"Make Him an Offer He Can't Refuse": Mezzanatto Waivers as Lynchpin of Prosecutorial Overreach.

• Author: Mueller, Christopher B.

CONTENTS I. INTRODUCTION II. HOW DID WE GET HERE? A. The Mezzanatto Case 1. The Holding 2. The Case Itself 3. The Mezzanatto Appeal; The Mezzanatto Proviso B. Plea Bargaining Waivers Expand III. DIFFERENT ROADS, SAME DESTINATION: THE WAIVER IN OPERATION A. Beginning Point--The Parties Talk B. End Point--No Deal, As Negotiations Fail C. End Point--Deal Reached; One Party or Another Withdraws D. End Point--Deal Reached, but Court Rejects It E. End Point--Defendant Enters Plea, but Withdraws It IV. MEZZANATTO WAIVERS SHOULD BE UNLAWFUL A. They Make Plea Bargaining Unfair and Magnify Its Dys functionality 1. Unfairness 2. Dysfunctionality B. They Produce Untrustworthy Statements C. They Are Unenforceable Contracts D. They Violate Rule 410 1. Rule 410 Regulates Plea Bargaining 2. Rule 410 Is Not a Default Principle V. THERE IS A BETTER WAY A. If Plea and Agreement Fail to Resolve Case, Waiver Should Be Inoperative B. Both Substantive and Impeaching Uses Should Be Blocked C. Both Proffer and Plea Waivers Should Be Invalid VI. CONCLUSION I. INTRODUCTION

It is inherently unfair for the government to engage in [plea bargaining], only to use it as a weapon against the defendant when negotiations fail. United States v. Ross, 493 F.2d 771, 775 (5th Cir. 1974) Everyone who saw The Godfather in theaters or on television remembers what Michael Corleone told Kay Adams in explaining how Michael's father persuaded a Hollywood agent to release Johnny Fontane from an ironclad contract. The agent agreed to release Fontane because he was led to understand that either his signature or his brains would be on the paper--that was the offer he couldn't refuse.

Federal prosecutors (and some state prosecutors) enjoy similar powers, allowing them to exert as much muscle over defendants as Vito Corleone (Michael's father) exerted over the agent. Here is how it happens: Before sitting down to talk, the prosecutor asks the defendant (usually with his lawyer present) to sign a waiver as part of a proffer agreement, under which he promises to speak truthfully and agrees that everything he says can be offered in evidence against him if a trial should eventuate. What we have is often called a "proffer waiver" or "advance waiver" that is signed before the prosecutor offers a plea agreement or even suggests that a plea agreement might be acceptable and before the defendant makes the statements covered by his waiver. If ensuing discussions fail to bear fruit, or if they lead to a plea agreement but one of the parties backs out (even if the defendant does so with the court's permission after entering a plea), the waiver is usually enforceable anyway.

Alternatively, the prosecutor and defendant (with counsel) sit down to talk, and the conversation leads to a plea agreement that includes a waiver, this time covering everything that the defendant has said in the conversations (and sometimes what he says thereafter too), and often stipulations of fact, allowing the use of all this material in evidence against him if a trial should eventuate. What we have here is often called a "plea bargain waiver," obtained as part of a plea agreement.

Perhaps it is an exaggeration to say that the cost of talking to the prosecutor, or at least the cost of reaching a deal in this system, is that the defendant will certainly be convicted of something--but it is not much of an exaggeration. A defendant who wants a deal--and all of them do--knows he must incriminate himself in order to enter a plea. He must do so because a court will not accept a plea unless it is satisfied on the basis of statements by the defendant in court--plea "allocutions," as they are called (the defendant is not subject to cross), that repeat what he told the prosecutor and show his guilt. The reason prosecutors insist on a waiver is to force the defendant to make a plea or to nail him to the plea that he agrees to make. Without the waiver, what the defendant says to the prosecutor would be excludable as plea bargaining statements under Rule 410 of the Federal Rules of Evidence. (1) So the defendant signs a waiver and speaks his piece (or speaks his piece, then signs a waiver), knowing he is incriminating himself but hoping that he will get a good deal or that the one he has struck will prove good and win the court's approval.

If this system sounds unfair, there is a good reason: It is unfair, as the Ross case quoted at the beginning of this article recognized in 1974. Of course we cannot aspire to create "market conditions" in which the prosecutor and defense have "equal bargaining power." The state (both federal and state governments) has a monopoly on police power, courts, and the prosecutorial function, and the risks to the defendant (incarceration or even death) are incommensurable with the risks to the prosecutor (failing to represent the public interest adequately, or perhaps frustration of political ambitions or even loss of a job). But we can aspire to a system in which the state cannot mercilessly exploit this imbalance in the extreme way that the waiver doctrine invites. And we can aspire to a system in which the mere act of trying to reach a compromise does not prejudice one of the two parties and in which the mechanism for determining guilt or innocence when bargaining fails is not corrupted by the bargaining itself.

Bargaining in the setting of defense waivers, as described above, goes forward across the country every day, particularly in the federal system (in some states too), probably thousands of times a year. Prosecutors had begun to get defendants to sign waivers before the decision in Mezzanatto, but that decision so strongly reinforced this technique that it quickly became commonplace in the federal system and spread to many states as well. Plea bargaining has generated a vast literature, much of it critical, and Mezzanatto too has been dissected from several perspectives, (2) but its pivotal role in a system that is operating badly has never been adequately examined.

In what follows, this Article begins by looking at the decision in Mezzanatto. This Article then describes the settings and manner in which Mezzanatto waivers operate and sets out the reasons why current law works badly and needs reform. Mezzanatto waivers make the plea bargaining process unfair and exacerbate its dysfunctionalities (overcharging, over-convicting, and overincarceration). These waivers produce untrustworthy statements that are then offered against the rare defendant who dares go to trial, including the defendant whose bargain has broken down for any reason. Often these waivers rest on nonexistent or illusory consideration and should not be enforceable as contracts. Finally, they violate Evidence Rule 410, and it is here that the unfairness described above becomes most visible. Under what this Article calls the "unitary principle," recognized by the Supreme Court ninety years ago and still invoked in modern opinions (but often ignored), and under what this Article calls the "Mezzanatto proviso," there is room to take a new direction.

This Article concludes by outlining a better way: Mezzanatto waivers should be unenforceable whenever bargaining or a plea deal breaks down, whether the reason is that the parties cannot reach a deal, or that the prosecutor or defendant withdraws, or that the court rejects the plea. Under the unitary principle, the waiver should be inoperative in all these situations, and the Mezzanatto proviso leaves room to render the waiver inoperative whenever a defendant justifiably withdraws from a deal or plea or the court refuses to honor a deal. Equally important, prosecutors do not need waivers to ensure cooperation by defendants in the trials of others (a common condition in such arrangements), and refusing to enforce waivers would contribute significantly to repairing a system that works badly.

2. HOW DID WE GET HERE?

   1. The Mezzanatto Case

      1. The Holding

         The critical point is the Mezzanatto case, decided in 1995. (3) There the Supreme Court reviewed a federal drug conviction and concluded that defendants can waive their right under Evidence Rule 410 to exclude statements they make to government lawyers during plea negotiations and can do so in advance, on the threshold of conversations. Actually, the issue was narrower: The government insisted only that defendants can waive their right to exclude such statements if they later testify and say something inconsistent with what they said before (the Court dealt only with the impeaching use of plea bargaining statements).

         Seven Justices signed the majority opinion by Justice Thomas concluding that defendants can waive this right, but five Justices wrote separately. Three of them (Justices Ginsburg, O'Connor, and Breyer) concurred in Justice Thomas' opinion but stressed that they were not agreeing to a broader waiver that would let the government use such statements during its case-in-chief. Two others (Justices Souter and Stevens) dissented and would not even agree to the narrow holding allowing the impeaching use of plea bargaining statements.

         Mezzanatto was not the first decision approving waivers of the protection of Rule 410. As early as 1987, cases took this direction. (4) But Mezzanatto is the decisive case, and it reduced Rule 410 to a default provision--in federal courts, really a dead letter. Rule 410 had been enacted twenty years earlier, along with Rule 408 covering civil settlement negotiations, with the idea of encouraging both sides to sit down and talk by making such negotiations risk free, so that if the parties could not agree on a deal they would be placed back on square one--as though nothing had happened. Now, thanks to Mezzanatto, federal courts in many follow-up opinions have done what the three concurring Justices feared--broadening waivers to cover use of the defendant's statements during the prosecutor's case-in-chief. (5) Other federal courts have approved use of the defendant's statements...