Recorded Jail Calls Causing Problems Again

Let’s face it, we have too many criminal cases, and not enough juries to try them. That’s OK, because most cases never make it to trial. The legislature knows that the majority of criminal cases are plead to, so it is important to protect the plea process. As you will see below, there are several Florida laws designed to keep plea information away from the jury.

In Florida, we defense attorneys are not entitled to tell the jury about sentencing issues. It doesn’t seem fair that the citizens are kept in the dark about the consequences of their verdict–but those are the rules. And, the difference between a plea and a loss at trial can be devastating. For example, almost twenty years ago, I was a public defender in front of Judge Conrad (great judge, but harsh). It was my first week in “felony”, and I was shadowing my colleague, whose client was offered one month probation on a misdemeanor for a charges carrying a maximum of 45 years in prison. The client rejected the one month probationary offer and he lost at trial. Judge Conrad gave him 42 years in prison. I will never forget that. But, that’s why some folks simply take a plea deal–even though they’re innocent–because the risk of losing is too great.

So, we know that the jury is not entitled to hear anything about sentencing. Is the jury entitled to learn of plea negotiations? Can they hear anything connected to a plea? It doesn’t seem fair to tell the jury about plea negotiations, knowing that they cannot be told about sentencing options. Take our case listed above. Would the jury have been horrified to discover a 42 year prison sentence after hearing about a one month probation offer?

The question for the day is, to what extent can a jury be told of plea negotiations?

In Markel Bass v. State, 1D12-3284 (Fla. 1st DCA, August 20, 2014), Mr. Bass was in jail. He called his mom, like any good son would do. It should come as no surprise that many inmates review various plea scenarios with their family. The recorded conversation with mom went like this:

Bass: I will . . . I will take some [prison], but I’m not going to take no 20 years.

Mom: What you willing to take?

Bass: I . . . I would take like 15 . . . like I told [my attorney], I say, if you will give me 15 or 16 years. She say they not going to go off of 20 years.

As I’ve been saying for years, these phone calls are recorded and reviewed by prosecutors. And just like clockwork, the prosecutor played the above conversation for the jury as evidence of Bass’ guilt (is this really evidence of guilt?). The phone call contained no confession whatsoever. I have to admit, confessions are probably admissible, but this is talk of a plea.

Bass’ defense attorney objected to the recording, because Florida law does not permit admission of anything connected with a plea–or does it? Specifically, Section 90.410 of the Florida Statutes states that evidence of or statements made in connection with “an offer to plead guilty … to the crime charge or any other crime is inadmissible in any civil or criminal proceeding”. Also, l Florida Rules of Criminal Procedure, 3.172(i) reads: statements made in connection with a plea offer are “not admissible in any civil or criminal proceeding against the person who made the plea or offer.” In spite of both the Florida Statutes and Criminal Rules, Bass’ judge let the jury hear the phone call. And that, of course, is why we have an appeal to talk about.

Much to my amazement, the appeals court found the recording admissible. The court reasoned that Mr. Bass “was simply responding to his mother’s query about how long a sentence he would be ‘willing to take’ “, and that the “statements were not made ‘in connection with’ an offer to plead, as contemplated by section 90.410 and rule 3.172(i)”. id. Hum. So, because mom used the words “willing to take” rather than prefacing the question in legalese, the conversation was admissible. According to the court, mom should have first told her son, “in connection with making an offer to settle your case, what you willing to take?” Because mom shortened it up to a mere five words, several judges with juris doctorates couldn’t figure out that this discussion was in connection with an offer.

The court incorrectly ruled that statements in connection with a plea offer are only protected at the very end of the process, in their final form, or as the court put it, when the “involved statements [are] made either to prosecuting authorities or to the court“. Id. Where does it say that in the rules, or statutes? Sure, the legislature could add that phrase to both the Rules and the Statutes–but they have not done so. The Bass court fails to realize that plea offers have statements “connected to them” prior to the actual conveyance of the offer. The court’s bumbling through this issue reminds me of a clueless Chevy Chase in his movie, Fletch. Fletch is investigating how someone died at the hospital:

Dr. Dolan: You know, it’s a shame about Ed.

Fletch: Oh, it was. Yeah, it was really a shame. To go so suddenly like that.

Dr. Dolan: He was dying for years.

Fletch: Sure, but… the end was very… very sudden.

Dr. Dolan: He was in intensive care for eight weeks.

Fletch: Yeah, but I mean the very end, when he actually died. That was extremely sudden.

So, every single discussion regarding a plea offer is admissible–but the actual end product is protected only if the offer is “made either to prosecuting authorities or to the court”. Admitting all of the discussions leading up to a plea offer defeats the whole purpose of having 90.410 and Rule 3.172(i). Why protect an offer made to the prosecutor or judge, but let the jury hear the discussions leading up to that offer? Pointless, right? Is that what the legislature meant by protecting statements “in connection with” an offer?

We all know that a defendant is entitled to make an offer to the state. Prosecutors don’t have to make a plea offer, that’s not their job (believe it or not). This happens all the time (Hey Ms. Prosecutor, can we resolve this with time served? That’s a defendant’s plea offer in it’s simplest form). The problem is, plea offers can take a while to formulate. It is an important decision, a decision that affects mom, dad, wife, kids, boss, and friends. Why not discuss it with family first? Under this decision, the State may introduce all of the discussions leading up to a plea offer, but cannot admit the “statements made either to prosecuting authorities or to the court.”

Does this seem right to you?