Concerns and Misgivings about the King v CCX

[Viteu]

I am sharing correspondence that I had with the general cort, prosecutor, and public defender about certain concerns and misgivings I have about the Cort accepting a plea that Talossan law does not recognize, and accepting a plea that will impose criminal liability without the consent of the defendant.

My reasons for doing this by private correspondence, or "in chambers" if you will, are stated therein.

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Also stated therein is that I will recuse myself from this matter should it get to the CpI. 

[Viteu]

I am going to keep commenting.

Miestra presented absolutely no argument as to how or why a plea of nolo contendere is available under Talossan law.

And I must adamantly criticize and continue to raise the alarm of an attorney pleading guilty without their client's consent. I do intend to file an ethics complaint with the National Talossa Bar.

This is literally steamrolling over civil liberties because the public defender thinks a trial is a waste of time, which sets the precedent that all criminal trials are a waste of time.

[Üc R. Tärfă]

I was under the impression that lacking a specific statutory law the Court was able to determine if something is available/acceptable or not...

[Viteu]

I was under the impression that lacking a specific statutory law the Court was able to determine if something is available/acceptable or not...

That's not how the common law works.  The CpI can recognize something at common law, but in the context of a plea of nolo contendere, I laid out that this is not a common-law right; it's a statutory right.  I am reposting my initial message (unedited) sent in-chambers and available in the screenshot.

And I must once more point out that even if you disagree with my position on nolo contendere, the reality is that setting a precedent where a defense attorney can plead guilty or accept criminal liability on behalf of their client without the client's consent is patently unethical, unacceptable, and, frankly, disgusting.

Your Honor Nordselvă and Counsel:

I want to commend you all on the handling of His Majesty The King v Cauvesc Carlüs Xheraltescu.  While it is great that we rarely have criminal matters to adjudicate in Talossa, the downside is that we do not have fleshed out criminal procedure when they do arise.  I think you all did a fantastic job with what you have in front of you.

I am writing, however, to express certain misgivings that I have about the plea bargain, how certain things proceeded, and the precedent it might set.  What I will do is outline my concerns and offer a solution.  The reason that I am writing you is because I do not see how this matter could make its way to the CpI.  I hope that you can divorce whatever feelings that you may have towards me and carefully consider the merits of my position. 

Also, should this matter somehow come up on appeal, I will recuse myself in light of this correspondence. 

First, neither the Organic Law nor el Lexhatx provide for a plea of nolo contendere (i.e. no contest).  The Hearing Rules and Procedure, to the extent that have any authority, only provide for a plea of (1) guilty as charged; (2) guilty of a lesser charge or charges; or (3) not guilty as charge, and not a plea of nolo contendere. 

Nolo contendere is not a right, it is a statutory privilege.  It has its origins in English common law going back to Henry VIII but has been absent from that jurisdiction for centuries—the last reported criminal matter appears to have been from 1702. 

In the United States, US federal criminal law provides for a plea of nolo contendere under the Federal Rules of Criminal Procedure rule 11.  These rules are promulgated by the United States Supreme Court pursuant to statutory authority under the Rules Enabling Act, which means it is akin to administrative law not common law.  Among the states, only a handful of states permit pleas of nolo contendere/no contest and do so exclusively by statute with significant restrictions.  As stated, it is a statutory privilege and not a right.  Nor does it find itself rooted in US common law.

One such state that permits a plea of no contest is Wisconsin under Wis. Stat. § 971.08, which requires that the court address the defendant personally to determine if the plea of guilty or no contest is made voluntarily with understanding of the nature of the charge and the potential punishment if convicted, among other things.

Hear me out on this next point.  I am of the mind that Talossan common law split from Wisconsin common law no later than the adoption of the 1997 Organic Law (I use this date because I have not seen any Organic Law antedating the 1997 Organic Law, and it does not change the analysis).  This make sense to me because the it is well-established in the US that it split with English common law in 1789 with the adoption of the (second) US Constitution.  What this means is that that the US inherited English common law as it existed in 1789, and any developments or changes in England thereafter were not binding in the US (although many developments were persuasive and each jurisdiction borrowed from the other). 

Following that line of thinking, nolo contendere had already vanished from English common law by 1789 and, therefore, was not inherited into US common law, as to not pass into Wisconsin common law, and therefore did not pass into Talossan common law.  For me, this tracks with the 1997 Organic Law's judicial directive to issue orders and injunctions relying upon "generally accepted principles on Anglo-American law." 

If this approach does not sit right with you for whatever reason, I was unable to identify a single instance of another common-law jurisdiction permitting a plea of nolo contendere based on the common law or that did not derive directly from modern US law as the US system of plea-bargaining spread to other jurisdictions. It is important to note that up until the 1970s, plea bargaining was a uniquely US-based phenomenon. Most of the jurisdictions that have adopted it base it on the US. 

In any event, Uganda and Kenya in the last few years introduced plea bargaining into their criminal justice systems and nolo contendere with it. The Judiciary of India expressed contempt for nolo contendere until adoption of plea bargaining in 2005.  This was all done by statute. 

Of the remaining common-law jurisdictions, I did not find any indication that nolo contendere is permitted.  In fact, the few references I saw from law blogs or articles from those jurisdictions were discussing the US judicial system.  Hence, I am confident when I saw that Canada, Australia, New Zealand, Pakistan, Burma, Nepal, Belize, Guyana, Tanzania, Malawi, Zambia, Hong Kong, Singapore, Malaysia, and Papua New Guiana do not permit a plea of nolo contendere. 

(For the sake of transparency, the Philippines, which has a mixed system of common law, civil law, and Islamic law, statutorily permits a plea of nolo contendere.  To the extent that I omitted a common-law jurisdiction, this is unintentional.  Because nolo contendere originated in 15th century English common law, I did not look into civil law jurisdictions as such did not seem particularly relevant to the analysis.)

The point that I am belaboring is that there is no common-law right to nolo contendere.  It is entirely statutory.  And because Talossan law does not provide for nolo contendere, is not available in Talossan corts. 

I think it would be a grievous error to set a precedent that Talossan corts can impose criminal liability based on a plea that does not exist in our law. 

The next thing I want to stress is that pleading nolo contendere is functionally similar pleading guilty in that the defendant accepts the conviction of the crime except that it means that the criminal case cannot be used against the defendant in a civil trial.  In essence, a guilty plea is an admission of the charges obviating any defense in a civil trial; nolo contendere means no guilt is admitted but the court will determine the punishment. 

I know there is good intent behind the plea bargain, but the idea that an attorney can enter a plea on behalf of their client that will impose criminal liability without the client's consent strikes as a dangerous proposition to set.  I would say that even if you disagree with me regarding Talossan law and nolo contendere, I hope you will see my point on entering a plea on a defendant's behalf that will result in criminal liability. 

I strongly urge you all to take a moment to consider what this means.  I understand why this may have seemed like a fair idea, but I encourage you to ponder whether proceeding in this fashion is good for our justice system. 

One last point, this is not an issue of double jeopardy.  Double jeopardy does not apply in instances of separate sovereigns (i.e. England and Talossa). 

If I have persuaded you, this is my proposal: the Public Defender moves to set aside the plea on the grounds of mistake of law (I see no reason why this could not be a joint motion with the Prosecutor).  If the General Cort grant the motion, the Public Defender must enter a plea of not guilty unless she obtains defendant's consent to enter a plea of guilty.  I know this means trial,

Because this correspondence means that I must recuse myself from all aspects of this matter with respect to the CpI, I am happy to help in any way that I can. 

Kind regards,

V

[Üc R. Tärfă]

I'd like to point out the specific nature of the crime in question: «been convicted by a credible foreign court, which has been deemed to abide by Talossan values, of a crime established at trial to have involved fraud, harassment, bribery, physical or sexual violence or threats thereof,».

It's clearly evident that the defendant has been convicted by a foreign court. That is not debatable. The question is if the the foreign court is credible, abide by Talossan value, and if the sentence involved one of those crimes listed. (Moreover, as far as we know, the defendant plead guilty in the foreign court).

The nolo contendere was, I believe, in the spirit of not contending the fact that the Swansea Crown Court is a credible foreign court, abides by Talossan value, and the sentence involved one of those crime. (I don't want to engage ont he existence of that or not because, as I already said, I'm not familiar with common law and this necessity to discover how common law works or worked in the US in the last 300 years disturbs me.) Are you suggesting that the defensor really needs to argue that the Swansea Crown Court is not credible, doesn't abide by Talossan value, that the sentence doesn't involve one of those crimes, or that the defendant wasn't sentenced at all by such Court? Why the Court can't accept the specific nature of this crime and accept a nolo contendere for this specific case? Thais won't be a stare decisis, and if the CpI will be asked by a part in this trial to review the sentence, it will be able - without you - to determine it.

The Hearing rules and procedures are not statutory law, but is a rule enacted by the CpI in 2006, and I must add that Judge Lorentz clearly said at that time that "these are the rule adopted for this specific case". Moreover according to the current wording of the OrgLaw, we can't know for sure if that rule was enacted by a full panel of 3 judges.

[Viteu]

I'd like to point out the specific nature of the crime in question: «been convicted by a credible foreign court, which has been deemed to abide by Talossan values, of a crime established at trial to have involved fraud, harassment, bribery, physical or sexual violence or threats thereof,».

It's clearly evident that the defendant has been convicted by a foreign court. That is not debatable. The question is if the the foreign court is credible, abide by Talossan value, and if the sentence involved one of those crimes listed. (Moreover, as far as we know, the defendant plead guilty in the foreign court).

I am not arguing against that. If the defendant does not show up for trial in Talossa for the charge of bringing Talossa into disrepute, all of that can be presented as evidence, if permissible, in a trial in absentia.  But we simply cannot flush civil liberties simply because we don't like what the defendant did.

The nolo contendere was, I believe, in the spirit of not contending the fact that the Swansea Crown Court is a credible foreign court, abides by Talossan value, and the sentence involved one of those crime. (I don't want to engage ont he existence of that or not because, as I already said, I'm not familiar with common law and this necessity to discover how common law works or worked in the US in the last 300 years disturbs me.) Are you suggesting that the defensor really needs to argue that the Swansea Crown Court is not credible, doesn't abide by Talossan value, that the sentence doesn't involve one of those crimes, or that the defendant wasn't sentenced at all by such Court? Why the Court can't accept the specific nature of this crime and accept a nolo contendere for this specific case? Thais won't be a stare decisis, and if the CpI will be asked by a part in this trial to review the sentence, it will be able - without you - to determine if - lacking a specific statute - this will be considered acceptable - or not - in relation to this specific crime as a stare decisis.

You're arguing the merits of what the defendant did; I'm pointing out that regardless of the merits, Talossan law does not provide for a plea of nolo contendere.  You may be uncomfortable looking at 300 years of Anglo-American common law, but the reality is that Anglo-American common law for over 300 years did not recognize a common-law right to nolo contendere.  But fine. The reality is that you're suggesting it's okay to plead guilty on behalf of a defendant who did not consent to that plea, and impose criminal liability on that defendant, simply because you do not like the nature of the crime?
Seriously?!? Are these your values? Are these to be Talossa's values? Because this should disturb you more than merely looking at history, and it shocks me to my core that I'm the only one bothered by this.

The reality is that this would not have gotten up to the CpI had I not raised concerns, and it still might not if the GC accepts the guilty plea, denies my motion, and there is no party in the case to appeal.  It might not set binding precedent without an appeal, but it sets persuasive authority that this is an appropriate way to handle future criminal matters. 

What I am suggesting is that the public defender represent her client and not work as an organ of the state to provide no actual defense. I'm saying that CCX is NOT GETTING A FAIR TRIAL. The fact that you and others are ostensibly okay with is just... wow.

I find this all morally reprehensible and disgusting.

To your last point about the rules, tven if the Hearing Rules and Procedure have authority, they still do not provide for a plea of nolo contendere.

[Üc R. Tärfă]

The reality is that you're suggesting it's okay to plead guilty on behalf of a defendant who did not consent to that plea, and impose criminal liability on that defendant, simply because you do not like the nature of the crime?
Seriously?!? Are these your values? Are these to be Talossa's values? Because this should disturb you more than merely looking at history, and it shocks me to my core that I'm the only one bothered by this.

The reality is that this would not have gotten up to the CpI had I not raised concerns, and it still might not if the GC accepts the guilty plea, denies my motion, and there is no party in the case to appeal.  It might not set binding precedent without an appeal, but it sets persuasive authority that this is an appropriate way to handle future criminal matters. 

What I am suggesting is that the public defender represent her client and not work as an organ of the state to provide no actual defense. I'm saying that CCX is NOT GETTING A FAIR TRIAL. The fact that you and others are ostensibly okay with is just... wow.

I find this all morally reprehensible and disgusting.

I'm just saying that this crime uniquely Talossan is peculiar, because the question is not if the defendant did or didn't do something, did or didn't act, did or didn't not commit it. I'm just saying that maybe given this particular nature it shouldn't be treated exactly like any other criminal trial and that maybe we should consider it. The defendant has been convicted. Was the conviction given by a credible court? Does the Court consider equitable a nolo contendere for this peculiar crime?

[Viteu]

The reality is that you're suggesting it's okay to plead guilty on behalf of a defendant who did not consent to that plea, and impose criminal liability on that defendant, simply because you do not like the nature of the crime?
Seriously?!? Are these your values? Are these to be Talossa's values? Because this should disturb you more than merely looking at history, and it shocks me to my core that I'm the only one bothered by this.

The reality is that this would not have gotten up to the CpI had I not raised concerns, and it still might not if the GC accepts the guilty plea, denies my motion, and there is no party in the case to appeal.  It might not set binding precedent without an appeal, but it sets persuasive authority that this is an appropriate way to handle future criminal matters. 

What I am suggesting is that the public defender represent her client and not work as an organ of the state to provide no actual defense. I'm saying that CCX is NOT GETTING A FAIR TRIAL. The fact that you and others are ostensibly okay with is just... wow.

I find this all morally reprehensible and disgusting.

I'm just saying that this crime uniquely Talossan is peculiar, because the question is not if the defendant did or didn't do something, did or didn't act, did or didn't not commit it. I'm just saying that maybe given this particular nature it shouldn't be treated exactly like any other criminal trial and that maybe we should consider it. The defendant has been convicted. Was the conviction given by a credible court?

It's not really that unique. We cannot set aside civil liberties and the right to a fair trial simply because we don't like the crime.

[Üc R. Tärfă]

Which crime we don't like?

[Viteu]

Don't be daft.

[Üc R. Tärfă]

Don't be daft.

I am not. The crime on which our legal system is called upon is:

7.2.10 Bringing Talossa into disrepute. Any Talossan citizen who has been convicted by a credible foreign court, which has been deemed to abide by Talossan values, of a crime established at trial to have involved fraud, harassment, bribery, physical or sexual violence or threats thereof, has committed the crime of bringing Talossa into disrepute to the following degrees:
7.2.10.1 A felony if sentenced to penal servitude of more than 2 years.
7.2.10.2 A serious misdemeanour otherwise.

[Üc R. Tärfă]

As I said before, the defender really needs to argue that the Swansea Crown Court is not credible, doesn't abide by Talossan value, that the sentence doesn't involve one of those crimes, or that the defendant wasn't sentenced at all by such Court? What sensible defense can be offered to the overwhelming evidences provided by the prosecution that the court was credible? The Crown and the Defender reached an agreement that modified the indictment instrument from 3 to 2 counts: I'd say the defendant has been defended to that extent. The defensor made sure the Crown has incontrovertible evidence on the record and not non existing count like in the first instrument. That is also the role of a defender for this particular crime, isn't it?

What other defense can be offered to that peculiar crime, apart from contesting the credibility of the Swansea Crown Court? It seems to me that, if the Defender can't take that route, all other possible actions are exhausted.

The "not guilty" is "not guilty of having been convicted by a credible foreign court". So the Defence should have to prove that either the defendant wasn't convicted at all, or that the Court wasn't credible, of that the conviction wasn't for one of those crimes. The last part was partly already achieved in the cut from 3 to 2 counts.

(By the way: Our statues doesn't say anything at all about pleas, so as far as I understand the Courts are able to fill the gaps or not? If the answer is not, why do we have a common law system at all?)

[Marcel Eðo Pairescu Tafial, UrGP]

The point of the defence attorney is to defend a defendant, no matter how cut-and-dry the case may seem. Giving the defence the power to plead guilty, either directly or indirectly (like nolo contendere), without asking the defendant about it first seems to go directly against this purpose.

Also I don't see much of a point to the nolo contendere plea anyway. If a defence attorney is not in contact with the defendant and has to make assumptions, the most reasonable assumption is that the defendant would not admit to anything. Am I misunderstanding anything?

[Viteu]

The point of the defence attorney is to defend a defendent, no matter how cut-and-dry the case may seem. Giving the defence the power to plead guilty, either directly or indirectly (like nolo contendere), without asking the defendent about it first seems to go directly against this purpose.

Also I don't see much of a point to the nolo contendere plea anyway. If a defence attorney is no contact with the defendent and has to make assumptions, the most reasonable assumption is that the defendent would not admit to anything. Am I misunderstanding anything?

Exactly right.

[Üc R. Tärfă]

Considering that the defendant plead guilty in the Swansea Crown Court, I'd say that it is a fair and reasonable assumption that the defendant would amdit to the Talossan crime of having been convicted by the Swansea Crown Court and that the sentence involved the crime he plead guilty to.