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April 15, 2013

What should happen after improper federal judicial participation in plea negotiations?

The question in the title of this post is the question being considered by the Supreme Court during oral argument today in US v. Davila. I have not given Davila too much attention until now, in part because I think I would prefer a world with a lot more regulation and judicial involvement in plea negotiation. Moreover, as this SCOTUSblog preview by Rory Little suggests, there may be a host of reasons it makes sense for me to be rooting about the federal criminal defendant in this matter. Here is how Rory's effectivepreview starts:

With apologies to fifty-seven of my fellow “Criminal Law and Procedure Professors” who have filed an amicus brief in support of respondent Anthony Davila in United States v. Davila (set for argument on Monday April 15 -- can that really be a coincidence for a felony tax offender?), this looks like a simple case.  “Deceptively simple,” Davila’s lawyer Josh Rosenkranz might respond -- his brief does a good job of making one pause at the implications of the underlying facts.  But the Question on which the Court granted -- whether “any degree of judicial participation in plea negotiations in violation of Federal Rule of Criminal Procedure 11(c)(1) automatically requires” reversal (my emphasis) -- really does not require examination of these implications.  In recent years, the Court has firmly rejected endorsing “automatic reversal” rules, let alone ones based on procedural rules rather than the Constitution, rules that many states do not follow.   Expect Monday’s argument to be respectful but one-sided on the Question Presented, with the more defendant-friendly Justices perhaps focused on how best to limit a reversal so as to not endorse the disturbing implications that Davila (and his law professor amici) admirably present.

I expect the oral argument transcript in Davila will be available later this afternoon, and I will post it here when it is.

UPDATE:  The transcript in United States v. Davila is now available at this link.

April 15, 2013 at 12:27 PM | Permalink


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I'll add in the corollary implied by the Professor's side comment-- particularly as the alleged improper involvement was by the magistrate judge not the plea judge.

If, as suggested by Frye, there should be some record made that a plea offer has been communicated to and rejected by the defendant before a case goes to trial, who is supposed to make that record if -- as suggested by Davilla -- no judge should be involved in plea negotiations. I guess there are some judges upon hearing an extremely favorable plea offer could stay perfectly neutral in asking the defendant if he has previously heard that offer and rejected it, but most judges that I have practiced in front of would be tempted to put at least some spin on the questions to make it clear that only an idiot or a person who was truly innocent would go to trial rather than take the offer.

Posted by: tmm | Apr 15, 2013 2:40:02 PM

Some fantastic advocacy on behalf of Mr. Davila.

Posted by: federalist | Apr 15, 2013 10:01:51 PM

I do not agree Doug.

Fundamentally a judge involved in plea negotiations is both corruptive and corrosive. What can a judge add to the process except the power of his position? Nothing. So it should be disallowed, period.

Posted by: Daniel | Apr 16, 2013 3:19:11 AM

Hey Daniel: Do you think that the terms of judge's power at sentencing is "both corruptive and corrosive"? In a world with mandatory minimums and other limits on federal judges' sentencing authority, combined with a set of additional sentencing regulations requiring the judge to consider certain fact and factors, the reality is that the plea negotiations are often about structuring and/or limiting the judge's power at sentencing.

What I think the judge can and should add to the plea process, in addition to transparency and record-making value suggested by tmm, is to be a voice concerning the public importance of an "accurate" plea process concerning guilt that does not inappropriately structure or limit the judge's sentencing authority in light of legislative goals.

This is an ivory tower perspective, and thus I understand your concerns here. Indeed, in my perfect ivory tower world, one judge would have a special role for helping to regulate the plea process (kind of like a mediator) and another judge would be subsequently tasked with sentencing.

Posted by: Doug B. | Apr 16, 2013 8:21:01 AM

"Do you think that the terms of judge's power at sentencing is "both corruptive and corrosive".

Perhaps. But there is a key difference. Sentencing happens AFTER a person has plead or been found guilty whereas involvement in plea negotiations is BEFORE. Fundamentally, the requirement of a plea is that it be both knowing and voluntary and it seems to me that some people would prefer to increase the "knowing" side of that equation by getting a judge involved. The problem is that this reduces the "voluntary" nature of the plea due to the judge's position of power. I understand the concern that a plea cannot be truly voluntary if it is not truly knowing. But if that is a genuine problem (and I am not sure it is) it strikes me that there has to be a better solution.

I know personally how intimidating it can be when a person who has authority over you tells you it is the best deal you have. In my case it was merely a traffic ticket that I plead "no contest" to because the magistrate judge told everyone in the room a parade of horribles that would possible happen if we did not. I let myself be intimidated on something I genuinely believed I did not do simply because it seemed easier to pay several hundred dollars in fines than to fight the system. I cannot imagine the physic terror I would have felt if my actual liberty had been at stake. And there is no doubt in my mind I gave the advice greater weight because it came from a judge.

Perhaps I am more sensitive to abuses in power than the average person because of background in psychology. In their own way psychologist have the power to hurt as well as heal, in their own way they are judges. We call judgements "clinical diagnosis" rather than "legal opinions" but both are exercises of power. Judges of all types have power and we should have be highly sensitive to how they exercise it least they become inured to it. That the first step towards abuse.

Posted by: Daniel | Apr 16, 2013 5:47:27 PM

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