Yodelling Llama

For the most part, the court-provided guilty plea forms, riddled with check boxes, save a great deal of time and effort. However a careless stray mark can have a lot of unintended consequences. Case in point:

Client charged with three counts of telephone harassment under three different cause numbers. In one case, the alleged victim managed to record my client making a number of statements on her home answering machine. I negotiated to have her plead to the one with the recordings, with the other two dismissed as part of the plea agreement. Good deal, right? Unfortunately, when I filled out the plea form, I wrote down the wrong cause number. And, more to the point, I uncharacteristically checked the box that incorporated the probable cause statement by reference. Usually I write out a statement that provides the barest of factual bases. Smart on a number of levels. But my laziness got the better of me, and rather than document the dozens of phone calls involved, I checked the box. Which meant when the judge went to find whether the plea had a factual basis, because I had written down the wrong cause number, she read the wrong probable cause statement. She understandably didn’t detect that anything was wrong.

Figured out the error after the pre-sentencing investigation had been completed and made reference to a different set of facts than expected. Tried to move to correct the “scrivener’s error.” No dice. Was told because the record clearly reflected a set of dates that only made sense with regard to the cause number used, not the cause number intended, it went beyond a mere scrivener’s error. Judge suggested as a remedy a withdraw of the guilty plea and a do-over. Set the motion hearing for New Year’s Eve.

After some thought and discussion with other attorneys, decided to withdraw as counsel. Didn’t want to prejudice the client with my inability to make a serious stab at an ineffective assistance of counsel argument. Judge, perhaps out of spite, scheduling a hearing on that motion for Christmas Eve. A day I had up to that point meticulously kept free.

Lesson: always write out a statement. For all the usual reasons, but also because it adds another layer of protection against scrivener’s errors. Larger lesson: use caution in the face of check boxes. Those dangerous little buggers.