Reneging on a Guilty Plea, Citing ADD

It all started at around the time of the terrorist attacks in New York City. He was a prominent dentist. She was an attractive blonde woman. Sitting the dentist’s chair in Dr. Jeffrey R. Burkes’ office in midtown Manhattan, Shari Perl Herman was getting her wisdom teeth removed by Dr. Burkes.

It was supposed to end in 2007, with Dr. Burkes pleading guilty to the criminal sale of a prescription for a controlled substance in Manhattan Criminal Court one day before the trial was scheduled to begin. The judge handed down a sentence of probation and community service.

Dr. Burkes wants to take it all back now: his good reputation, his apology and more importantly his guilty plea. Citing his attention deficit disorder, he is seeking to have his guilty plea thrown out on appeal.

The Attacks and the Affair

Despite his practice on East 56th Street, Dr. Burkes is better known as a consultant for the City; he was often called upon to identify corpses based on their dental records. In fact, Dr. Burkes and his team identified over 600 bodies after September 11, 2001. Then mayor, Rudy Giuliani, thanked Dr. Burkes personally for his tireless service.

It was around the same time that Dr. Burkes first met Herman. Working long hours and under insurmountable stress after September 11, 2001, Dr. Burkes took up Herman on her offer to have him sleep in her apartment, as opposed to his cot in the office. At the time, Herman was separated from her husband, but not divorced.

In an interview with the New York Times, the dentist admits that, “With the stress and everything, I was stupid.” He claims that the affair only lasted three months, after which they continued to be friends – and continued their doctor-patient relationship. Dr. Burkes wrote prescriptions for her, owing to the fact that she had a painful jaw condition. He insists that she was not addicted.

Five or so years later, Dr. Burkes was charged with writing prescriptions for painkillers to Herman, with whom he had had an affair. Some of the prescriptions for everything from Percocet to Vicodin were in other peoples’ names, including that of her sister. It was her sister who first notified the authorities.

A Plea of Guilty?

On the eve of his trial, Dr. Burkes entered a guilty plea to the criminal sale of a prescription for a controlled substance. He also issued an apology: “I am very, very sorry for what I have done… It was wrong, and it will never happen again.”

Last week, Dr. Burkes withdrew his guilty plea. “I want to clear my name,” he stated simply. Dr. Burkes is now asserting his innocence and appealing to have his sentence thrown out. So far, he has not been successful. His filed motions have so far been denied.

In his appeal, Dr. Burkes argues that he had received bad advice from his former lawyer. “I felt dominated by his will and I succumbed to, and accepted, his advice even though I felt otherwise,” he wrote in a court filing.

Perhaps most interesting is that Dr. Burkes blames his attention deficit disorder (ADD) for obstructing his decision-making process, especially under stressful circumstances. He and his wife had reconciled at around the time of the trial; the trial would have brought out unsavory and lurid details of his affair with Herman. The dentist submits a letter from his psychiatrist, who notes that his patient’s ADD “interferes with his ability to organize and categorize information prior to thinking about it.” It further notes that Dr. Burkes was in a state of “confusion, perplexity and overwhelming fear” on the day he entered his plea of guilty.

A Brief Overview of US Criminal Procedure

In most jurisdictions in the United States, ninety percent of felons arraigned plead guilty or nolo contendere (no contest). A defendant who enters into a plea bargain waives three important constitutional rights:  the Fifth Amendment right against self-incrimination; the Sixth Amendment right to a criminal trial; and the Six Amendment right of a defendant to confront the witnesses against him or her.

That is why the rules of criminal procedure in the US – as in Canada – put up safeguards to ensure fairness for both the prosecution and the defense. In fact, plea bargains are intended for the “mutuality of advantage.” In Santobello v. New York, the US Supreme Court held that plea bargaining is “essential to the administration of justice” and “[p]roperly administered, it is to be encouraged” (Santobello v. New York, 404 US 257, 260 [1970]).

In the leading case of Brady v. United States, the US Supreme Court stipulated that “[w]aivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences” (Brady v. United States, 397 US 742, 748 [1970]). It goes so far as to state that the judge must accept a guilty plea only with an affirmative statement by a defendant, indicating that he/she has met the constitutional standard for waiver (Boykin v. Alabama, 395 US 238, 242 [1969]).

For example, the judge must explain the charges to which the defendant is pleading guilty and the possible criminal sentence. The judge is also required to explicate how the facts of defendant’s case fit the criminal charge to which the defendant is pleading guilty, so as to ensure that the defendant does not plead guilty to a charge that does not fit the facts of the case. As we all recall from our first year criminal law class, it is also important that the pleas are entered and negotiated voluntarily; in the words of section 11(b)(2) of the Federal Rules of Criminal Procedure, the plea must be “voluntary and not the result of force or threat or promises apart from a plea agreement.”

A Change of Heart

The Federal Rules of Criminal Procedure sets a low threshold for a defendant who wishes to withdraw a plea of guilty or nolo contendere after the court has accepted the plea but before it imposes sentence. The defendant must show that there is “just reason” for requesting the withdrawal (s. 11(d)). At any point before the sentencing, the criminal process is generally forgiving of changes of heart.

According to s. 11(e) of the same federal statute, the threshold is much higher once the sentence has already been handed down. The plea may be set aside only on direct appeal or collateral attack. At that time, the defendant is required to point out a “manifest injustice” that requires correction in order to be granted the withdrawal of the plea.

Attention Deficit Disorder, a “Manifest Injustice?”

One reason that this case is making headlines is that a successful appeal would shed new light on what constitutes a “manifest injustice.” It would not come as a surprise if the court were particularly sensitive to the context of the case – namely, the defendant’s emotional susceptibility around the time of September 11, 2001. Dr. Burkes was not arraigned until 2006, however. Thus, it is unlikely that the court will accept his argument that he was under “pressure” on the day of his trial and that it was this stress that prompted him to enter his plea. In one case from Ohio, the judge stated rather tartly, “When one’s freedom is at risk, one should not have a happy-go-lucky attitude” (Ohio v. Wangul, 322010 Ohio [2004]).

To make the case for his mental condition, Dr. Burkes and his legal team would likely turn to case law, such as Brady v. United States. In that case, it was held that, in addition to voluntariness, the defendant’s plea must be “knowing” and “intelligent,” “done with sufficient awareness of the relevant circumstances and likely consequences.” The affidavit from the psychiatrist seems to suggest that Dr. Burkes’ ADD prevented him from making “knowing” and “intelligent” decisions, as his mental condition “interfere[d] with his ability to organize and categorize information prior to thinking about it.”

It may well be that his ADD impaired his decision-making process and made his arraignment even more psychologically taxing. The prosecution, on the other hand, argues that the plea did not arise from a one-time meeting, but was rather “the result of lengthy negotiations and was not the product of duress.”

One way that Dr. Burkes could overcome this challenge is by proving that his ADD constitutes a day-to-day struggle. He would have to underline the persistence and severity of this disorder. This does not seem like a fruitful position to take, though. Dr. Burkes must be of above-average intelligence, including emotional intelligence, to do what is expected of him as a dental surgeon. His job places him in stressful situations all the time. If he was able to perform his demanding job after September 11, including the identification of over 600 corpses, the court is not likely to accept that his mental condition interfered so strongly with his plea-bargaining.