No Banana, The New Omaha Standard For A Guilty Plea?
February 15, 2017 (Fault Lines) — Sure, Omaha is flyover country, but it is no longer a hick town. It is bumping up against the one million mark (915,312). It has a law school, most of the lawyers in the state practice there, and the city has the largest cadre of state judges of any jurisdiction in Nebraska.
Omaha also has a large share of Nebraska’s crime, too. You would think that prosecutors, public defenders and judges in Omaha would know how to take a guilty plea. You would be double-dogged-damned wrong.
With a hat tip to the Omaha World-Herald and reporter Todd Cooper, consider the following above-the-fold story in the Sunday edition for February 12, 2017.*
The first case in the morning for County Judge Larry Barrett, a former public defender, involved a probation violation where the underlying offense was drunk driving. A certain female offender (Sarah) had been caught drinking while driving again. She was in deep trouble because only a month earlier Judge Barrett had extended leniency by placing her on probation.
The offender was nowhere to be found when the case was called. However, Sarah’s aunt approached the bench and told Judge Barrett, “She is here, but she’s passed out in the car.” Barrett, apparently taken aback, responded, “She’s passed out in her car?” Things went downhill from there.
Barrett, stating the obvious, notes: “Well, there’s not a lot we can do without her being in the courtroom.” The aunt: “I can drag her up here if that’s what we have to do.”
Barrett turned to Assistant City Prosecutor Kevin Slimp. “I guess if she’s around,” Slimp says. And then the aunt and a court official went and got the defendant. In a wheel chair because she was evidently too drunk to walk, Sarah was wheeled into Courtroom 29.
The state public defender, with 16 years of experience, entered a guilty plea to the probation violation, and, from the wheel chair, Sarah more or less went along. A rough, very rough, semblance of the colloquy long required by Boykin v. Alabama ensued. No one tooks the time to pursue the obvious fact that Sarah was drunker than a skunk. For example, there was no question like this: “Tell me when you had your last drink?”
Evidently, the guilty plea was “knowing, intelligent and voluntary” in Douglas County, Nebraska. Thus, off Sarah went to corrections to serve 90 days in jail. But before stopping there, the sheriff’s deputies, to their credit, take her to a hospital. She received an IV and time to recuperate before she was taken to jail. Her blood alcohol level was .44 — 5½ times the legal limit for driving, and a level so high that it could lead to death.
In the end, the public defender who represented Sarah resigned, the judge said he didn’t think Sarah was drunk, the prosecutor in attendance did not remember the case except for the plea from the wheelchair, and the prosecutor’s boss defended him saying,
It wasn’t like she blurted out “banana” to a yes-no question.
Sarah decided not to challenge her plea.
Draw whatever conclusion you want from the foregoing. As for myself,
Richard G. Kopf
Senior United States District Judge (Nebraska)
*Much of the story is based upon the digital audio recording of the proceeding. The reporter observed that Judge Barrett encouraged him to listen to the proceedings.