Jared Remy: They're locking him up for life, but will they throw away the key, too?

Given my experience and expertise as both a former state assistant district attorney who prosecuted numerous murder cases, and as a long-time Boston criminal defense attorney who currently defends them, as well, I have been asked more than once if there is any way Jared Remy can one day get out of jail, so to speak, after the unusual turn of events today in which he voluntarily pled guilty to a Murder 1 charge that carried with it automatic imposition of a mandatory life sentence without any possibility of parole, as well as a waiver of his right to both an automatic appeal before the Supreme Judicial Court, and any direct appeal at all. As with many things, the answer is complicated.

On its face, the statute codifying the penalty for first degree murder (Mass. Gen. Laws ch. 265 § 2) mandates life in prison without possibility of parole after a guilty conviction on that charge, whether by trial or plea. But even the statute itself provides an exception (although rarely used, and highly unlikely to be applied here) - commutation of sentence by the governor - which could make someone like Remy eligible for parole, someday. That won't happen here, but more pertinently, it's not the only way in which Remy could challenge his sentence. In fact, there are a number of collateral challenges that can be brought in these circumstances.

Typically, the first way in which a defendant like Remy might challenge his sentence would be to allege that the Court itself erred by accepting a plea that was neither knowing nor voluntary. It's possible Remy could claim that the medications he is taking to treat depression and paranoia prevented him from understanding the implications of his guilty plea, and that he did not fully know and/or understand what he was doing by pleading guilty. There are, however, numerous procedural safeguards in place to prevent these types of claims. Prior to changing his plea at a formal hearing at which everything that is said is meticulously transcribed, the defendant must listen to the prosecution read the facts of its case and the charges against him in open court. The judge explains, on the record, what a guilty plea entails, and inquires of the defendant, himself, whether or not he understands the consequences of his plea, and is aware of all the rights he is giving up by pleading guilty, and also if he in fact agrees to plead guilty to the charges, and all the underlying facts as outlined by the prosecution "because [he is] guilty." Moreover, and as was the case here before Judge Tuttman, the Court inquires specifically about whether or not a defendant is pleading guilty freely, knowingly, and voluntarily, and if he has taken any drugs (prescription or otherwise) that could possibly impair his judgment and/or prevent him from understanding what was being said and making a knowing and informed decision. There is little doubt that the thorough, nearly 45 minute allocution Judge Tuttman conducted this morning prior to accepting Remy's guilty plea was precisely crafted and designed to preclude any such challenge(s) in the future or that it won’t ultimately withstand any subsequent effort(s) to undermine them.

Another common course for defendants on appeal is to challenge the adequacy of their legal representation by claiming ineffective assistance of counsel. All lawyers are held to certain standards in connection with their representation of their clients. When a lawyer's conduct falls below that of an ordinary, fallible lawyer in connection with a criminal case, the defendant has the right to bring such a claim before the appeals court and attempt to prove 1) that his or her representation was legally insufficient, and 2) that it had a material effect upon his or her case. Remy's decision to plead guilty to first degree murder charges is unusual - every defendant is entitled to his day in court, no matter how damning the evidence, and taking a Murder 1 case to trial when no plea agreement is offered is the far more usual choice - there is nothing to lose because a defendant facing an automatic life sentence has everything to gain in terms of a possible conviction on a lesser included offense, i.e., Murder 2, Manslaughter, or even possibly an acquittal. So, the logic goes that pleading guilty to Murder 1 could signal an utterly aberrant and likely ineffective tactical decision by Remy's attorney, especially with related facts that suggested the possibility of presenting affirmative defenses in his case such as lack of criminal responsibility, or relying on diminished capacity as a result of alcohol, drug and/or steroid abuse to try to reduce liability from Murder 1 to Murder 2.

But, the reality here is the decision to plead guilty appears to have been a deliberate, intentional, and conscious decision by Remy to spare his daughter, the Martel family, and his own famous father's broadcasting career from fallout from, and anguish of, all the ugly details of the crime that would have come out during his trial, which were sure to be focused on and repeated ad nauseam.

The last, and perhaps most cognizable, resort of incarcerated defendants is to apply for a Writ of Habeas Corpus, which was inherited from English Common Law and included in the U.S. Constitution in Article I § 9. A habeas petition basically provides a convicted defendant with one last chance to challenge his conviction, or at least his sentence. It is a parallel civil remedy in which a court inquires as to the legitimacy of a prisoner’s custody. Typically, federal habeas corpus proceedings determine whether the state court which imposed sentence on the defendant had jurisdiction and authority to do so. In other words, a federal judge would revisit, among other things, the issues discussed above to see if the state courts had both the jurisdiction to sentence the defendant, and had done so in a manner that afforded the defendant all his necessary, Constitutionally guaranteed, rights and protections.

I wouldn't expect Jared Remy to be successful were he to challenge the knowing and voluntary basis of his change of plea, nor do I expect to see a valid/viable claim of ineffective assistance of counsel given that Judge Tuttman also took extra care to inquire as to whether or not he was satisfied with his attorney's representation and the related advice his attorney had been giving him throughout the course of his representation, and at the time of his guilty plea. However, as with any inmate facing the possibility of upwards of perhaps another 50 years in prison (based on actuarial tables) without any possibility of parole, I also do not expect him to spend the rest of his life in jail without bringing some sort of challenge at some point – likely under a Writ of Habeas Corpus.

So, to answer the question posed at the outset - Jared Remy isn't going anywhere except for "MCI Cedar Junction" anytime soon, and presumably for the rest of his natural life. But just because they've locked him up today, it won't necessarily mean they will be throwing away the key tomorrow…or for a while, anyways.