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Univ. of South Carolina School of Law

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Saturday, October 6, 2012

Remedial Chaos Theory, Playing A Baseball Game Under Protest & Conditional Pleas

Last night's first-of-its kind wild-card playoff game between the Atlanta Braves and St. Louis Cardinals was marred by controversy.

Here's what happened: The Braves were trailing 6-3 in the bottom of the eighth inning with one out and men on first and second when Andrelton Simmons hit a pop-up into shallow leftfield. Cardinals shortstop Peter Kozma raced back to make the catch and appeared to have the ball measured when he suddenly ducked out of the way as if he had been called off by leftfielder Matt Holliday. However, Holliday had not done so, and the ball dropped untouched for an apparent single that loaded the bases. Except that at the last second before Kozma ducked away, leftfield umpire Sam Holbrook signaled for the infield fly rule, which meant Simmons was automatically out, taking the tying run off base and erasing one of the Braves' five remaining outs

The Braves played the rest of the game under protest, meaning that, although they eventually lost the game, if the protest were upheld, the game would have restarted with one out in the bottom of the eighth inning and the bases loaded.

As many have noted, Holbrook's call was erroneous:

Holbrook erred in invoking the infield fly in that situation for two reasons. The first was that Kozma, though he did ultimately appear to be in position to catch the ball, had to race well into shallow leftfield to make the play. The infield fly rule specifically states that it is to be used on a fair fly ball "which can be caught by an infielder with ordinary effort." Kozma's was not an ordinary effort (which was the argument Braves manager Fredi Gonzalez made in his protest, which was quickly overturned by the MLB officials on hand). Second, the rule states that "when it seems apparent that a batted ball will be an Infield Fly, the umpire shall immediately declare Infield Fly for the benefit of the runners." In this case, Holbrook didn't signal for the infield fly rule until the ball was more than half-way through its descent, mere moments before Kozma flinched and the ball hit the outfield grass.  

But, in order for the Braves' protest to be successful, two elements needed to be satisfied: (1) the League President had to find that the "violation adversely affected the protesting team’s chances of winning the game;" and (2) the error must not have been a judgment call. Because the League, applying Rule 2.00, found that Holbrook's infield fly call was a "judgment call," the Braves' protest was rejected.

So, how is playing an MLB game under protest like entering a conditional plea?

Federal Rule of Criminal Procedure 11(a)(2) states that

With the consent of the court and the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion. A defendant who prevails on appeal may then withdraw the plea.

In other words, a defendant disputing a district court's ruling can enter a conditional guilty or nolo contendere plea, be found guilty, and then appeal the district court's ruling to an appellate court. If, as in the baseball game, the appeal falls on deaf ears, the initial result (the plea or the win) stands. If the appeal is successful, the defendant is returned to his position prior to entering his plea, and a sort of remedial chaos theory ensues (as would have happened if the Braves' protest were granted).

For an example of Federal Rule of Criminal Procedure 11(a)(2), let's look at a case I am giving to my Criminal Adjudication students:

Hugo Ortiz is charged with interference with commerce by robbery and conspiracy to commit the same offense. Ortiz claims that the charges violate the Speedy Trial Act because they were brought more than 30 days after he was transferred from state to federal custody. The district court denies Ortiz’s motion to this effect. Ortiz then enters a guilty plea in connection with an unopposed motion that stated that he "wishes to preserve his appellate rights to enable an appellate court to review the Court's adverse determination of Mr. Ortiz' speedy trial motion." If the appellate court finds a violation of the Speedy Trial Act, can Orrtiz withdraw his guilty plea? See United States v. Ortiz, 687 F.3d 660 (5th Cir. 2012).

The answer, based upon the language of Rule 11(a)(2), is "yes."

So, entering a conditional plea is like playing a baseball game under protest, and a defendant's chances of success might also be similar. First, even if the appellate court agreed with a defendant who enters a conditional plea that the district court committed an error, the appellate court can still find that the error was harmless and preclude the defendant from withdrawing his plea. See, e.g., United States v. Rivera-Nevarez, 418 F.3d 1104, 1111-12 (10th Cir. 2005). In other words, if the appellate court finds that the defendant still would have entered the plea even if the district court did not commit error, the plea stands (like if an erroneous call does not adversly affect a baseball team's chances of winning).

Moreover, many district court rulings are reviewed for abuse of discretion, meaning that a defendant enterting a conditional plea will usually only succeed on appeal if the district judge engaged in something more than a simple judgment error (like the judgment call not being reversible in baseball).

-CM 

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