Friedman Legal Solutions, PLLC

Criminal Appellate & Post-Conviction Services

Harmless Error

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).