October 12, 2007

Manifestly as a term of art

Two esteemed law professors have written to enlighten me about my recent post discussing the use of "manifestly" by the lawyer for Senator Larry Craig (Billy Martin) and the judge who refused to withdraw Craig's plea of guilty in that now famous incident at the men's room of the  Minneapolis airport. I suspect I'll be hearing still more from the law profession and my headache will get even worse.

A friend, Professor Janet Ainsworth, writes:

The reason both lawyers were using the term, "manifest injustice," is that it is indeed the legal term of art appropriate to the resolution of the motion to withdraw the guilty plea. If someone enters a guilty plea but seeks to withdraw it before sentencing, the appropriate legal standard needed to justify the withdrawal is "good cause," which can be satisfied if the plea bargain was not lived up to by the prosecutor or if the defendant overlooked a valid defense to the charge that his lawyer couldn't have reasonably discovered at the time of the plea entry, newly discovered evidence casting doubt on the guilt of the defendant, for example.

After sentencing, however, the burden on the defendant to justify a plea withdrawal is higher than before sentencing. That higher standard is described as the necessity to show that it would be a "manifest injustice" to fail to allow him to withdraw the plea. Now it isn't good enough to merely show an overlooked defense; you have to show that the plea was constitutionally defective in some way, the product of coercion, or without appropriate recitation of the rights being waived by entering the plea. I suppose the reason for the higher standard post-sentencing is that we think that mere "buyer's remorse" is more likely an explanation of a change of heart after sentencing than before and that finality in judgment is a more significant factor once the entire matter is disposed of than earlier in the process.

I appreciate that weasel words are often used in the course of legal argument, but this isn't an example of one of them. Terms like "manifest injustice," "good cause," and "plain error," etc. are labels used to articulate and distinguish the particular burden needed to sustain a party's motion. In that sense, they are no more objectionable than any other term of art used by experts in a domain, like "set" used by mathematicians or "command" used by syntactitians.

So here I learn that "manifest injustice" is an acceptable and necessary term of art in law used by both the defense and the judge, and that mathematicians and linguists use terms of art too. I think I understand this. But another law professor, Jonathan Weinberg, read my post an wrote:

For what it's worth, Martin and the judge were using "manifestly" in different senses. The judge was applying a legal rule under which a defendant can recant his plea only in situations where requiring the defendant to stick to his plea would probably lead to injustice, but things aren't really clear and there's room for argument either way. Then the defendant is stuck with the plea. That's because the importance of finality in criminal adjudication trumps any (arguable, unclear) injustice. "Manifest" has important content here.

Martin, on the other hand, is just using the word in a Garner-ian sense, as an all-purpose "maybe if I throw this word in a sentence, it will sound more convincing" as an intensifier.

Okay. If I read these responses accurately (I'm sure they'll tell me if I haven't), we seem to have two somewhat different views of the use of this term of art. Professor Ainsworth says both the judge and Craig's lawyer were using it more or less properly. Professor Weinberg votes for the judge's proper use but is a bit skeptical about Martin's.

My headache isn't getting a whole lot better.

Posted by Roger Shuy at October 12, 2007 06:24 PM