is inherently difficult, as “The art of negotia­tion is at least as nuanced as the art of trial advocacy and it presents questions farther removed from immediate judicial supervision.”

So how are the courts going to administer this extra responsibility to ensure competence in negotiations? The Supreme Court suggests plea negotiations in writing, perhaps filed in court to show the history of the negotiation process. This is a major practical challenge, but would protect prosecutors and courts from frivolous motions based on unfavorable post-trial sentencings. For example in 2010 nearly 10,000 misdemeanor cases were filed in Kitsap County courts. In one local court, two public defenders last year were assigned nearly 900 criminal cases to handle. Despite growing obligations and legal expectations placed on public defense attorneys, funding for those positions is routinely insufficient. Frankly, it is not a popular place for elected officials to suggest taxpayer money be spent, when prosecution and law enforcement also need funding. In some respects, the court systems, prosecutor’s offices, and public defenders are already working at maximum capacity. But somehow, we will have to find a way for courts to observe not only that defendants’ rights are protected in court and at trial, but also in their lawyer’s offices, on the phone or email, when plea discussions are going on.

The added protection for defendants is undoubtedly the right thing to do, and now it is the law. The accused person must have a competent lawyer who communicates with them throughout the process. A person accused of a crime is entitled to that at a bare minimum. How we are going to monitor that will be the question our courts wrestle with in the years to come.

Stan Glisson is an attorney in Bremerton with the firm Glisson, Witt and Altman. Their firm mainly handles DUI and misdemeanor defense, as well as felony defense and civil cases. Glisson earned his law degree at the University of Washington, has worked as a Kitsap County deputy prosecutor, and as a Kitsap and Snohomish defense attorney before entering private practice.


Flashing your headlights: a first amendment right? (Part 1)

Friday, September 23rd, 2011

Blogger’s Note: When a Florida man flashed his headlights to warn oncoming motorists of an upcoming speed trap, he was pulled over and ticketed. He’s taken the fight to court, where he’s filed a class-action lawsuit alleging his free speech rights were violated.

I’ve sought the perspective of two locals — Bremerton defense attorney Stan Glisson and Port Orchard top cop Al Townsend — to give us their take on this unusual but intriguing case. Glisson’s essay will run today while Townsend’s commentary will appear here Saturday. Be sure to read up on the case first

A car passes a hazard on a roadway; maybe a downed tree, maybe an animal in the road, maybe a police speed trap. The driver flashes their headlights as they approach oncoming traffic, to warn them of the peril ahead. The practice has existed as long as I have been driving, usually to warn of a parked police officer running their radar.

It is no surprise that some police officers disapprove of the practice. But in Florida, that disapproval commonly went one step further to ticketing the drivers for flashing their headlights. Police alleged basically that the headlight flashing is a distraction to others, but the perception is that the citations were issued as retribution for disrupting their speed trap.

One Florida man who saw a speed trap and flashed his lights as a warning at other drivers got such a ticket. He is now suing the state, arguing that flashing headlights is a form of communication, a type of ‘speech’ protected by our first amendment. Interestingly, since the lawsuit, Florida police have been instructed to discontinue the practice of issuing such tickets.

Protected speech takes as many forms as we have imagination. It’s one thing to tell a friend you saw a speed trap. It’s another to yell ‘fire’ in a crowded theater. But free speech contains almost everything in between.

The idea of free speech is not always easy to swallow. It is completely fair to think that speeders should get caught and cited, and anyone trying to warn them is obstructing good police work. But if we believe in free speech in this country, it means protecting all speech. The most important speech to protect is the unpopular; it needs protection the most. We are free to talk to each other about what the government is doing, whether war strategy, economic policy, or police activity. The right to speak out against the government was arguably the most important right to our founding fathers, hence its prominent position in the Bill of Rights. The freedom we enjoy to speak our minds has to extend to warnings about speed traps, to literature, to profanity, and yes, on occasion to pasties on baristas.

Where the Florida law suit will end up is anyone’s guess. It speaks volumes that the police have stopped issuing these tickets. If you see a speed trap and want to warn other drivers, flash those lights. If you don’t want to, that’s fine too. We have to respect your decision about what you choose to say or not to say and every idea, popular or not, must be allowed to be heard. As Atticus Finch said, the one thing that doesn’t abide by majority rule is a person’s conscience. So do as your conscience tells you. As for me, I’ll keep flashing my lights.

Stan Glisson is an attorney in Bremerton with the firm Glisson, Witt and Altman. Their firm mainly handles DUI and misdemeanor defense, as well as felony defense and civil cases. Glisson earned his law degree at the University of Washington, has worked as a Kitsap County deputy prosecutor, and as a Kitsap and Snohomish defense attorney before entering private practice.


Self Defense ‘A Tricky Thing’

Tuesday, May 11th, 2010

A fatal shooting over the weekend has generated much discussion on our web site’s comment threads about when self defense is appropriate under the law. Here’s one opinion, from commenter robodrill:

“yes. washingtonians are allowed to shoot fleeing attackers.
if the guy’s story is true, he is innocent.”

I thought it’d be good to consult a lawyer who knows first hand how self defense works in court. Here to give us his analysis — free of any scrutinizing of the current case — is frequent Crime and Justice blog contributor and Bremerton attorney Stan Glisson:

“The statute (9A.16.020) tells us that force is not unlawful “Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary”.
Homicide, specifically, is justified in the eyes of the law when committed either:

(1) In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, or of any other person in his presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished; or

(2) In the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon or in a dwelling, or other place of abode, in which he is. (9A.16.050).

Anyone accused of an assault-type crime can assert that it was done in defense of themselves, of others, or of their property.  Once the defendant raises self defense, the burden shifts to the state to disprove it; in other words, lack of self defense becomes an element the state has to prove. In general, there is no duty to retreat. The defendant can resort to use of force in self defense as long as the defendant had a legal right to be in the place where force was used.  Also, a defendant cannot claim self defense if the defendant created the situation that cause the need for defense. In other words, a person can’t provoke a fight, then claim he or she needed to use force in self defense.
Self defense is a complete defense because it negates the element of intent.  It is a dangerous defense, because the accused basically waives any defense that they didn’t commit the crime: instead, they are arguing that it was justified. You can’t simultaneously argue ‘I didn’t do it’ and ‘I only did it because..’
If a defendant succeeds in presenting self defense, it is possible to recover from the charging entity (state or city) all costs they incurred as a result of the charge. That can be attorney’s fees, lost wages, etc. Basically the jury has said that what they did was permissible, so they should not have had to incur those costs.
The fear of injury justifying self defense is evaluated in terms of the subjective experience of the defendant.  The court must instruct the jury to evaluate the claim of self defense in light of all the circumstances known to the defendant.  Jurors are instructed to place themselves in the defendant’s shoes at the time of the alleged crime, considering what he was experiencing and what was known to him about the victim at the time. So, if there is past knowledge that makes the shooter’s decision more or less understandable, the jury is entitled to hear about that. That can result in the trial being a lot more about the prior history of the victim than would normally be allowed in a trial.
Self defense is a tricky thing. The defendant needs to have ‘clean hands’ for the jury to sympathize with his or her position. They have to relate to why he or she felt that there was no other reasonable option. And the more force was used, the more the jury has to agree with that decision. The defendant’s testimony is very important, as is the perception of the seriousness of the danger they were facing.”


Law in Focus: The Peninsula Checkpoints

Thursday, October 2nd, 2008

(Blogger’s note: Back to help us untangle our often complex legal system is Stan Glisson, a local Bremerton defense attorney. You might remember his last segment explaining the legal woes of Paris Hilton. Here’s his take on the recent stop-and-ID checkpoints the U.S. Border Patrol is conducting on the Olympic Peninsula.)

Since 9/11, Americans’ civil liberties have been limited in the name of national security. Is additional safety worth minor intrusions into our personal lives? Or as Benjamin Franklin said, is a society that trades liberty for safety deserving of neither?

For several months, the U.S. Border Patrol has been increasing its use of checkpoints on the Kitsap Peninsula as a mechanism for seeking out illegal — and possibly terrorist — border crossers. All along the peninsula, residents are reacting with a mix of surprise and outrage: If I haven’t done anything wrong, why am I being stopped and questioned by the police?

(more…)


Law in Focus: The Plight of Paris

Tuesday, June 19th, 2007

Blogger’s Note: Law In Focus is a feature here at the Forum that poses a question to a local attorney concerning a recent court decision or controversial area of law. Keep in mind: these are lawyers we’re talking about. So expect them to have opinions. Feel free to comment on them below or ask a question.

Today’s topic: Paris Hilton has made headlines recently — as she always does — by getting a DUI, driving with a suspended license, and ultimately landing in jail for those crimes. There’s been much talk in the media about the case: did authorities make an example out of her by casting a harsh sentence? Were they too lenient for the same reason? Here to comment on the decision is Stan Glisson, a local Bremerton defense attorney.

Here’s Stan’s opinion:

Paris Hilton has been ordered back to jail by the sentencing judge in her case for violating probation. Many think she has been treated too harshly, receiving a 45 day jail sentence. Statistics compiled by the LA Times certainly suggest that defendants facing similar allegations commonly get less time. But does that make her sentence unfair?

(more…)


Law In Focus: Motel Searches

Tuesday, May 1st, 2007

Blogger’s Note: Law In Focus is intended to be a new feature here at the Forum that will pose a question to a local attorney concerning a recent court decision or controversial area of law. Keep in mind: these are lawyers we’re talking about. So expect them to have opinions. Feel free to comment on them below or ask a question.

Today’s topic: The state supreme court ruled last week that it’s not constitutional for law enforcement to randomly check motel registries if officers have no probable cause that a crime has been committed. Here to comment on the decision is Stan Glisson (pictured), a local Bremerton defense attorney.

Brush up on the state supreme court’s motel search decision by reading Rob Tucker’s story in the Tacoma News Tribune, or see the actual court’s written decision.

Here’s Stan’s opinion:

In Lakewood, it has been common practice for a long time for hotels to cooperate with the “Crime-Free Hotel Motel Program.” Part of the program is that police can come by anytime and read the guest register, learning who is checked in to the hotel and what room they are in. Police could do this with no specific suspicion that any particular person in the hotel is committing a crime.

(more…)


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