Former Louisiana Gov. Earl Long once said, “Don’t write anything you can phone. Don’t phone anything you can talk. Don’t talk anything you can whisper. Don’t whisper anything you can smile. Don’t smile anything you can nod. Don’t nod anything you can wink.”
Since the time of Gov. Long, criminal defense lawyers, whose clients enjoy the right to remain silent, have expanded upon this advice and told their clients not to post on Facebook anything they can Tweet; not to Tweet anything they can Instagram (if that is even a verb); not to Instagram anything they can text; and never, ever, ever, ever, ever, ever, ever, ever, ever email.
Because of advice like this, it may not be in a criminal defense lawyer’s nature to feel the duty to “speak up.” However, prosecutors and criminal defense lawyers need to know that there are times they are required to correct the trial court’s record. For example, the Indiana Rules of Professional Conduct imposes a duty on all attorneys to “correct a false statement of material fact or law previously made to the tribunal by the lawyer” or “take reasonable remedial measures” if a witness “called by the lawyer, has offered material evidence and the lawyer comes to [later] know of its falsity.” See Ind. Professional Conduct Rule 3.3(a). It should be noted that compliance with this rule is required even if a disclosure of information is protected under Rule 1.6. See Prof. Cond. R. 3.3(c).
In the recent unpublished decision of Dickerhoff v. State, 2015 Ind. App. Unpub. LEXIS 598, *11 (Ind. Ct. App. May 29, 2015), Judge Margret Robb, in her concurring opinion, noted that attorneys have a “responsibility to correct any obvious [court] errors at the time they are committed.” This concurring opinion was based on Mechling v. State, 16 N.E.3d 1015, 1016 (Ind. Ct. App. 2014). In Mechling, the defendant signed a plea agreement that included a waiver of his right to appeal his sentence. However, after the sentence had been imposed, the trial court advised Mechling that he had a right to appeal his sentence and that the court would appoint an appellate attorney. Id.
Neither the state nor the defense counsel corrected the trial court’s ruling. In an attempt to have the defendant’s sentence reviewed on appeal, the defendant argued that the state failed to object at the sentencing hearing to the “trial court’s erroneous advisement and thus should be estopped from enforcing the plea agreement’s waiver provisions.” Id. at 1017. The Court of Appeals stated that “[w]hile some sort of objection or correction from the State is undoubtedly ideal, we do not believe a duty to speak existed here such that the application of estoppel is warranted.” Id. at 1018. Furthermore, the Court of Appeals could not “say there was a duty to object to a statement that carried no legal effect” due to the fact that judge’s erroneous advisement came after the sentencing hearing and was not an inducement to the plea agreement. Id. The Court of Appeals held that the right to appeal had been waived.
Dickerhoff presented a slightly different situation, however. In Dickerhoff, the defendant signed a waiver of his right to an appeal, but the trial court erroneously advised him that he had the right to appeal prior to his entering the plea agreement. “Because the trial court gave Dickerhoff conflicting information regarding his right to appeal before he entered into his plea agreement, we cannot say that he knowingly, voluntarily, and intelligently waived his right to appeal.” Dickerhoff, 2015 Ind. App. Unpub. LEXIS 598 at *7. Therefore, Dickerhoff benefited from the trial court error and the Court of Appeal reviewed his sentence.
In the concurring opinion in Dickerhoff, Judge Robb commented that “time, effort, and resources have been expended briefing and deciding a sentencing appeal that Dickerhoff had originally bargained away.” Id. at *11-12. In addition, Judge Robb stated that the “attorneys representing the State and the defendant are both officers of the court,” and made clear the attorneys had a responsibility to correct obvious trial court errors by concluding that the attorneys in the case “should have corrected the trial judge when he misspoke.” Id. at * 11. Therefore, the defense attorney had a duty to correct a trial court error that gave his client the benefit of appellate review of his sentence.
So thinking back to Gov. Long’s advice, when the trial court makes an obvious error, you should not smile, nod, whisper or phone. For that matter, it probably wouldn’t do any good to Tweet or even Instagram what happened. But you should speak up and let the trial court correct what it has done, even if it makes poor Gov. Long a little uncomfortable.•
James J. Bell and K. Michael Gaerte are attorneys with Bingham Greenebaum Doll LLP. They assist lawyers and judges with professional liability and legal ethics issues. They also practice in criminal defense and are regular speakers on criminal defense and ethics topics. They can be reached at email@example.com or firstname.lastname@example.org. The opinions expressed are those of the authors.