An insidious new part of the standard Plea Colloquy has crept into the REGJB. Silently it has spread like the mold in the AC vents, from courtroom to courtroom, Judge to Judge.
Rumpole aims to be the Lysol spray.
The objectionable portion of the colloquy is where the Judge asks the defendant if he/she is aware of any physical evidence that should have been DNA tested; whether the defendant is aware of any additional exculpatory evidence and whether the Defendant believes his/her attorney should have done more to have evidence tested.
Now why are they asking that?
We view it as the thin edge of a larger wedge designed to shatter the Great Writ. We are speaking of the Writ of habeus corpus incorporated in Florida’s Criminal Procedure rule 3.850.
Lets face it: Judges and prosecutors hate those Rule 3.850 motions. Yet, as even the most cynical among them would admit, 3.850/post conviction relief litigation has resulted in the exoneration of over a hundred individuals on death row nationwide, and hundreds if not thousands of Florida inmates convicted of various crimes over the years.
Do Judges really believe that by asking the Defendant to essentially waive any additional testing of evidence that if a real question of innocence was raised at a later stage that it would be fair and proper to use the plea colloquy to prohibit the testing of the evidence?
If the answer is “No” then can we assume that the motives behind these questions are as pure and innocent as the driven Florida snow?
Is a Judge who just denied the motion for continuance which precipitated the plea to begin with now going to stop everything and reset the case for a few months because a defendant says during the plea that- since you're asking- he really would like an independent lab to retest the wine glass?
Which is it?
Because if the plea colloquy is not a setup for use against the defendant at a later date, why stop with asking about DNA testing? Why not inquire about whether the defendant is satisifed with the questions asked at deposition, and whether the attorney has shared with the client the cross examination questions taken from the depo question and answers; is the defendant satisified with the the voire dire questions the attorney has prepared, the opening and closing statements the attorneys was ready to give, and has the defendant reviewed the possible JOA motion?
We recognize the court’s legitimate obligation to inquire whether a plea is knowing, intelligent, and voluntary. Should the colloquy go into a complete discussion of defense strategy, and attorney competence as well?
Why is it that we are so suspicious of our robed readers?
See You In Court reading our Sun Tzu, who wrote: Beware Judges who smile and bear gifts (or words to that effect).