SCOTUS: No Automatic Reversal of Conviction When Judge Improperly Participated in Plea Discussions

Federal Rule of Criminal Procedure 11 sets forth various requirements and prohibitions relating to guilty pleas, including a ban on judges participating in plea discussions.  If there is a violation, Rule 11(h) specifies that a “variance from the requirements of this rule is harmless error if it does not affect substantial rights” — no harm, no foul.  However, at least two circuits have adopted a rule of automatic vacatur of the guilty plea if the judge participated in plea discussions.  Other circuits, including the Seventh, have applied the general 11(h) harmless error rule in these situations.

Earlier today, in United States v. Davila (No. 12-167), the U.S. Supreme Court unamimously resolved the circuit split in favor of the general harmless error rule.  As the Court saw it, the legal question was an easy one: “[N]either Rule 11 itself, not the Advisory Committee’s commentary on the Rule singles out any instructions [in Rule 11] as more basic than others.  And Rule 11(h), specifically designed to stop automatic vacaturs, calls for across-the-board application of the harmless-error prescription . . . .”

The Court declined to adopt any bright-line rules regarding the application of the harmless-error rule: “Our essential point is that particular facts and circumstances matter.”  Having determined that the lower court should have applied the harmless-error rule, the Court chose to remand for further consideration of the “particular facts and circumstances.”  At the same time, the Court did say, “Had Davila’s guilty plea followed soon after the Magistrate Judge told Davila that pleading guilty might be the ‘best advice’ a lawyer could give him, this case may not have warranted our attention.”  The suggestion seems to be that a guilty plea entered “soon after” the judge recommended such a plea would pretty clearly not fall into the category of harmless error.  What made Davila’s case more difficult was the three-month delay between the Rule 11 violation and the guilty plea.

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Defendant Can Challenge Attorney’s Failure to Appeal Despite 2255 Waiver

Charged in federal court with drug trafficking, Fred Dowell decided to enter into a plea agreement with the government.  The deal included various stipulations as to his sentence, but reserved for Dowell the right to challenge the government’s contention that he should be sentenced as a career offender under the federal sentencing guidelines.  Assuming the stipulations were accepted by the sentencing judge, Dowell waived his right to appeal the sentence, except that he expressly reserved the right to appeal an adverse career offender determination.  Dowell also surrendered his right to mount a collateral attack on the sentence under 28 U.S.C. §2255.

Dowell was, in fact, sentenced as a career offender.  By his account, he instructed his lawyer to appeal this decision, as he had reserved the right to do.  No appeal was filed.  By the time Dowell realized this, it was already too late for an appeal to be taken.  Accordingly, he tried a §2255 motion in the district court, contending that his lawyer’s failure to appeal constituted ineffective assistance of counsel in violation of the Sixth Amendment.  Sorry, said the district court, but you waived your rights under §2255 in the plea agreement.

Earlier today, the Seventh Circuit reversed in Dowell v. United States (No. 10-2912).   (more…)

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Federal Criminal Cases, 1928-1930: Surprisingly Similar to Today, But Also Very Different

In anticipation of the conference here next month on the Wickersham Commission, I’ve been reviewing the thirteen voluminous reports the Commission issued in 1931 on various aspects of the criminal-justice system.  One that holds some interesting surprises is the “Progress Report on the Study of the Federal Courts.”  The heart of this report is a fascinating, detailed statistical analysis of the criminal cases in the District of Connecticut for fiscal years 1928-1930.

One thing that strikes me as remarkable is the almost complete absence of trials — the system was dominated then, as now, by guilty pleas.  Old-timers today will sometimes tell you about a golden age of trials in the federal system in the 1970’s.  In that decade, guilty plea rates hovered between 77% and 82%.  After 1981, the rate climbed steadily, reaching more than 96% of adjudicated cases in 2009.  But this, apparently, is not a new phenomenon.  Among 740 criminal cases filed in the District of Connecticut between 1928 and 1931, only nine went to trial.  That’s right, only nine trials in three years.  (Eight of these, by the way, took less than one full day to try.)  The guilty plea rate in adjudicated cases was over 98%.

After doing some digging for national data, I discovered that the guilty plea rate rose steadily between 1916 and 1933, reaching a peak of 91%.  (See Ron Wright’s helpful data compilation here.)  So, Connecticut seems not to have been terribly atypical.

The Connecticut data are, in fact, strongly reminiscent of a modern “fast-track” plea-bargaining system.  (more…)

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Observations on Lafler and Frye: Little Relief in Sight for Defendants Whose Lawyers Botched Plea Negotiations

In a pair of much-noted decisions last March, the Supreme Court held that the constitutional right of defendants to effective assistance of counsel is not limited to trial representation, but also extends to plea bargaining.  More specifically, in Lafler v. Cooperthe Court addressed the case of a man who was convicted at trial after his lawyer advised him to turn down a generous plea deal on the basis of what seems to have been an egregious misunderstanding of the law; the Court held that the original offer must again be made available to the defendant.  Meanwhile, in Missouri v. Frye, the Court addressed the case of a man whose lawyer failed to tell him of a pending plea offer until after the offer had expired; the Court held that the lawyer’s performance fell below the constitutionally required minimum, but remanded for a determination as to whether the defendant had actually been prejudiced by his lawyer’s incompetence.

To read Justice Scalia’s two dissents in these cases, one might think the Court had radically broken from precedent and opened up plea bargaining to constitutional scrutiny for the first time.  In truth, the principle that the Constitution guarantees minimally competent legal representation at what is without question the most important phase of contemporary criminal litigation follows naturally from the Court’s earlier decisions and has been widely recognized in the lower courts for years.  Nor is there anything novel about the Court imposing constitutional standards on the plea-negotation process; the Court began doing so in the 1970’s.

In fact, Lafler and Frye remind me of one of the Court decisions from that era, Henderson v. Morgan (1976).  The comparison is not meant as a compliment.   (more…)

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SCOTUS to Decide on Padilla Retroactivity

Earlier today, the Supreme Court granted cert. in Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011). Chaidez held that the Court’s decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), would not be applied retroactively to defendants whose convictions were already final when Padilla came out. In Padilla, the Court held that a lawyer performs below minimal constitutional standards when he or she fails to advise a client of the deportation risks of a guilty plea. Now, the Court itself will have an opportunity to determine whether its decision should have retroactive effect.

The majority and dissenting judges in Chaidez all agreed that the case turned on whether Padilla announced a new rule of criminal procedure, within the meaning of Teague v. Lane, 489 U.S. 288 (1989). With only a couple of execeptions not relevant here, Teague prohibits retroactivity for new rules. So, the question in Chaidez seems to boil down to whetherPadilla announced a new rule or merely applied the basic ineffective assistance test of Strickland v. Washington, 466 U.S. 668 (1984).

(more…)

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Who Are the Juvenile Lifers? New Report Paints a (Mostly) Grim Picture

The Sentencing Project has a new report on prisoners sentenced to life without parole for crimes committed while they were under the age of 18.  Entitled “The Lives of Juvenile Lifers,” the report presents the results from a national survey of more than 1,500 JLWOP inmates.  The report is very timely in light of the Supreme Court’s two pending JLWOP cases — perhaps the new information will help to convince the justices that JLWOP does indeed constitute cruel and unusual punishment, even for homicide crimes.  In any event, here are some of the highlights.

(more…)

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Mandatory Minimums and the Disappearing Trial

The New York Times has a new article on mandatory minimums and plea bargaining.  The article notes the near-disappearance of the American criminal trial over the past generation:

Plea bargains have been common for more than a century, but lately they have begun to put the trial system out of business in some courtrooms. By one count, fewer than one in 40 felony cases now make it to trial, according to data from nine states that have published such records since the 1970s, when the ratio was about one in 12. The decline has been even steeper in federal district courts.

Although there are doubtlessly multiple causes for this trend, the article focuses particularly on the role of mandatory minimums, which have given prosecutors an ever-increasing amount of leverage in plea negotiations.  Even an innocent defendant must think long and hard about going to trial when a plea would mean a sentence of only a couple of years of prison but a trial conviction might result in a mandatory minimum of ten years or more.  The system has effectively made a lie of the constitutional promise of a right to a jury trial.

When I cover this subject in Criminal Procedure, students inevitably wonder how to reconcile the practice of threatening defendants with mandatory minimum charges if they go to trial with the prosecutorial vindictiveness doctrine of Blackledge v. Perry.  The answer?  The Supreme Court carved out an exception to Blackledge and gave its stamp of approval to coerced guilty pleas in Bordenkircher v. Hayes.  A few years ago, I argued in this article that it was time for the Court to revisit Bordenkircher, especially in light of the Court’s revitalization of the jury-trial right in Apprendi v. New Jersey.  Sadly, the Court has not yet given any indication that it has noticed my argument.

Hat tip to Tony Cotton.

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SCOWIS to Consider Required Notice for Mandatory Minimum

Late last month, the Wisconsin Supreme Court agreed to decide whether a defendant’s conviction should be set aside when he was not informed either by the complaint or by his lawyer that he would be subject to a twenty-five-year mandatory minimum if convicted.  The unpublished Court of Appeals opinion in State v. Thompson is here, courtesy of On Point.

Thompson apparently went to trial on a sex assault charge without realizing that he faced the long minimum sentence.  Although this seems like a rather big thing to spring on a defendant only after he has been convicted, it is not at all clear there is a viable legal theory to support post-conviction relief on this basis.

The court will consider three possibilities:

(more…)

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Prosecutorial Accountability, Internal and External

I am just one of the many commentators who have bemoaned the absence of robust accountability for prosecutors in a system dominated by plea bargaining.  (See, for instance, my papers here and here.)  Now, Ron Wright and Marc Miller, two of my favorite authors on criminal procedure, have an interesting new paper exploring prosecutorial accountability from a global perspective.

Wright and Miller contrast the traditional American and civil-law approaches to prosecutorial accountability: the U.S focuses on external accountability, while most of the rest of the world focuses on internal accountability.  Thus, in the American system, prosecutors are traditionally elected at the local level, which theoretically establishes accountability to voters.  Elsewhere in the world, prosecutors are subject to bureaucratic accountability through large, centralized justice departments.

Wright and Miller argue that the traditional distinction between the U.S. and civil-law approaches is breaking down, as American prosecutorial offices are growing more bureaucratic and European offices are becoming more responsive to the public.  “Systems with a blend of internal and external controls on criminal prosecutors are now the norm around the world” (3).

Wright and Miller provide a helpful overview of the traditional civil-law approach, which I find in many respects quite attractive.

(more…)

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A Harsh Review of Milwaukee’s Deferred Prosecution Program

Today’s Journal Sentinel offers what purports to be the first review of the Milwaukee County District Attorney’s deferred prosecution program.  The first three paragraphs provide a good sense of the content and tone of the report:

Milwaukee County’s deferred prosecution program has grown into a major initiative that allows hundreds of defendants each year to walk away from criminal charges with little or no consequences in exchange for getting treatment and staying out of trouble.

Some defendants awarded breaks under the program committed serious crimes, including several that prosecutors admit violate their own policy, a Journal Sentinel analysis of three years of court records has found.

The review of cases filed from 2007 to 2009 found dozens of examples that raise questions about how the county’s deferred prosecution program is being implemented.

The report then discusses a handful of cases in detail.  None can readily be characterized as a success story, and readers may be left with a sense that the program routinely results in the dismissal of charges against violent offenders, pedophiles, and big-time drug dealers.  (A short related piece appearing on the third page of the DPA coverage does discuss an additional case that prosecutors apparently touted as a success story, although it, too, involves lurid facts — a sexual assault of a juvenile — that may leave few readers feeling reassured about the type of defendants who benefit from the program.)

Of course, recounting success stories is unlikely to sell many newspapers.  Still, I’m disappointed that a review of an important criminal justice initiative seems based on little more than a few anecdotes that were apparently selected for their shock value.

(more…)

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