Judicial participation in plea negotiations: the elephant in chambers.

• Author: Borenstein, Isaac
• Position: Massachusetts

1. INTRODUCTION II. THE STATE OF THE LAW ON JUDICIAL INVOLEMENT IN PLEA NEGOTIATIONS: OUTSIDE MASSACHUSETTS III. THE STATE OF THE LAW IN MASSACHUSETTS A. Coercion B. Vindictiveness III. OFF-THE-RECORD CONFERENCES A. Right to Confrontation B. Prematurely Indicating Sentence with Inadequate Information IV. RECOMMENDATIONS A. Before a Conference in Chambers B. During a Conference in Chambers C. After the Conference in Chambers D. Trial or Motion Session E. Prohibited Acts V. CONCLUSION APPENDIX A I. INTRODUCTION

   This article is written, first, as a result of our interest in the resolution of criminal cases fairly, including short of trial, and the proper role of judges in that process. Rather than assume a "neutral" posture, we readily admit our bias that there is a useful and just place for judges in the plea bargaining process. Second, it is our hope to begin a more open and ongoing discussion between judges, attorneys, journalists, victims' rights organizations, and others affiliated with or interested in the justice system regarding judicial participation in plea negotiations. It is our strong belief that such dialogue will lead to a more predictable and consistent process in Massachusetts.

   It is our view that judicial participation in plea negotiations can benefit everyone, particularly if handled properly. Discussion of these issues has often been relegated to dicta, judicial conferences, off-the-record conversations, infrequent continuing legal education seminars, and an occasional mention in the media. Perhaps there is no more powerful showing of the need to openly acknowledge this than the recent and highly-publicized case of Murphy v. Boston Herald Inc., (1) where the Supreme Judicial Court forcefully made clear that,

   If there ever was a case that demonstrates the need for lobby conferences, where cases or other court matters are discussed, to be recorded, this is the case. This litigation, with all its unfortunate consequences for those involved, might not have occurred if the critical lobby conference ... had been transcribed. We trust that the lesson learned here will be applied by trial judges to prevent unnecessary problems that often arise from unrecorded lobby conferences. (2) This article is structured as follows. First, we explain the state of the law regarding judicial participation in plea negotiations as it exists nationally. Next follows a discussion on the benefits and dangers of the practice. Third, suggestions are presented for how best to allow judges to assume a role in the attainment of either a plea agreement or a defendant's decision to plead guilty, even absent an agreement with the government (a so-called guilty plea with an un-agreed recommendation). Finally, we discuss what a proposed rule would include, as the means for resolving cases with a judge's participation, but in ways that are transparent and fair to all involved.

   An overwhelming percentage of criminal cases are resolved with the defendant pleading guilty. (3) There is minimal information available telling us what role a judge has played, if any, in a defendant's decision to plead guilty, and specifically whether the judge participated at all in any negotiations; in how many cases a judge participated; and, in those cases where the judge did participate, whether the case ended in a guilty plea or a trial. A number of reasons may motivate a defendant to plead guilty. It is not the aim of this article to explore all of these, but rather to focus on the role that a judge may play in that decision.

   The apparent reluctance in Massachusetts to discuss openly and develop clear rules about judges participating in plea bargaining, along with what changes need to be made and guidelines enacted, may well be the understandable tension created between serious concerns raised by judges engaging in such activities and the administrative necessity to not have every defendant go to trial. It has often been said that without guilty pleas the criminal justice system would collapse. (4)

   Judicial participation in plea negotiations is by no means a revolutionary idea or practice. (5) Judges are participating in plea negotiations across the country and using various methods to do so. (6) The scope of the issue is illustrated by the number of states that directly and specifically address it through a rule or case law. (7) our goal here is, in part, to openly recognize that judges are participating, show how widely the practice has been addressed, and make recommendations about how judges can fairly, beneficially, and effectively exercise a role in the process. By involving themselves in plea negotiations, judges have the unique opportunity to even the playing field between the parties during discussions and serve as a neutral arbiter, listening to the parties' respective arguments for their proposed sentences, reacting to these requests, giving the parties insight into the ultimate decision-maker's opinion, and often increasing the likelihood that they will come to an agreement. (8) In some cases, this will avoid a victim or victim's family having to go through a trial, or a defendant not being able to accept responsibility for his crime over a minor misunderstanding between the parties regarding guilty pleas, a lack of knowledge about the criminal justice system, the inability of the attorneys to communicate, or the unreasonableness of one of the parties. (9) This article advocates for judges' reactive, not active, participation; meaning, judges should not assume a dominant or directive role in discussions between counsel, but should use their involvement to absorb information, listen to arguments by counsel, comment on their sentencing requests, and, where appropriate, request more information, take time to deliberate on, and perhaps indicate a possible sentence. (10)

2. THE STATE OF THE LAW ON JUDICIAL INVOLEMENT IN PLEA NEGOTIATIONS: OUTSIDE MASSACHUSETTS

   Notwithstanding a perceived unwillingness to openly discuss this issue, and with no specific, detailed rules and guidelines about its practice in Massachusetts, many jurisdictions have attempted to grapple more clearly and definitively with whether to allow judicial participation in plea negotiations, and if permitted, how judges can do so appropriately. In this section, we provide examples of jurisdictions that expressly prohibit judicial participation in plea negotiations and those that allow it, but with limitations or conditions attached. In the subsequent section, we describe the state of the law in Massachusetts. The fact that the majority of jurisdictions take no clear position may reflect the ambivalence about the importance of judicial participation in plea negotiations and the concerns they raise.

   In the federal courts, judicial involvement in plea negotiations is expressly prohibited. (11) Several states follow the Federal Rules and exclude judges from being involved in plea negotiations, mostly by prohibiting it in their court rules, but also in court decisions. (12) Colorado exemplifies the view that it is inappropriate for judges to engage with counsel and/or the parties in these discussions. The Colorado Rules of Criminal Procedure explicitly state, "The trial judge shall not participate in plea discussions." (13) Colorado case law outlines the reasoning for not allowing such participation:

   [A trial judge's] participation in plea bargaining is fundamentally unfair and brings to bear the full force and majesty of the court on a defendant. Moreover, when the trial judge couples his intervention with threats of a longer sentence if the defendant goes to trial and is found guilty, he has attempted to use his office to force the defendant to waive his right to a jury trial or be penalized for exercising a constitutionally guaranteed right. In our view, participation by the trial judge in the plea bargaining process must be condemned. (14) In some jurisdictions that bar the practice, courts have gone out of their way to clearly separate a judge's participation in negotiations from the parties presenting a tentatively reached plea agreement and then allowing the judge to react to that. (15) For instance, in Georgia, the Superior Court Rules indicate, "The trial judge should not participate in plea discussions." (16) The case law, however, allows the parties to present a judge with a provisional plea agreement: "If the parties negotiate a tentative plea agreement, the trial court may indicate whether it will concur with the agreement, but that review is separate from the plea negotiation process itself." (17) Later Georgia cases further outline the limits of the rule, indicating that judicial participation is prohibited "when it becomes so great as to render the plea involuntary," including when a trial judge makes comments to the defendant indicating that if he rejects a plea offer and goes to trial, he will face a greater sentence. (18)

   Illinois offers another example of this distinction. The Illinois Supreme Court Rules make clear that, "The trial judge shall not initiate plea discussions." (19) This rule also outlines how the judge shall permissibly participate once a tentative plea agreement has been reached. (20) The rule allows the trial judge to not only hear the tentative plea agreement with the permission of both parties, but also, "evidence in aggravation or mitigation." (21) If the judge does not hear such evidence, he can concur with the agreement conditionally on hearing the representations made to him in open court. (22) Should the judge withdraw his conditional concurrence and the defendant withdraw his guilty plea, the trial judge is required to recuse himself. (23) Commentary on the rule in the Illinois Practice series cites the reasoning of the Federal Rules as to why that state prohibits judicial involvement in plea negotiations. (24)

   A number of other states have either adopted rules or have established case law that hold differently than the...