On the Lawyer Who Should Hang His Head in Shame

On November 7, 2011, counsel for Gilbert filed a no-error brief pursuant to Anders v.California, 386 U.S. 738, 87 S.Ct. 1396 (1967). On March 30, 2012, the majority ordered briefing on the issues of whether the trial court had the authority to grant the state's motion to vacate the plea. State v. Gilbert, lst Dist. No. C-110382, 2012-Ohio-1366.

That's from the prosecutor's memorandum urging the Supreme Court of Ohio to hear its appeal in State v. Gilbert.

Which the court did.  And Monday, in a 5-2 decision, the court affirmed the court of appeals.  Here's the Cliff's Notes version, taken from the court's opinion.

After he was indicted on several charges, Gilbert agreed in a plea agreement to testify against his father, Ruben Jordan, in a murder case. In exchange, some of the charges against Gilbert were amended or dismissed. The trial court proceeded to sentence Gilbert without waiting for him to testify against his father as anticipated in the plea agreement. Later, after he began serving his time in prison, he refused to testify as promised. A year after he was sentenced, the state claimed that Gilbert had breached the plea agreement by failing to give truthful testimony against his father. He was brought back to court from prison, the trial court threw out the former plea, and Gilbert entered a second plea. He was resentenced, and he then appealed to the First District Court of Appeals. That court reversed the trial court’s decision, holding that the trial court did not have the authority to reconsider its own final judgment. We agree. 

It's good for Gilbert, and probably a few other guys.  But it's not likely to make much difference in the long run.  There's a simple way for courts and prosecutors to avoid having this happen in the future.  (No, I'm not going to say how; they can figure it out for themselves - and they will.)  But if you read that opening blurb at the top of this post, you've likely already figure out that I'm not much concerned here with the substance of the court's decision.  The part that interests me is how the case got there.  And for that, we need to go back to the trial court.

In exchange for Kareem Gilbert's agreement to testify against his father, the state reduced the charges he faced and let him plead guilty to less.  He was sentenced to a flat term of 18 years in prison.  That's a hell of a long time, but it isn't death in prison.  It isn't even life with a chance of parole.  It gets him out when he's something like 36 years old.

Except, well, Gilbert reneged.  Not gonna do it, he said.  So the prosecutor went and got the trial court to undo his conviction.  And after some more negotiation and wheedling, Gilbert entered another plea and this time got sentenced to 18 years but with a life tail.  Which means he serves out his days at the pleasure of the parole board.  Which means, frankly, that he doesn't get out, if he ever does, until long after he's 36.  Maybe 50.  Maybe only in a pine box.

And the judge, understanding his duty (in a limited sort of way) appointed a lawyer to appeal his decision.

That lawyer claimed, and we must assume he told the truth, that he diligently examined what happened in the trial court.  He read transcripts, studied motions and memoranda, examined court orders, did research.  And he concluded not only that he couldn't win an appeal for Mr. Gilbert, not only that everything he could argue would be a loser, but that anything he could argue would be wholly frivolous.  Just total nonsense.

Which he told Mr. Gilber in a letter.  And told the court of appeals in a brief.  In which he explained that his client had been lawfully fucked and that there was nothing to be done for him.  He couldn't make an argument in good faith that the application, modification, or even reversal of existing law would help the client.  Nor could he find any way in good faith to ask that the court make new law.

And so he asked to be allowed to get off the case.  (And to be paid for the time he put in, I imagine.)  

They're called Anders briefs after Anders v. California in which the U.S. Supremes set out the basic rules for what a lawyer should do when he can't find anything to say that might benefit his client on appeal.  I've written about them before.  (See here and here and here.)

Done properly, an Anders brief includes an explanation to the court of appeals of how the lawyer studied the record and did research.  Then it then explains to the court that maybe there are these issues, but the client should lose them, and here's why.

An Anders brief is, then, the ultimate sell out.  The lawyer who files one not only doesn't help the client, he affirmatively explains why his client should lose.

And then, then the court of appeals is supposed to scour the record looking for something that's not frivolous.  Maybe not a winner, but worthy of some attention.  Worth a shot.  Should they find it - and in very rare cases they do (to the, I hope, deep shame and lesson learned of the lawyer who filed the Anders) - they then appoint a new lawyer to argue that issue.

As happened in Kareem Gilbert's case.

Based upon our review of the record and the applicable law, we do not agree with appointed counsel’s assertion that Gilbert’s appeal is wholly frivolous. We find that an arguable issue exists as to whether, after the 2010 judgment of conviction had been journalized, the trial court had authority to grant the state’s 2011 motion to vacate Gilbert’s pleas, and then to reconsider its own valid final judgment and resentence Gilbert. 

And so, as they were supposed to, they appointed a new lawyer.  Who convinced the court of appeals that Gilbert really did have a winning issue.  And that he was improperly resentenced.  The proper sentence was as it was from the start.  18 years.  Which as I said is a hell of a long time, but it isn't death in prison.  It isn't even life with a chance of parole.  It gets him out when he's something like 36 years old.  And it beats hell out of 18-life.

And the state asked the Ohio Supreme Court to hear the case, which they did.  And that same lawyer, the one appointed after the first once couldn't come up with anything even worth bothering to argue about, he fought the state in the Ohio Supreme Court.

And he won.

Which is damn good for Kareem Gilbert.

And a serious lesson to us all.