Lawyer talk podcast breaks down dozens of legal topics

>> Steve Palmer: It is that Time again. Lawyer Talk off the record, on the air, lawyertalkpodcast.com, if you want to check out the old episodes. And while you're doing that, if you are checking them out, you're going to see there's lots of categories of Lawyer Talk that have emerged over the years. One would be the q and a. Another is, uh, just sort of the interview series, I would call it. But what I haven't done in a while here is the breakdown, the legal breakdown, where I take sort of modern or maybe in the news, legal topics and try to break them down because I like to make things simple. Almost everything can be made simple. And I think there's too much of this nonsense of lawyers speaking legal talk or legalese. I speak both languages, and we're going to jump right into it.

Hunter Biden tried to plead no contest to tax fraud charges

So in the last couple of weeks, there's been lots of developments, politically and otherwise. But one of the things I saw, and I'm going to avoid the political connotations of all this, but Hunter Biden, uh, got himself, found himself sort of jammed up in all sorts of tax fraud type indictments, fair to return or fair to report income, whatever it would be. Um, and that's not the news. I mean, that's its own news, but that's not the breakdown I'm going to do. What I think is interesting about this, and I've got lots of questions about it, sort of in my professional life, is that Hunter Biden, at the, at the final hours, tried to cut, uh, a deal. And his lawyers went to the prosecutor with a couple of different options. One of them, uh, involved Alford. And you would ask, who in the world is Alford? It's not Batman's butler. It's not, uh, uh, some mystical being. Alford is North Carolina versus Alfred. It's a US supreme court case that came 19, uh, 70, as it turns out. Uh, the US supreme court, uh, heard north, uh, Carolina versus Alfred. And what Hunter's lawyers were trying to do was plead, uh, Hunter guilty, but then at the same time say that he's not really guilty, he's just pleading guilty because the consequences of losing at trial and the risks of trial are so great that he just wants to get it over with. So he's not really accepting guilt. There's a few problems with this that emerge, and this is where these breakdowns sort of, uh, have tentacles out into all sorts of things. Because when the Alfred plea failed, or maybe, uh, it's the other way around, but the other type of plea that they were talking about is a no contest plea, or nolo contendere, as the Latins would say, and no contest. Uh, we'll start there. No contest basically means I am pleading no contest, which means I admit all the underlying facts, everything that's charged, everything that the prosecutor said, I admit it. But I'm not going to take that final leap and just say I'm guilty. Then the judge has to find you guilty. So when people ask me all the Time, you know, can I just plead no contest? Well, you can. And then there's that awkward silence, and I say, well, it's not going to change anything. And they're like, well, why not? Because a no contest plea results in the same thing. Whether you're going to force the judge to take the extra step of finding you guilty or whether you're going to just say you're guilty, it doesn't matter. There is an exception in Ohio and I think a lot of states where if you plead no contest later on, that plea itself, guilty plea itself, if you pled guilty, it can be used against you in a civil case. So say you're in a car crash and you got a traffic ticket, you go in and plead guilty. Uh, or maybe even worse, you just sort of sign the waiver and send in the, the, uh, fine. You're found guilty immediately because you said you were guilty. That's an admission of guilt. If you later get sued for a million dollars and you want to say, hey, wait a minute, I didn't really rear end this guy. It was the opposite. Um, or I didn't. I, uh, had the red light, or I had the green light. He had the red light. Too late. You've already admitted guilt. That's the same or tantamount as the fancy lawyers would say. That is the same as simply saying, uh, uh, I did it, I am liable for the damages. Uh, so if you plead guilty in a traffic case, it means something. Or in a case where there's later civil, civil litigation, it means something. If you would have pled no contest to it, then they can't just say they can't use that plea to establish liability in a civil case. So in a criminal case or in the traffic case, the result's gonna be the same, you're gonna be found guilty. Um, but in the civil case, you can still sort of leave open the ability to defend whether you actually are liable, whether you actually did it, whether you actually ran the red light or the other guy ran the red light. So I think whether first or second, hunter Biden tried to enter a no contest plea. Um, now the question underlying all this is sort of why would somebody want to enter a no contest plea? Or even an Alford plea, which I'll get to in a second, uh, because it feels better, uh, and maybe it sounds better. Maybe their gut tells them, wow, this isn't so bad. I mean, I can at least explain this in some way, shape or form, but the results, the same. The other problem with it is, particularly with the no contest plea, was that the prosecutors hate it if they offer you any sort of deal. If the State or the government, the federal government is offering you a deal and you plead no contest. And by deal, I mean something other than what the indictment says. Um, and I should say you can always plead no contest, uh, to the indictment because that there is no deal. You're just saying no contest. But if you want a deal, if you want them to dismiss a couple of the charges, or if you want them to recommend a certain sentence and you're asking for the government's consideration, uh, they, uh, are not going to like a no contest plea. Most of the Time, you have to bake that into the cake when you're negotiating it. Um, um. Why? Because they like people to take responsibility. Maybe it's, um, um. You know, maybe it's just an ego contest with the prosecutors, uh, uh, generally speaking. Also, courts don't like it either, except in maybe a traffic case, when they know what you're doing. So the prosecutors or the us attorneys in the hunter Biden case didn't like the defense attorney's suggestion that their client plead no contest. So then they went to Alford.

Bill Clinton: Alfred plea was used in civil rights cases back in 1963

So back to Alfred. I went all the way around the horn and. Or all the way around the world. Now we're back. Um. Um, North Carolina versus Alfred. I think it was a case back in the civil rights days, 1963. There was a black guy, uh, uh, who had hooked up with a white woman in a, what did they call it? A party house. They were staying at the. I guess that would be like a hotel that had hourly rates. I'm not sure. At any rate, the owner of the hotel was all. Or the owner of the party house, I guess, was also a black man. But there was some fight about, uh, who owed who money or something along those lines. Uh, and the defendant, Alford, was later accused of shooting the owner with a shotgun. Uh, he hires a lawyer who had about six years experience, I think, who did some investigation. There were witnesses, there were statements that, uh, Alford made before and after, uh, suggesting that he did it. Yet, at the Time of the trial, Alfred said, I didn't do this. I didn't do it. Alfred was indicted on murder. Uh, he was charged with a death penalty type case. So there's a huge incentive not to go to trial, right? If you go to trial and lose, you die. So Alford basically says, look, under duress, I'm going to plead guilty. I didn't do this. But the consequences, the risks of this are so great that, uh, I'm just going to plead guilty under duress. Well, this was a sort of a watershed thing at the Time, because a lot of courts around the country were saying, no, if you're pleading guilty, you have to, there better be facts that you have, there better be credible evidence that you are guilty and you're going to be found guilty. So the question this sort of cuts both ways. In modern times, people do this all the Time. I have clients who plead guilty under Alfred because it feels better. I have to negotiate it in, uh, with the prosecutor. But it feels better to say, look, I'm just avoiding the risks of trial. I know they've accused me of this horrible act, this horrible sex offense, this horrible murder, this horrible whatever, but I really didn't do it. And if I lose at trial, I go to prison for life. If I take this deal, it's probation. All right, fine. Um, but the other, the inverse is also true. And this is how it came up. Later, Alford tried to say, look, this guilty plea is invalid. I only pled guilty because it was under duress. If I didn't plead guilty, uh, they were going to give me the death penalty. My lawyer was telling me I had to, and I did it under protest. So it sort of came up in the reverse way. Results, the same goes up, I think, to the fourth district court of appeals, in federal court. And they said, no, you can't do this. This was under duress. We're going to send it back. The US supreme court later says in North Carolina versus Alford, no, the plea's fine. Uh, we're going to reverse and you can enter a guilty plea under these circumstances. Um, it didn't violate his constitutional right, uh, to enter a guilty plea at the same Time saying, I didn't do it. So that's the Alford decision. And since that Time, like I said, it's sort of been used both ways, I think, uh, or it's not even used both ways now. It's used the other way where people want to enter an Alfred plea because it feels better. Not that they are saying they're forced and the plea is no good, and they later want to withdraw it. Um, now, practical experience in my practice, uh, Alfred pleas are rare birds. I mean, uh, for all the reasons I've talked about, prosecutors don't like Alfred plees. Um, judges typically don't like Alfred pleas. And in fact, in some courts, one that I been at this week, uh, in central Ohio, you actually have to stand up as a defendant. If you're pleading guilty, raise your right hand, swear to tell the truth, look the judge right in the eye and say, here's what I did to commit this crime on such and such a date, at such and such a Time, in such and such a county. I did the following, and then you have to say it. It doesn't have to be eloquent. You don't have to sound like Bill Clinton, uh, but you do have to say what you did. Um, every now and then, though, you have courts like that, that just won't take Alfred pleas. They just won't do it. Which is sort of.

Steve Palmer: Judges have ultimate authority to accept or reject guilty pleas

Which is the next question that is worthy of this breakdown. Judges have ultimate authority and discretion to either accept or not accept guilty pleas. And in the courtroom we're talking about, I've had this judge basically say, look, I don't think there's enough here. This guy, I'm not going to take this guilty plea. Uh, he didn't say enough. He's protesting his innocence. At the same time he's trying to plead guilty. I'm not going to do it. That's basically Alford. And the judge is saying no. And sometimes that's okay. Sometimes that's not okay. You know, I've had. I've had pleas blow up where I end up in a jury trial because my client wants to plead guilty just to get it over with. Wants to plead guilty to, um, avoid losing a trial and having to go to prison when it's likely to be probation otherwise, and the judge won't do it. So there's a lot of nuance to this that, uh, flies around in the real world. And sometimes, uh, I always ask, what do you think? The most common question I get, and I get various answers to that as a criminal defense lawyer. But one is, why do people plead guilty to crimes that they didn't commit? And then sort of the reverse of that is I hear people at cocktail parties, I would never plead guilty. Something I didn't do. Not so fast, cowboy. Because every now and then, people get accused and they're flat out, totally, 100% innocent. But if they lose the trial, they go to prison for life. Um, and if you think it can't happen to you, call me up. I will give you a bunch of John does and Jane Rose or whoever they are and give you examples when that very thing has happened. So I hope that breaks this down. I, like I said, I avoided the Hunter Biden politics. I don't care about that. But it's interesting from a criminal defense legal procedure standpoint. This is Steve Palmer coming at you with Lawyer Talk, where you can check us out@lawyertalkpodcast.com. dot I encourage you to like, I encourage you to share. Guess what? We have social Media. I hate to say it, but we got tick tock. We got YouTube, we got, uh, LinkedIn. I got whatever it is, whatever my people are creating. I am here to give you the content week in and week out, Lawyer Talk,,,, Off The Record, on the air, at least until now with this breakdown.