Withdrawing guilty pleas: instrument for justice or shopping for sentences?

SPECIAL REPORT (MyFoxBoston.com) -- Accused criminals agree to plead guilty, but then change their minds after they find out their punishment. It is a game of chance for defendants who then go on trial instead, but for crime victims and their families the ordeal can be excruciating.

This scenario came to light recently when the driver in a Jamaica Plain crash went to court to plead guilty to negligent operation of a motor vehicle.

Nikolas Papadopoulos withdrew his guilty plea last November after learning the judge would sentence him to a year in jail.

The 2013 crash paralyzed a teenager and left father-of-three Kevin Cellucci unable to walk, talk or eat on his own.

Lawyers for Papadopoulos and the Cellucci family declined to talk about the case itself, but both offered insight into the legal maneuver that allows defendants to withdraw their guilty pleas and go on trial instead if the judge's proposed sentence exceeds what the defendant has offered to serve.

"It's difficult for victims,” said Cellucci family attorney Shawn O'Rourke. “It would be helpful to the victims who have to go through this process that in the district court cases where they come up and you have serious injuries or even a death, that they only proceed if the defendant agrees in advance to accept the judge's sentence."

But Papadopoulos' defense attorney, John Amabile, defended a client's right to withdraw a plea.

"I think it is a fair process and a process which does result in resolution in most cases by admission by the defendant," said Amabile.

The Mass. Trial Court does not track how often defendants withdraw guilty pleas.

“I'd say it's uncommon,” said defense attorney David Losier, a former prosecutor. “Oftentimes you see victims and victims' families upset or disappointed by that result, but oftentimes not surprised because they've been informed of that by the prosecutor.”

The same scenario played out when the man speeding behind the wheel in a deadly crash in 1997 went to court. Justin Barnard initially agreed to plead guilty to charges related to the crash that killed Marion Emslie's daughter, Talia. But after finding out the judge would sentence him to a year in jail, he withdrew the plea and went on trial instead.

It was a gamble that paid off for Barnard. He was later sentenced to five months in jail to be served on the weekends.

"It was shocking to find out that he could test out the waters, find out the punishment and then withdraw it because he did not like what the punishment would be," said Emslie who did not know that was even a possibility.

Emslie contacted FOX Undercover after hearing about Papadopoulos doing the same thing. "The law needs to be changed.  It's not appropriate," she said.

Attorney John LaChance represented Barnard. “A defendant should not have to risk jail,” said LaChance. “And if it's a close question of whether it's jail or not jail, letting the defendant withdraw and then go to trial gives the defendant an option.”

A rule change in effect this month is supposed to promote more transparency in plea negotiations.

It allows judges to actively participate in negotiations with both sides as long as the conversations are on the record.

Papadopoulos is set to go on trial later this year.

Cox Media Group