Monday, May 01, 2017

U.S. v. Velazquez (9th Cir. - May 1, 2017)

Guadalupe Velazquez is looking at a ton of time in prison.  A ton.  She's caught up in a huge drug conspiracy with weapons, etc.

That's no fun for anyone.  Least of all for her.

She has an attorney, but she ends up very -- very -- frustrated with him.  The government gives her a plea deal, but she doesn't want to accept it.  Because it's serious time.  And she doesn't feel like she has a good (or good enough) attorney.

The district court and the magistrate judge do what you often see in these types of cases.  They push Velazquez to accept her lawyer and take the deal.  Not hard.  Not relentlessly.  Softly.  But for those of us who've seen this happen -- in person and in court -- time and time again, it's not difficult to see the reality of what's going down.

Which is not to say it's necessarily reversible error.  And, IMHO, it's definitely not mean-spirited.  All involved -- from the lawyer on up -- sees someone who's her own worst enemy.  Who's going to lose a favorable plea deal as a result of her own personality and/or inability to deal with things as they are.

You see that time and time again.  Both on the criminal side as well as on the civil side.  People are people.  Litigation is stressful.  Especially when you're talking about having to admit a crime and then go to prison for a long time.  Even the most sophisticated of us might not make wise choices in such a context.  And criminal defendants are often far from exceptionally sophisticated.

So everyone tries to help her out.  And, ultimately, they get her to take the deal.  She's then sentenced to ten years in prison.

And promptly appeals.

The Ninth Circuit ultimately reverses and allows her to withdraw her plea.  When you read the opinion, you can see why.  She definitely had a bad relationship with her attorney.  For whatever reason (and, to be clear, I'm not at all necessarily blaming the lawyer).  There was time to remedy this situation, and the district court erred by not doing so.

Judge Kozinski writes a brief concurrence.  The first two sentences of which are definitely right.  "I join Judge Friedland’s thorough opinion without reservation. I write only to note that the judges below acted with what they believed to be Velazquez’s best interest at heart."  I'm totally sure that's correct.  I have zero doubt that everyone was trying to stop Ms. Velazquez from metaphorically shooting herself in the head.

Ditto for the next sentence:  "Even now, withdrawing from the plea may not be wise, but it’s Velazquez’s choice to make."  Absolutely right.

But the last sentence of Judge Kozinski's concurrence strikes me as somewhat strange:  "I hope and trust that the government will accept her choice with generosity and compassion."


Now, that's definitely a nice thing to say.  And it's sweet to see a judge try to put a thumb on the scale, ever so slightly, to try to convince the government to do what's right.  A little moral suasion is often a good thing.  No threat here.  Just an entreaty to do what's right.

Yet I wonder what motivated that line?

I mean, sure, at one level, I absolutely hope that the government treats Ms. Velazquez with generosity and compassion.  I hope that every criminal defendant receives such treatment.  From Ms. Velazquez on down.

But I wonder why Judge Kozinski singles out Ms. Velazquez.  The government has already treated her reasonably well, I imagine (at least from its perspective).  She's basically caught dead to rights and is looking at 40 years.  There's little chance she's actually going to get off at trial.  But they nonetheless offer her a deal where she might end up serving five and ends up serving ten.

Now, ten years is a lot of time.  But, at least under the guidelines, she's looking at way more.  But the government offers her a break in return for making things easier on it.  A big break.

To which Ms. Velazquez responds by making things complicated.  Very complicated.  And if she elects to withdraw her plea at this point, super complicated.

Okay.  Yep.  That's definitely her choice to make.  Her life, her call.

But at the point at which the government has to go to trial (or even defend an appeal), that's a hassle.  We understandably tend not to give people as good of deals at that point.

So if Ms. Velazquez elects, on remand, to obtain the "benefits" of her victory, and withdraws her plea and forces a trial, I'm just not entirely sure what screams out about this case that would make me want to remind the government that it's a great thing to go easy.  To be generous and compassionate.

Again:  Yes, they should do that.  Absolutely.  Don't insist upon 40 years just because you can.  That's not justice.

Similarly, don't retaliate.  Don't get angry and push for the maximum just because she made you go to trial (and beat you in the Ninth Circuit).  That wouldn't be right.

And, yes, this may well be one of those cases in which the underlying laws are incredibly, incredibly harsh.  Take that into account.

But understand that you get a plea deal in part because you're making things easier for everyone.  If you don't do that, don't expect the level of "generosity and compassion" you received before.

We should still treat you as a person.  We should still love you.  We should still seek justice, and only such punishment as would be just.

But you're going to serve more time.  I'm sorry.  That's just the way things work.

Even if that's something that's incredibly hard for you to internalize when you're stuck in an incredibly stressful situation with an attorney you don't respect and are looking at spending a decade in prison.