LITTERING FOR $500: HOW DOES JUDICIAL ESTOPPEL SOLVE THE PROBLEMS THAT FACTUALLY BASELESS PLEAS POSE TO THE DOUBLE JEOPARDY CLAUSE?

• Author: Mangone, Rob

INTRODUCTION

The police arrest Leigh (2) in St. Louis city for possessing less than thirty-five grams of marijuana. The municipal prosecutor offers Leigh a plea deal: plead guilty to the misdemeanor violation of littering, (3) and the prosecutor will drop the marijuana possession charge. (4) Eager to end her legal battle and to be safe from the collateral consequences that can accompany a conviction for the possession of drugs, (5) Leigh accepts the prosecutor's plea deal and pleads guilty to the littering charge.

As Leigh's story demonstrates, it is impossible to understand the modern American criminal legal system without understanding plea bargaining. (6) As many as 94 percent of state felony convictions and 97 percent of federal felony convictions result from guilty pleas. (7) Therefore, any examination of the criminal legal system must confront the reality that "justice" does not play out in front of a jury of twelve peers; rather, it occurs in back rooms and hallways, out of the public eye and away from sunshine's cleansing power. (8)

One consequence of the modern plea-bargaining system is the emergence of "factually baseless pleas." (9) A factually baseless plea "is a guilty plea ... entered by a defendant for an offense that the defendant did not commit, and that all the parties in the case know the defendant did not commit." (10) While there have been no statistical studies that examine the frequency of these factually baseless pleas, judges and lawyers within the criminal legal system acknowledge that they occur frequently." Many actors see these baseless pleas as a win-win-win situation--defendants get more lenient sentences, judges get reduced docket loads, and prosecutors get more time to spend on "serious" crimes. (12) However, critics of these pleas argue that they promote unequal treatment of defendants, inaccurate results, and general discontent with the criminal legal system. (13)

Additionally, factually baseless pleas may create other unexpected consequences for defendants. For example, when pleading guilty, Leigh assumes that it will be the last time that she will hear about the drug possession incident. However, one month later, a state prosecutor decides to charge Leigh with marijuana possession arising from the same incident. Leigh's attorney assumes that since she has already been prosecuted for this crime she will be protected from this subsequent prosecution by the Double Jeopardy Clause of the Fifth Amendment and Waller v. Florida. (14)

If Leigh had been originally charged in state court, received a plea deal, and then been re-charged by another state prosecutor, she could potentially rely on the Supreme Court's decision in Santobello v. New York for protection. (15) In Santobello, the Court held that an agreement made with one prosecutor in an office operates to bind all of the prosecutors in the office because the "[t]he staff lawyers in a prosecutor's office have the burden of 'letting the left hand know what the right hand is doing' or has done." (16) However, an agreement by the municipal prosecutors in Leigh's case would not bind the state prosecutors because they are not on the "same hand" as the municipal prosecutors. (17) It was not the state prosecutors who promised to dismiss her case, it was the municipal prosecutors. Therefore, the Supreme Court's requirement that prosecutors follow through on their Promises (18) does not provide Leigh any relief or protection.

Additionally, a closer examination of the Supreme Court's Double Jeopardy jurisprudence, based on the decision in Blochburger v. United States, (19) makes it unclear whether Leigh is protected from the subsequent prosecution by Waller and the Double Jeopardy Clause. (20) This Note examines whether the Double Jeopardy Clause protects Leigh and other criminal defendants in similar situations--ultimately concluding that it does not. It also uses the Double Jeopardy Clause as a lens to examine how actors within the criminal legal system fail to consider the implications of factually baseless pleas when entering into these agreements. Finally, it proposes using the doctrine of judicial estoppel to protect criminal defendants from subsequent prosecutions arising out of factually baseless pleas.

In Part I, this Note examines the American plea-bargaining system. An understanding of the current state of the American criminal legal system, specifically the explosion of plea bargains over the last century, is crucial to understanding the pervasiveness of factually baseless pleas within the system.

In Part II, this Note defines factually baseless pleas and explores what constitutes factually baseless pleas. It will then quickly discuss the arguments that have been presented in support of, and in opposition to, the use of factually baseless pleas, before concluding with an examination of the impact that these pleas have on defendants and the criminal legal system as a whole.

In Part III, this Note will analyze the Double Jeopardy Clause. While the jurisprudence is somewhat muddled, this Note attempts to unpack the current state of the Double Jeopardy Clause, specifically as it relates to subsequent prosecutions, which has often followed a formalistic set of rules.

In Part IV, this Note discusses the intersection of factually baseless pleas and the Court's double jeopardy jurisprudence. Specifically, it focuses on how and why factually baseless pleas fail to protect criminal defendants from subsequent prosecutions. The intersection of factually baseless pleas and the Double Jeopardy Clause highlights the significant jurisprudential issues that these baseless pleas create for the American criminal legal system.

In Part V, this Note discusses judicial estoppel, and the application of judicial estoppel by the courts. Courts have interpreted this equitable doctrine differently in many jurisdictions, but this Note focuses on the guidelines laid down by the Supreme Court and the State of Missouri, as well as the doctrine's application in criminal cases.

Finally, in Part VI, this Note advocates for the use of judicial estoppel to protect criminal defendants from subsequent prosecutions after they accept a factually baseless plea. While the elimination of factually baseless pleas would be preferable to the "band-aid" solution that judicial estoppel presents, the lack of actors calling for the elimination of factually baseless pleas makes their abolition in the near future unlikely. In the meantime, judicial estoppel would prevent prosecutors from abusing factually baseless pleas, ensure that the courts do not expose defendants to multiple punishments for the same offense, and safeguard the integrity of the court system.

1. PLEA BARGAINING: THIS IS AMERICA (21)

   Plea bargaining first became a systemic feature of the American criminal legal system in the early to mid-nineteenth century. (22) While prosecutors had previously used plea bargains episodically, (23) pleas grew in popularity over the nineteenth century, and by the early twentieth century they became the defining feature of American justice. (24) While it is commonly thought that the increase in plea bargains responded directly to rising caseload pressure, recent scholarship by Mary Vogel has challenged that assumption. (25) Based on her research in Boston, Vogel contends that plea bargaining actually "preceded rather than followed the marked increase in caseload seen after 1840." (26) Thus, she argues that plea bargaining was a form of social control used by the political elites to maintain their status. (27) The plea bargaining process gave these political elites discretion over the criminal legal system while consolidating conflicts into one controllable system. (28)

   George Fisher's research deepens the understanding of plea bargaining by focusing on the role of courtroom actors in developing and perpetuating plea bargains. (29) Fisher focuses on how prosecutors, trial judges, and appellate judges expanded the use of plea bargains during the early twentieth century. (30) These plea bargains seemingly protect the legitimacy of the legal system because they create a presumption that the accused committed the crime and protect juries from making incorrect decisions. (31) When a defendant accepts a plea bargain, there is no cross-examination to test the facts of the case, (32) and the guilty plea is almost always accepted as conclusive and presumptively correct. (33) Therefore, in theory and in the eyes of many judges, prosecutors, and the public, plea bargains promote the values of efficiency, efficacy, and predictability. (34)

   In part because of their perceived value to the judicial system, and possibly because of the prevalence of plea bargains by the mid-twentieth century, the Supreme Court has repeatedly affirmed the use of plea bargains. (35) In fact, it would be almost impossible to remove plea bargains as a part of the American criminal legal system because they now define American criminal law. (36) Their essential role in the modern American legal system is demonstrated by the fact that there have never been any procedural changes that have threatened to remove plea bargains from prominence. (37) However, despite their continued vitality, there are certainly many criminal defense attorneys who would argue against plea bargaining because it systemically favors prosecutors. (38)

   This systemic imbalance gives prosecutors enormous power to make arbitrary decisions whether to offer plea deals, when to offer plea deals, and the substance of those deals. (39) "Even for misdemeanors, a prosecutor frequently has a variety of options at the charging stage of the process." (40) Prosecutors often use these options to engage in "charge-bargaining," which is a tactic used to control defendants and coerce them into pleading guilty in exchange for a lesser sentence or charge. (41) A "charge-bargain" occurs when a prosecutor agrees to replace "a higher charge with a...