Plea Bargaining

Washington Post Criticizes "Sledge Hammer Justice"

There was an interesting editorial by George Will in today's Washington Post about “sledge hammer” justice about how the prosecutor can use its charging discretion to force most defendant’s to plea guilty or face exceptionally long sentences. While some consideration should be permitted for pleas, when is the “trial tax” too excessive?

The Trial Tax

There is a very interesting article in Today’s New York Times on the trial tax. It recognizes what most defense attorneys often know. Defendants who demand jury trials and assert their innocence or often threatened with very severe penalties by the Government to try and force them to forego a trial and take a plea. Even the innocent capitulate. The US Supreme Court upheld this conduct in Bordenkircher v Hayes but there needs to be limits. I understand that settlements mean posturing and that both sides settle which they are not completely happy with, but there can be differences running in the decades.
It is easy to think that you would stand your ground if you are actually innocent, but what would you do if they offered you probation for an offense you did not commit versus twenty years in the joint if the jury convicts. The Acceptance of Responsibility scorings on the Sentencing Guidelines were meant to create an acceptable difference. It gives you about a 15% discount on the average sentence for pleading guilty. The practices outlined by the New York Times are highly problematic.

A Judge's Excessive Involvment in the Plea Bargaining Process is Not Per Se Reversible Error

Reversing the decision of the United States Court of Appeals for the Eleventh Circuit, the US Supreme Court has held that a judge’s violation of Fed. R. Crim. P. 11c(1)’s prohibition on judicial involvement in the plea bargaining process is not per se reversible error. United States v Davilla, Supreme Court No. 12-167. The opinion was authored by Justice Ginsburg (with Roberts, Kennedy, Breyter, Alito, and Sotomayor joining). Justices Scalia and Thomas issued a concurring opinion. The Court found that Fed. R. Crim P. 52(b)s harmless error standard coupled with Fed. R. Crim P. 11(h)’s Trumped the mandatory language of the Rule c. The Court also found that gravaman of a Rule 11c violation was that the Defendant may be coerced into a plea, rather than a judge retaliating against the Defendant for not taking a plea. The Court stated that Rule 11(h) was inserted into the Rule 11 to reject the broad reading of McCarthy v. United States, 394 U.S. 459 (1969).

NACDL Ethics Opinion: 2255 Waivers Are Unethical

For years, federal criminal defendants have been forced to give up their right to appeal in order to accept a federal deal. Prosecutors have lately been pushing for waivers of 2255 (post-conviction motions) as well. There has been huge push back. In October, the National Association of Criminal Defense Attorneys issued an ethics opinion condemning this practice. The ethics opinion is a wealth of resources and a great place to start the research on the subject.

Huge SADO Win in the US Supreme Court

Congratulations to colleague and friends at the State Appellate Defender’s Office for the wonderful victory in Lafler v Cooper. Lafler reaffirmed that counsel has a duty to convey a plea bargain to a criminal defendant and that failure to do so is not negated by giving the client a fair trial. To quote from SADO’s own blog:

On Wednesday March 21, 2012, the United States Supreme Court released the decision in Lafler v Cooper, finding that habeas relief was warranted due to ineffective assistance of counsel during the plea bargaining stage of the proceedings.  Lafler was argued by SADO Assistant Defender Valerie Newman on October 31, 2011, with Assistant Defender Jacqueline McCann serving as second chair.  The decisions in Lafler, and the related case of Missouri v Frye, are being hailed as "the single greatest revolution in the criminal justice process since provided indigents the right to counsel" - a quote from coverage in the New York Times.  Additional materials and full coverage of events can be found on Scotusblog's website.    



While SADO rightly turns to the New York Times for their praise, I think a better source of the importance of the ruling is to read what our enemies have to say. The Criminal Justice Legal Foundation’s whose mission statement says that their goal is provide reduced rights for criminal defendants. Their blog utterly blasts the ruling and it is authored by no less than their lead counsel
Kent Scheidegger.

COA Rules Padilla Isn't Retroactive

The Michigan Court of Appeals ruled that Padilla v Kentucky, 130 S Ct 1473; 176 L Ed 2d 284 (2010) is not retroactive. Padilla held that defense counsel had to tell a non-citizen about the deportation of the consequences of his/her plea. People v Gomez, Court of Appeals No. 320485.

Virginia Bar Says that Prosecutor Cannot Demand Waiver of IAC or Post-Conviction Challenges as a Condition of a Plea Agreement

The Virginia State Bar recently issued a Legal Ethics Opinion (LEO 1857) that addresses these issues by declaring it unethical for a defense attorney to recommend these provisions, and made it unethical for a prosecutor to require waivers of post-conviction challenges (e.g. 6.500 motions) or waivers of ineffective assistance of counsel challenges as a condition of a plea agreement.

Padilla v Kentucky: It is Looking Good!

With the execution of Troy Davis looming in Georgia, he found a strange ally in former Republican Representative Robert Barr. In an Op-Ed piece in today’s New York Times, Mr. Barr stated that federal courts have abdicated too much of their sovereignty in refusing to consider this claim.

There is compelling evidence that death row inmate Troy Davis may be innocent, but federal and state courts have consistently refused to hear the evidence. Mr. Davis has exhausted all conventionlal challenges to his conviction, Mr. Davis has resorted to an original writ of habeas corpus in the United States Supreme Court. If that petition fails, Mr. Davis will be executed. In refusing to hear Mr. Davis’s appeals, courts have relied on provisions contained in the 1996 Anti-Terrorism Act (“AEDPA”) and held that they are barred from hearing the petition. Mr. Barr argues that the courts have misread the law. For more information on Mr. Davis’s case, please see his website which contains many of the opinions and a nice time line of the case.

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Michigan Supreme Court Proposes Narrowing Judge's Involvement in Plea Bargains

War in the Macomb Circuit Court: Prosecutor Refuses to Offer Plea Bargains in Judge Biernat's Court