Monday, January 18, 2010

Withdrawing Guilty Plea: Not So Easy

In the last couple of months I have been called from several persons wanting to withdraw a recent plea of guilty. In Illinois, a motion to vacate a guilty plea must be filed within 30 days after the plea is entered.

Procedurally, a motion is filed and the case is put back on the trial court's calendar. The file has to be pulled by the clerk and sent back to the courtroom. But it's not automatic the judge will allow the plea to be withdrawn. A compelling reason for the withdrawal must be set forth in the motion. Changing one's mind is not proper grounds for withdrawing a guilty plea. With this in mind...

The story was the same for all. After sitting in the county jail for several months, a sentence of probation was offered in exchange for a plea of guilty. They all took it. It was the way home.

I was told the public defender did not explain the right to trial in a meaningful way and pushed the plea. During a plea hearing the judge advises the defendant of the right to trial. And here in Cook county, a jury waiver has to be signed before all guilty pleas are accepted in any case. I understand clearly what a judge says to someone entering a plea of guilty. But I am a lawyer and hear the speech frequently.

Sadly I don't think most people really know what's happening at a plea hearing entirely. I always tell my clients the same thing the judge does and ask if there are any questions. But to the unsophisticated, the process has to be intimidating. Most new defendants are scared of judges.

However, none of them thought about the ramifications of being a convicted felon. Once the realization set in, they wanted to talk to a lawyer. This is where I entered the picture.

Because they were all told at their plea hearing, the 30 day filing requirement was understood. I guess they got that part. But I had unpleasant news for them all. Here are the nuts and bolts of what I had to explain:

If the judge grants the motion to vacate the guilty plea several things happen: 1. All of the charges are reinstated, 2. The case is set for trial, and 3. Bond is reset.

Numbers 1 and 2 were not a problem. Number 3 was not expected. If the charges are reinstated bond has to be reset. You would expect the bond to be about where it was initially. Side note: bond is initially set by the sitting bond judge at bond court. This normally takes place the day after a felony arrest. The conditions of bond can always be reviewed later at the request of the defendant.

What this means is that once the guilty plea is withdrawn, the State is going to reset bond which usually means the defendant goes back to jail...where they were. If they were not able to make bail the first time, it's unlikely they will a second time. And once I make this clear, withdrawing their guilty plea sounds like a bad idea. In fact, not one pursued withdrawing their plea when I told them being locked back up was likely going to happen or was at least a possibility.

Keeping with the spirit of my recent ranting...

It is in my opinion the enormously high bonds here in Cook county yield more guilty pleas either directly or indirectly. If there is a force pushing innocent people to plead guilty than the system is broken.

I compare Cook county bond court with that in Kane county.

In Kane county the judge asks the defendant how much money the family could come up with and then sets bond at that amount. Amazing. I hear the federal system is like that as well. In other words, bond is not supposed to be set beyond the reasonable reach of the defendant.

Really heinous crimes are going to have high bonds in any county. The risk of flight is too great. But requiring $5,000 on a small drug case is a bit excessive. Money can buy justice. I am not implying the guilty can go free with enough cash (it worked for O.J. Simpson however). But if more people could bond out of jail and hire a lawyer, I predict the quick guilty plea would be rarer. Bonds and lawyers are not cheap and there is the rub.

It is very frustrating as an attorney to have a case that has a fighting chance, but a client that wants to go home and is willing to cop-out to get there. I understand though. I don't have to sit in the county jail while I am waiting on discovery and subpoenas. The time is always easier to do when it's someone else doing the time. To me one day consists of 24 hours but in jail I am sure a day is much, much longer.

I don't think our local system could withstand massive amounts of litigation. If every defendant or even a fraction of them that are currently in custody demanded trial, it would be ugly. The Assistant State's Attorneys can be difficult when they realize there will be no guilty plea early on. I think most of them are starting to realize any thorough attorney will file a suppression motion when possible. But appear like you're really headed to a jury trial and all of a sudden you're a maverick.

"This is Ghost Rider requesting a fly-by."

"Negative Ghost Rider, the pattern is full."

Maverick. Heh.



  1. Hi Marcus,

    I don't know if you read these comments but I stumbled across your blog on Withdrawing Guilty Pleas- funny and informative to me. I am a newly licensed lawyer in the Belleville, Madison County area. I might be calling you for your expertise one day, soon probably! : - )

  2. I do read the few comments left around here. Thanks for taking the time to write. I would not consider myself an expert at anything, but you're free to call anytime.

  3. Dear Sir,
    very nicely put :) So thee is no way of vacating the guilty plea let's say after 10 years?
    It just seems that 30 days is just a very short period of time, where a "convicted" person can really come to terms with everything that is involved...

  4. I really appreciated your blog. I have a client who wants to withdraw a plea of guilty on a charge of misdemeanor domestic battery. Since I never had a client withdraw a plea, I did some research and stumble upon your blog. I had not realized that bond would be reset along with starting the case from the beginning. I have just informed the client and make sure that is what they want to do.


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