A Miscarriage of Justice

When the criminal justice system fails, it is, perhaps, normal to expect someone to take responsibility for the failure. The rhetoric of prosecution is steeped in the ethic of personal responsibility. Horrible things are done to people in the name of holding them accountable for what they have done.

Who will take responsibility for the failure in the case of State v. Pentland, decided just this past week by the Connecticut Supreme Court?

I wrote about the case before on these pages, but I did not use the name of the defendant. The case is mine. I wrote here and in a weekly legal newspaper in my home state of Connecticut to chide the state Supreme Court, which sat on a decision in the matter for 18 months. I wrote reminding the court that justice delayed is justice denied. The very next week, the Court acted, prompted to act, finally, I suppose, by something like shame. The court should feel shame over its decision. Perhaps they why it sat on it for so long. Coming home with a failing grade on a report card is never pleasant.

Robert Pentland was represented by Mickey Sherman at the time of trial. He faced charges arising from the state's claim that he had fondled a child. At the time of trial, Mickey scored a coup. Mr. Pentland pleaded under the Alford doctrine to two misdemeanors, was given a suspended sentence and was told by his lawyer and the judge that he would not have to register as a sex offender. (The state merely stood by and said nothing, a form of adoption of omission.) The client had every reason to believe he would face a future unclouded by the manifest cruelty and absurdity of the new sex offender regime: humiliating "treatment" by half-ass probation officers bent on humiliation, and, perhaps titillation; registration as an offender, a felony conviction; imprisonment.

But storm clouds were on the horizon. Mickey should have seen them. Someone should have warned the client. There was trouble written all over this plea.

First and foremost, the courts typically do not accept an Alford plea in a sex case. Indeed, state statutes make clear than an Alford plea is no bar to treatment as a sex offender.

Plea bargaining is the work of the devil, and it is at the heart of what lawyers do. Every case must be prepared for trial. But a lawyer's job is to provide clients with choices at every step of the proceedings. Many clients are ill suited to face the risk of trial. Many choose to work out a deal of some sort. Even innocent men, like Mr. Pentland, can choose to avoid the risk of conviction by taking a deal. Mr. Pentland thought he had scored a hollow win of sorts with his plea: just a brief period of probation. Indeed, he never admitted to committing a crime at all: An Alford plea permits a client to enter a plea merely by acknowledging that the state's evidence, if believed by a jury, could carry consequences far worse than those for which he bargained.

Imagine Mr. Pentland's surprise when the state claimed he violated his probation by not registering as a sex offender. Didn't his lawyer and the judge tell him he did not have to register? Didn't the state stand by silently as this information was relayed to him? Wasn't this a condition of the plea he entered?

Mr. Pentland litigated this issue while on probation. He incurred the expense of new counsel, one of them being me. When the trial court told him simply, "Oops, I guess I was wrong, register or go to prison," Mr. Pentland registered. I took an appeal, and off we went to the state's Supreme Court.

The Court's ruling is nothing if not cynical. Mr. Pentland's remedy, the court held, was to seek to vacate his plea. But he must register. So sorry for the fact that your position in the world changed as a result of the plea; so sorry that you relied on a deal approved by a judge of the Superior Court; so sorry that both your lawyer, the state and the court failed you. The court refused to enforce the terms of the plea bargain Mr. Pentland struck.

The court, in essence, failed to take responsibility for a miscarriage of justice. Instead, it transferred responsibility back to the client.

What shocks about the decision is its souless logic. "Go ahead and move to vacate your plea," it said. Of course, that carries with it the risk of a new trial, a risk the client bargained to avoid. Had the plea been vacated, all the effort that he had put into complying with probation would be for nought. Only the State can rape you and then send a bill for its services.

I had hoped for justice in this case. I had hoped that the Court will say what is said on used car lots all the time: a deal is a deal. But the implied warranty of good faith and fair dealing is more than we can expect at the time of a plea, apparently.

Mr. Pentland is now discharged from probation. Customarily, that means that he is no longer in custody and the remedy of a habeas corpus petition is foreclosed. But given the United States Supreme Court's recent ruling about the immigration consequences of a plea as a material factor in disposition, perhaps Mr. Pentland should turn to the federal courts for habeas relief. The Connecticut courts have mocked him. Perhaps the federal courts will recognize that being placed on the sex offender registry is the equivalent of internal exile, and that this man was denied justice by not just the trial court, but the state Supreme Court. This is no mere incidental consequence to a plea.

State v. Pentland is a miscarriage of justice. The pity of it all is that the Connecticut Supreme Court. The case proves that when it comes to sex offenses, the defendant gets screwed.