Wednesday, July 16, 2014
Letter of the Law, Take 2: Supreme Court of Wisconsin Finds Defendant's Testimony Inadmissible Under Plea Deal
Last September, I posted an entry about the opinion of the Court of Appeals of Wisconsin in State v. Myrick, 2013 WL 4734062 (Wis.App. 2013). Here was the statement of facts I gave in that post:
assume that a prosecutor sends defense counsel a letter "making the following offer of resolution based on [the defendant] being willing to cooperate in the prosecution of numerous cases involving [another defendant]." Also, assume that the letter indicates that the prosecutor will make a sentencing recommendation if the defendant, inter alia, testifies at the preliminary examination for another defendant. Finally, assume that the defendant complies with this requirement but then stops cooperating with the prosecution after he believes that the State leaked incriminatory information to the press for [a] newspaper article. At the defendant's ensuing trial, can the prosecution introduce the defendant's preliminary examination testimony, or is such testimony inadmissible under Wisconsin Rule of Evidence 904.10?
Wisconsin Rule of Evidence 904.10 provides that
Evidence of a plea of guilty, later withdrawn, or a plea of no contest, or of an offer to the court or prosecuting attorney to plead guilty or no contest to the crime charged or any other crime, or in civil forfeiture actions, is not admissible in any civil or criminal proceeding against the person who made the plea or offer or one liable for the person's conduct. Evidence of statements made in court or to the prosecuting attorney in connection with any of the foregoing pleas or offers is not admissible.
Applying this text, the Court of Appeals of Wisconsin deemed the testimony inadmissible and reversed the conviction of Raphfael Myrick, the defendant. So, what did the Supreme Court of Wisconsin just conclude in State v. Myrick, 2014 WL 3360376 (Wis. 2014)?
Well, the court pretty easily sided with the Court of Appeals, finding that
We conclude Myrick testified at Winston's preliminary hearing in connection with his offer to plead guilty that the State had not then accepted. The prosecutor's letter discussed "settlement short of trial," which the court of appeals has previously held is an "implicit" way of discussing a plea....The prosecutor's letter said that if Myrick debriefed the State and provided testimony when asked, the State "w [ould] amend the charge regarding the murder of Marquise Harris to one of Felony Murder with an underlying charge of Armed Robbery" and "recommend a period of 12 to 13 years of initial confinement."
True to the public defender's description of plea bargaining, the remainder of negotiations were not perfectly memorialized in writing. We do know, however, that Myrick began taking the steps the letter said were necessary to keep the possibility of a plea agreement on the table by debriefing the State on the same day the letter was dated. We also know that when the parties appeared back in court four days later, the prosecutor informed the circuit court that an agreement had been reached and that Myrick "was willing to plead guilty to the charge of felony murder." Finally, we know that after Myrick testified at Winston's preliminary hearing, the parties requested a date for entry of a plea. From these circumstances, we conclude that Myrick exhibited a subjective expectation to negotiate a plea, and that Myrick's expectation was objectively reasonable.
As you can see from this last sentence, the Supreme Court of Wisconsin applied the near universally adopted test from United States v. Robertson, which requires proof of two elements to have statements deemed inadmissible as made in connection with plea negotiations: (1) that the defendant subjectively expected that he was negotiating a plea; and (2) that this expectation was objectively reasonable given the the totality of the circumstances.