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Federal Judiciary

: California Appellate Report

U.S. v. Johnson (9th Cir. - Nov. 29, 2010)

By Shaun Martin

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I just stepped off a plane at SFO, am giving a talk today (alongside Gerald Uelmen and Justice Grodin) on the legacy of Chief Justice George (feel free to check it out), and am flying back this afternoon, so I won't have the ability to read opinions today. Sadly.

But I can still talk about opinions from a little bit ago that struck my fancy. For example, in an otherwise nonremarkable opinion, the Ninth Circuit recites the following plea colloquy in a case in which the deal was that defendant would plea guilty and waive his right to appeal. Discourse that anyone who's spent some time in a federal district court will immediately recognize as something that happens all the time:

"THE COURT: Sir, do you understand that by entering into this agreement and pleading guilty you?ve agreed to give up your right to appeal any sentence you receive in accordance with the terms of this agreement?
JOHNSON: Yes.
THE COURT: Did you discuss waiving your right to appeal with your lawyer?
JOHNSON: Yes.
THE COURT: And based on that conversation, having considered the matter, do you wish to give up your right to appeal on the terms and conditions set forth in the plea agreement?
JOHNSON: No."

Oopsies. Wrong answer. So do we engage in extensive conversation with the defendant to make sure he really and truly knows what's going on? Let's see. Immediately after the "No," here's what happens:

"THE COURT: Okay. Why don?t we try that again. Okay. As part of this plea agreement there are certain conditions that he just recited that you?ve agreed to waive that pertain to your right to appeal. Do you understand that?
JOHNSON: Yes.
THE COURT: Okay. Now, do you still wish to go forward with the plea agreement and agree to waive your right to appeal on the terms and conditions set forth in the plea agreement?
JOHNSON: Yes."

Ah. The Magical "Yes." That's what we were looking for. Glad we got the kabuki play back on track.

Full post as published by California Appellate Report on December 09, 2010 (boomark / email).