A federal judge on Tuesday ruled a man convicted in a murder-for-hire plot did not get effective advice from his attorney about a plea offer and said prosecutors must now reoffer the deal.
U.S. District Court Judge Clark Waddoups said defense attorney Lawrence Leigh failed to review the possible sentence when discussing a plea offer with Kelly J. Polatis and, in fact, never calculated the sentence the St. George resident faced if convicted of multiple charges in the murder plot until months after the trial ended.
During a hearing in December, "Mr. Leigh regretfully testified that 'this is a puzzle to me even to this day as to why I didn't do it, but I didn't do it,' " Waddoups said in his decision. "It was not until after trial and after Mr. Leigh had worked through post-trial motions that [the] defendant learned from Mr. Leigh that he was facing a prison term of his natural life under the applicable sentencing guidelines."
That violated Polatis' Sixth amendment rights, Waddoups said, noting that the possible sentence was "twice what [Polatis] faced under the plea offer."
If Polatis now accepts the plea offer, his convictions will be vacated and he will receive a new sentencing hearing, Waddoups said.
Melodie Rydalch, spokeswoman for the U.S. Attorney's Office, said the office was still reviewing the order and had no comment.
According to court documents and trial evidence, Polatis tried to hire a hit man to kill five people slated to testify against him in a federal drug case in Coeur d'Alene, Idaho. Polatis was acquitted on drug charges in April 2010, but was charged with orchestrating the murder-for-hire plot that same day.
Polatis traveled to Las Vegas in 2009 to meet with a hit man who was actually an undercover agent. During the meeting at the MGM Grand Casino, Polatis and the agent discussed how the hits could be carried out and offered the "hit man" $30,000 to get the job done.
At his trial, Polatis testified he was entrapped and was merely "playing along" with the agent, whom he feared might harm him up if he didn't pay for the hits. He also said he was drunk every time he spoke to the agent.
In July 2011, a federal jury deliberated for two days before finding Polatis guilty of 14 of 17 counts in the murder plot; one count was later dismissed. Waddoups postponed sentencing after Polatis filed motions to reinstate the plea agreement.
Prior to trial, Lawrence Leigh, Polatis' court-appointed attorney, contacted the lead prosecutor on the case about a possible plea deal. U.S. Assistant Attorney Veda Travis replied that if Polatis pleaded guilty to one count of murder-for-hire, prosecutors would make a plea offer of 12 1/2 to 15 1/2 years, a substantial reduction from the potential sentencing guideline range of 27 to nearly 34 years. Travis said the offer would not be final until approved by a screening committee in the U.S. Attorney's Office.
That same day, Leigh said he sent a letter to his client outlining the offer, but Polatis said he never received it.
A day later, Travis sent Leigh an email explaining that she had made a mistake and that Polatis would need to plead guilty to two murder-for-hire counts. She did not include the disclaimer that the deal still needed approval.
During discussions with his client, Leigh did not advise against accepting the offer, but told Polatis the case was triable. During the December hearing, Leigh told the judge he did not discuss the possible sentence because he assumed Polatis had received his letter along with the prosecutor's email and understood the range called for in sentencing guidelines.
Waddoups said in his ruling that while Leigh promptly forwarded prosecutors' offer to his client, he should have discussed it with Polatis to make sure he understood his options.
"It is not enough for a defendant to merely read about the terms of an offer on his own," Waddoups said. "That is not effective assistance of counsel."
Travis and Assistant U.S. Attorney Carlos Esqueda testified during the December hearing that even if a defendant accepts an offer, it is not binding until approved by the screening committee; while the term "offer" may be used during negotiations with a defense attorney, it could mean either a formal plea offer or the "beginnings or the ongoing negotiations of a particular case."
However, Travis also said she does not make plea offers to defense counsel unless she is confident they will be approved by the screening committee.
In this case, she withdrew the offer after Leigh filed two motions to dismiss the allegations, calling that evidence that Polatis wanted to litigate rather than settle the case.
Waddoups said Leigh did not review the sentencing guidelines until prompted by his client some months after the trial and only then realized he had never calculated them based on updated charges filed by prosecutors in a superseding indictment.
According to court documents, upon performing the calculation Leigh realizedthat in a "worst case scenario he could be facing a life sentence which made it even all the worse if this was a mistake that, yeah, I had made."
Polatis testified that had he known he faced a possible life sentence and could be convicted, even though he had not paid any money to the undercover agent, he would have accepted prosecutors' plea offer.