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Citation:
Richard Klein, Due Process Denied: Judicial Coercion in
the Plea Bargaining Process, 32 Hofstra L. Rev. 1349,
1424 (2004)
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DUE PROCESS DENIED: JUDICIAL COERCION IN
THE PLEA BARGAINING PROCESS
RichardKlein *
Our legal system is based on the principle that an independent, fair and
competent judiciary will interpret and apply the laws that govern us.
The role of the Ijudiciary is central to American concepts of justice and
the rule of law.
Felony Trial Court Judge in Detroit: "All this stuff about jury trials and
due process,
what it really amounts to is crooks getting not-guilty
2
verdicts."
Professor of Law, Touro Law School; J.D. Harvard Law School, 1972.
1. MODEL CODE OF JUDICIAL CONDUCT pmbl. (5th ed. 2000). The initial set of ethical
standards governing judges were the Canons of Judicial Ethics, but almost fifty years after the
Canons were first adopted, the House of Delegates of the ABA enacted the Code of Judicial
Conduct in 1972. The ABA Standing Committee on Ethics and Professional Responsibility
determined in 1986 that a comprehensive review of the Code was appropriate. Four years later, the
Model Code of Judicial Conduct was adopted; it was amended in 1997, 1999, and 2003. See id. At
the August 2003 meeting of the ABA House of Delegates, amendments were adopted to the Model
Code of Judicial Conduct designed to address First Amendment challenges to restrictions on speech
during judicial campaigns. See American Judicature Society, Amendments to ABA Model Code
Adopted, WKLY. JUDICIAL ETHICs NEws, Aug. 20, 2003. As of 2004, there is an ABA Joint
Commission on Evaluation of the Model Code of Judicial Conduct examining possible
improvements in the Code. See Patricia Manson, ABA Contemplates Reworking Rules of
ProfessionalConductfor Judges, CHI. DAILY L. BULL., Sept. 26, 2003, at 3. The ABA President,
Dennis Archer, explained the need for such a commission: "It has been 12 years since the ABA took
a good, hard look at the Code to see if it provides adequate guidance to judges about their conduct,
and to the public about what to expect from judges." Id. The Joint Commission held its first hearing
in December of 2003, and has scheduled hearings for 2004 at various locations throughout the
country.
2. Comments of Detroit, Michigan Recorder Court Judge Leonard Townsend as reported in
Andy Court, Special Report: Poorman's Justice, AM. LAW., Jan./Feb. 1993, at 56. The Recorder's
Court is the trial court for all felony offenses in Detroit and other parts of Wayne County, Michigan.
The judge added: "I'm not talking about cases where it's arguable. I'm talking about cases where
you have a guilty person walking out the door [because of a misguided jury verdict]. It happens
quite a lot." Id.
*
HOFSTRA LA W REVIEW
[Vol. 32:1349
The Court [a Justice of the New York State Supreme Court]: "Now the
offer in this case, Mr. Barry,for today3 only is three to six which he [the
defendant] is not obligated to accept."
A Juvenile Court judge in Georgia: "I tell the minor, I will up the
sentence if you take it 'to trial, because you could have pleaded and
saved us all this trouble. A
Report of the New York State Special Commission on Attica: "What
makes inmates most cynical about their pre-prison experience is the
plea bargaining system.... [A]lmost 90% of the inmates surveyed had
been solicited to enter a plea bargain. Most were bitter.. .. "5
It is, perhaps, in the criminal courts of our largest cities where
judges most commonly fail to comply with the professional and ethical
mandates that they are required to uphold. In the New York State
Supreme Court case cited above,6 the judge made it clear that if the
defendant were to refuse the "for today only" plea offer and choose
instead to go to trial, he would, if convicted, be sentenced to the
maximum prison time the law permitted. 7 The defendant responded to
3. Official Court Transcript at 4, People v. Derrick Smith (N.Y. Sup. Ct. 1998) (Indictment
No. 7996-98) (emphasis added) [hereinafter Official Court Transcript].
4.
ABA JUVENILE JUSTICE CENTER & THE SOUTHERN CENTER FOR HUMAN RIGHTS ET AL.,
GEORGIA: AN ASSESSMENT OF ACCESS TO COUNSEL AND QUALITY OF REPRESENTATION IN
DELINQUENCY PROCEEDINGS 31 (Patricia Puritz & Tammy Sun eds., 2001) (emphasis added)
[hereinafter GEORGIA: AN ASSESSMENT]. This 2001 examination of the juvenile justice system in
Georgia found that pleas are frequently taken by the Court without any input or even presence of
counsel and without any colloquy to determine if the child even understood his rights.
5.
REPORT OF THE NEW YORK STATE SPECIAL COMMISSION ON ATTICA 30-31 (1972)
(emphasis added). The Commission was empanelled to examine the causes of the inmate rioting at
Attica State Prison in 1971. See id. at xxiii.
6. See Official Court Transcript, supra note 3, at 4.
7. Telephone Interview with Frank Bari, defendant's attorney (Sept. 10, 2003). As is true
with much of the plea bargaining that occurs in our criminal courts, the transcript itself does not
reflect the entire proceeding because the plea "discussion" and details are, as here, "off the record".
See Official Court Transcript, supra note 3, at 3 (indicating that a "[d]iscussion off the record"
occurred as evidenced by the statement "The Court: On the record, Joyce," which followed. Joyce
was the first name of the Court Reporter.). Most plea discussions where the judge is involved occur
at the judge's bench and are rarely transcribed by a court reporter. For example, an analysis of plea
bargaining in the criminal courts of North Carolina revealed that in almost 85% of the cases, the
reporter rarely or never records what is discussed when the judge had initiated or even participated
in plea discussions. Norman Lefstein, Plea Bargaining and the Trial Judge, the New ABA
Standards, and the Need to Control Judicial Discretion, 59 N.C. L. REv. 477, 504 tbl.IV (1981).
The 1986 second edition of the ABA Standards for Criminal Justice had required all plea bargain
discussions that involved the judge to be transcribed verbatim in order to avoid the possibility of
judicial coercion of the defendant. ABA STANDARDS FOR CRIMINAL JUSTICE, PLEAS OF GUILTY,
2004]
DUE PROCESSDENIED
the judge: "I'm 19 years old, your Honor ....
That is terrible. ... That's
terrible." 8 The defendant turned and told his mother, who was weeping
as she sat in the courtroom, 9 "Mom, I can't do it" and 0jumped to his
death out of the window of the sixteenth floor courtroom.'
The Smith case stands out, and was the object of press coverage, not
because of the coercive tactics of the judge that were designed to achieve
a plea," but because of the defendant's subsequent suicide. The "for
today only," "this is a one-time-offer," "if you don't plead guilty you'll
get the max if convicted at trial" style-of-judging is all too common to
warrant tabloid headlines. 12 There was no media coverage at all when
another New York State Supreme Court judge allegedly told the
defendant's counsel: "Tell the defendant that if he doesn't take the 15
years to Life, I promise if he is found guilty after trial, I will give him 25
to Life for the murder and 12-V2 to 25 for the attempted murder, running
consecutive."' 3 Over the years, a pattern has emerged where judges
Standard 14-3.3 (2d ed. 1986). The current edition of the ABA Standards For Criminal Justice,
Pleas of Guilty severely limits judicial participation in the plea bargaining process. See ABA
STANDARDS FOR CRIMINAL JUSTICE, PLEAS OF GUILTY, Standard 14-3.3(c) (3d ed. 1999)
[hereinafter PLEAS OF GUILTY]; see also State v. Faulk, 840 So. 2d 319, 320 (Fla. 2003) (trial court
conducted unauthorized plea discussions off the record); State v. Williams, 666 N.W.2d 58, 60, 65
(Wis. 2003) (prohibiting the judge from playing any role in the plea bargaining process and
allowing the defendant to withdraw a plea resulting from the trial judge's invitation to the
defendant, his counsel, and the prosecutor to "have a little chat in chambers"). The off-the-record,
secretive plea negotiating in many instances violates the requirement set out by the Supreme Court
that if the plea "was induced by promises, the essence of those promises must in some way be
known." Santobello v. New York, 404 U.S. 257, 261-62 (1971). The threats that are used to
"persuade" the defendant to enter the plea should be part of the record as well.
8. Official Court Transcript, supra note 3, at 4; see also Laura Italiano & Larry Celona,
Horror Suicide at Courthouse; Mom Sees Suspect's 16-Story Death Leap, N.Y. POST, Oct. 30,
1998, at 5.
9. See Italiano & Celona, supra note 8.
10. David Rohde, Prisoner Leapt to Death Despite Pleafor Suicide Watch, N.Y. TIMES, Oct.
31, 1998, at B2.
1I. The D.C. Circuit Court of Appeals has explained what is meant by "coercive" in this
context: "To say that a practice is 'coercive' or renders a plea 'involuntary' means only that it
creates improper pressure that would be likely to overbear the will of some innocent persons and
cause them to plead guilty." United States v. Pollard, 959 F.2d 1011, 1021 (D.C. Cir. 1992), cert.
denied, 506 U.S. 915 (1992).
12. For example, in a 2003 Florida case, the judge told the defendant that "the court made an
offer to your attorney to resolve this case ....
You reject the offer it's not going to be made again.
I'm not going to make the offer again." Faulk, 240 So. 2d at 320 (emphasis added).
13. People v. Lewis, 630 N.Y.S.2d 605, 607 (N.Y. Sup. Ct. 1995) (emphasis added). The
defendant alleged in a series of motions that the judge had made the quoted comment. See id Even
though there apparently is no transcript of the judge's promise (the promise was allegedly made
while counsel was at the judge's bench and therefore off the record), the defendant's allegation, as
discussed by the appellate court reviewing the matter, does not appear to have been challenged
HOFSTRA LAW REVIEW
[Vol. 32:1349
routinely engage in practices that violate the constitutional rights of the
defendants who come before them, and which run counter to the ethical
conduct that we have a right to expect and demand from those
empowered to engage in critical decisions concerning the liberty of our
citizens. 14
Consider for example the actions of the judge in the case of People
v. Jorge Delgado.15 The attorney, employed by the Legal Aid Society of
the City of New York, was outside of the courtroom discussing a matter
with a client, when the Delgado case, which was also assigned to her,
was called and ready to be heard in the courtroom. 16 Upon her return to
the court, counsel and defendant were informed of a plea offer, and the
judge told the attorney and her client: "Come on. Let's go. ''17 Counsel
responded that she was speaking with her client about the plea offer and
when the judge told her "Time up. Does he want the offer or not?" 18 the
attorney responded: "No, Your Honor. Since I don't have the time to
finish completing my discussion with my client, he doesn't want to take
the offer today." 19 The judge then proceeded to tell the attorney to "leave
either by the judge, the defense counsel or the prosecution. See id.See also United States v.
Coronado, 554 F.2d 166, 172 (5th Cir. 1977), cert. denied 434 U.S. 870 (1977) ("Even a plea taking
session should have more dignity than a bargain basement sale at a department store.").
14. See, e.g., PLEAS OF GUILTY, supra note 7, Standard 14-1.8.
The court [shall] not impose upon a defendant any sentence in excess of that which
would be justified by any of the protective, deterrent, or other purposes of the criminal
law because the defendant has chosen to require the prosecution to prove guilt at trial
ratherthan to enter a plea of guilty or nolo contendere."
Id. (emphasis added). Imposing a prison sentence, which is longer than justified by the
circumstances simply because the defendant chose not to plead guilty, "is forbidden by Standard 141.8(b)" because it would create the perception that courts penalize defendants for exercising their
constitutional right to a jury trial. Id. at Standard 14-1.8 cmt.; see also NAT'L ADVISORY COMM'N
ON CRIMINAL JUSTICE STANDARDS & GOALS, COURTS, Standard 3.1 (1973) (instructing courts,
when determining the sentence to be imposed, not to consider whether the defendant pled guilty).
15. There is no reported decision in this case which was prosecuted in the Criminal Court of
the City of New York, New York County in September, 1999. See Recant (N.Y. Comm'n on
Judicial Conduct, Nov. 19, 2001), available at http://www.scjc.state.ny.us/Determinations/
R/Recant.htm.
16. See id.
17. Id.
18. Id. (emphasis added). See United States v. Coronado, 554 F.2d 166, 172 (5th Cir. 1977)
(plea bargaining should be "unhurried and patient"), cert. denied,434 U.S. 870 (1977).
19. Recant. An empirical study of 250 inmates in Alaska focused on the inmates' reactions to
their most recent defense attorneys. A common inmate complaint was that their counsel had not
stood up for them to enforce their rights, was too anxious to make a deal, and that the attorney,
rather than working for them, worked for the state. Marcus T. Boccaccini & Stanley L. Brodsky,
Characteristicsof the Ideal Criminal Defense Attorney from the Client's Perspective. Empirical
Findings and Implications for Legal Practice,25 LAW & PSYCHOL. REV. 81, 98 (2001). In other
words, exactly what Judge Recant attempted to get this counsel to do in Delgado.
2004]
DUE PROCESS DENIED
the courtroom as soon as we are done with this. Don't come back., 20 The
judge then vacated the attorney's assignment to the case and assigned a
court-appointed counsel in her place. 2' Apparently, the judge only
wished to have appearing before her "cooperative lawyers, 22 who
understood that the business taking place in the courtroom was to
dispose of cases.2 3 Any concern for the rights of defendants would
unnecessarily waste the court's time.24 It was clearly of no import to the
judge that counsel comply with her obligation as "an officer of the
court" to "render effective, quality representation., 25 There was no
20. Recant A judge's anger at counsel can sometimes lead the judge to strike at the easier
target-the lawyer's client. For example, a California judge told the Deputy District Attorney that
he was going to teach counsel a lesson for seeking a jury trial; to wit, that counsel's client, who had
been offered no jail time if he were to have plead guilty, would be sentenced to jail. Richard Ryan v.
Commission on Judicial Performance, 754 P.2d 724, 732 (1988). The defendant was convicted, and
imprisoned. See id
21. See Recant. In New York City, the general policy is to have the Legal Aid Society
assigned to represent indigents accused of crime and to use appointed private counsel to appear
when there are co-defendants and a risk of a conflict of interest among the defendants.
22. Justice Brennan commented that "[t]o satisfy the Constitution, counsel must function as
an advocate for the defendant, as opposed to afriend of the court." Jones v. Barnes, 463 U.S. 745,
758 (1983) (Brennan, J., dissenting) (citing Anders v. California, 386 U.S. 738, 744 (1967))
(emphasis added).
23. Cf Recant (finding that the judge "mistreated both defendants and attorneys, abused her
judicial powers, and ignored proper legal procedure"). The situation that exists in American courts
is disturbingly similar to that which occurs in courts in Toronto, Canada except that the plea deal in
Toronto is always worked out between the defendant and the prosecutor, not the judge. The
following is a description of the Toronto criminal court scene:
[T]he daily justice bazaar is in full swing .... Behind closed doors, lawyers haggle over
where in the punishment range the sentence will fall. . .. It's usually over in a flash....
Plea bargaining is the key tool to deal with the more than 100,000 charges that move
through Toronto's provincial courts each year.
Donovan Vincent & Nick Pron, Closed Doors: Justice by Plea Bargain, TORONTO STAR, Mar. 10,
2001.
24. See, e.g., GEORGIA: AN ASSESSMENT, supra note 4, at 2 (indicating that judges viewed
counsel as standing in the way of the courts accomplishing their goals, resulting in counsel's having
a severely diminished role).
25. ABA STANDARDS FOR CRIMINAL JUSTICE PROSECUTION FUNCTION AND DEFENSE
FUNCTION Standard 4-1.2(b) (3d ed. 1993) [hereinafter PROSECUTION FUNCTION AND DEFENSE
FUNCTION] (stating that the "basic duty defense counsel owes to the administration of justice and as
an officer of the court is to serve as the accused's counselor and advocate with courage and devotion
and the render effective, quality representation"). In 1967, the ABA was the first organization to
enact standards relating to criminal defense services by adopting the ABA Standards for Criminal
Justice, Providing Defense Services, and then followed by adopting the Defense Function in 1971,
and the ABA Guidelines For Appointment and Performance of Counsel In Criminal Cases in 1989.
Other institutions have enacted standards relating to criminal justice issues as well: The National
Legal Aid and Defender Association adopted Performance Guidelines For Criminal Defense
Representation in 1994; the National Study Commission on Defense Services presented the
Guidelines for Legal Defense Systems in the United States in 1976, and the President's National
HOFSTRA LA W RE VIEW
[Vol. 32:1349
indication that the judge felt any need to comply with the holding of the
court in United States ex rel. Elksnis v. Gilligan26 that due process is
violated if the plea does not represent "the considered choice of the
accused., 27 There was no adherence to the all-too-clear statement of one
state's supreme court when considering disciplinary action against a
judge: "'Common courtesy and considerate treatment of [others] are
traits properly expected of judges. Court proceedings and all other
' 28
judicial acts must be conducted with fitting dignity and decorum.'
There was absolutely no attention given to the instruction in the ABA
Criminal Justice Standards on Discovery 29 that there should exist
discovery procedures that provide a defendant with "sufficient
information to make an informed plea" 30 because the "informed plea is
crucial to the integrity of the criminal justice system.",31 The Supreme
Court explained the requirement:
[T]he defendant and his counsel must make their best judgment as to
the weight of the State's case. Counsel must predict how the facts, as
he understands them, would be viewed by a court. If proved, would
those facts convince a judge or jury of the defendant's guilt? On those
facts would evidence seized without a warrant be admissible? Would
the trier of fact on those facts find a confession voluntary and
admissible? Questions like these cannot be answered with certitude;
yet a decision
to plead guilty must necessarily rest upon counsel's
32
answers.
Advisory Commission on Criminal Justice Standards and Goals adopted Chapter 13, The Defense,
in 1973. See ABA, THE TEN PRINCIPLES OF A PUBLIC DEFENSE DELIVERY SYSTEM 4 n.2 (2002).
26. United States ex rel. Elksnis v. Gilligan, 256 F. Supp. 244 (S.D.N.Y. 1966).
27. Id. at 253 (emphasis added).
28. In re Perry, 641 So. 2d 366, 369 (Fla. 1994) (quoting In re Turner, 421 So. 2d 1077, 1081
(Fla. 1982)).
29. ABA STANDARDS FOR CRIMINAL JUSTICE DISCOVERY AND TRIAL BY JURY (3d ed. 1996)
[hereinafter DISCOVERY].
30. Id. at Standard 1l-l.l(a)(ii). There is considerably less information provided to one's
adversary as a matter of course in criminal proceedings than in civil. If the defense counsel does not
subpoena or file motions seeking discoverable material he will not obtain information which might
prove to be vital for the defense of his client. Even when the defense is self-defense, the prosecution
is not obligated to provide the defendant with the arrest record of the victim unless specifically
requested by defense counsel to do so. United States v. Agurs, 427 U.S. 97, 110 n.17 (1976),
modified by United States v. Bagley, 473 U.S. 667, 681 (1985) (finding that the Court's prior
formulation of Agurs, as applied in Strickland v. Washington, 466 U.S. 668 (1984), covers situations
where the defendant's attorney either specifically requested, or failed to specifically request, certain
information from the prosecution).
31. DISCOVERY, supranote 29, at Standard 11-1.1 (a)(ii) cmt.
32. McMann v. Richardson, 397 U.S. 759, 769-70 (1970).
2004]
DUE PROCESS DENIED
And judges may well believe that in order for defendants in future
cases to know that the judge indeed means business when he or she
threatens "the max, 33 the judge must make it crystal clear at sentencing
time:
If you'd have come in here, as you should have done in the first
instance, to save the State the trouble of calling a jury, I would
probably have sentenced you, as I indicated to you I would have
sentenced you, to one to life in the penitentiary. It will cost you nine
years additional,
because the sentence now is ten to life in the
34
penitentiary.
One might well expect that there would be a successful appeal of a
sentence such as this, based on the claim that the sentence was excessive
in that the judge's initial assessment of the appropriate punishment was
one-tenth of the sentence imposed, but appeals courts know how the
game has to be played to get the desired result of the pre-trial plea of
guilty. In State v. Pennington,35 the New Jersey Supreme Court
established an absolute rule that "public policy.., prohibits [the] use of
rejected plea offers" in determining whether the ultimate sentence of the
trial judge was excessive in relation to the offense committed.3 6 Exactly
what is the "public policy"? That a defendant must know that the trial
judge will indeed punish the defendant for the exercise of his
constitutional right to trial? The court stated pretty much exactly that.
The court explained that to permit the defendant to compare the judge's
pre-trial plea offer with the post-trial sentence "would unfairly
undermine plea negotiations, an essential tool in the administration of
criminal justice. '37 Certainly a decision such as this from the state's
highest court can function to encourage judges not only to engage in the
33. If the judge's reputation for sentencing a convicted defendant to the maximum amount
permissible becomes well enough known, the judge might not in every case need to articulate the
threat. A defendant told by the judge what the sentence would be were he to plead guilty, would
know what would await him were he to choose instead to go to trial.
34. People v. Moriarty, 185 N.E.2d 688, 689 (II1. 1962) (emphasis added); see also People v.
Young, 314 N.E. 2d 280, 281 (111.
App. Ct. 1974) ("I have no inclination to give you the same thing
had you chose to throw yourself on the mercy of the Court. I will add one year." (internal quotation
marks omitted)).
35. 712A.2d 1133(N.J. 1998).
36. Id.at 1142.
37. Id. The sole dissenter wrote that the court had "unnecessarily and improperly imposed a
blanket restriction against any consideration of plea offers by appellate courts in reviewing
excessive-sentence challenges. Id. at 1144 (Stein, J., dissenting).
HOFSTRA LAW RE VIEW
[Vol. 32:1349
threat of a maximum sentence if the defendant38does not plead guilty, but
also to feel free to actually carry out the threat.
Further support for the principle that however disparate the posttrial sentence is from that which was offered pre-trial, the excessiveness
of the sentence imposed after the trial should not be measured by that
which was offered pre-trial, comes from those courts applying contract
theory to the plea bargaining context. 39 The New Jersey Supreme Court
determined that "consistent with contract principles.., a rejected plea
should have no impact on sentencing following a trial., 40 In ruling that
the rejection by the defendant of the sentence-deemed-appropriate
during plea negotiations voids that offer "for all purposes," the court
made it clear that the sentence imposed after trial can be many times
greater than that offered earlier.4 1
To apply contract theory to a situation where an all-powerful judge
is negotiating with a powerless defendant about how long the judge will
send the defendant to prison for is inappropriate.42 The process of
negotiation generally implies and assumes relatively comparable
positions of power on each side. The Commentary to the Restatement
(Second) of Contracts43 defines "undue influence" in a way that is
certainly applicable to judicially-initiated plea bargaining: "Undue
influence is unfair persuasion of a party who is under the domination of
the person exercising the persuasion or who by virtue of the relation
38. Just days before the trial began, the offer to the defendant was a prison term of fifteen
years with no parole possible until seven and a half years were served. State v. Pennington, 693
A.2d 1222, 1225 (N.J. Super Ct. App. Div. 1997), rev'd, State v. Pennington, 712 A.2d 1133 (N.J.
1998). After trial, the sentence was life plus twenty years with no parole possible until the defendant
was incarcerated for at least thirty-five years. See id.The Appellate Division of the Superior Court
of New Jersey had determined that the "extreme disparity" between the pre-trial offer and the
sentence actually imposed was a factor to be considered when evaluating the ultimate
reasonableness of the post-trial sentence. See id.
39. See, e.g., Petition of Geisser, 554 F.2d 698, 704 (5th Cir. 1977) ("a plea bargain is
contractual in nature"). See generally Peter Westen & David Westin, A Constitutional Law of
Remedies or Broken Plea Bargains, 66 CAL. L. REV. 471 (1978) (suggesting that the contract law
provides the most appropriate remedies for breached plea agreements).
40. Pennington, 712 A.2d at 1142.
41. Id.at 1147.
42. See People v. Selikoff, 318 N.E.2d 784, 791-92 (N.Y.1974) (Itis incongruous to apply
contract law to plea negotiations; public policies favoring rehabilitation, protection of society, and
might derive from permitting defendants to enter into
deterrence are "paramount to benefits" that
plea contracts.).
43. RESTATEMENT (SECOND) OF CONTRACTS (1981).
DUE PROCESS DENIED
2004]
between them is justified in assuming' 4 that that person
manner inconsistent with his welfare.
Perhaps the defendant in State v. Williams,4 5 who
plea with the judge in the judge's chambers, best
regarding undue influence as he was later attempting
plea:
will not act in a
"negotiated" his
made the point
to withdraw his
I had no intentions of pleading guilty, but ... you invited me into
[your] chambers, you influenced me and pressured me into giving a
guilty plea....
Your Honor, since I originally turned down a plea bargain in the
hallway, I can honestly say if you wouldn't have taken me in your
chambers, I wouldn't have never pled guilty. Myself being in a
powerful judge's
chambers, you eroded my ability to make a decision
46
of my own.
The bringing of a defendant into the judge's chambers is truly
bringing the "full force and majesty of [the] office ' 4 7 of the judge home
to the defendant. Most defendants, however, don't need to be taken into
chambers to be aware of the "awesome power ' 48 of the judge. The judge
sitting on high in his robes is symbolism enough.49
44. Id. at § 177(1); N. Am. Rayon Corp. v. Comm'r of Internal Revenue, 12 F.3d 583, 589
(6th Cir. 1993) (applying New York law, which defines undue influence as "exist[ing] where a
relationship of control exists between the contracting parties, and the stronger party influences the
weaker party in a way that destroys the weaker party's free will and substitutes for it the will of the
stronger party"); see also RESTATEMENT, supra note 43, at § 175 cmt., quoted in United States v.
Speed Joyeros, S.A., 204 F. Supp. 2d 412, 425 (E.D.N.Y. 2002) (explaining that the implict threat
contained in the offer made by the prosecutor could "arouse such fear as precludes a party from
exercising free will and judgment or that it [is] such as would induce assent on the part of a brave
man or a man of ordinary firmness").
45. 666 N.W.2d 58 (Wis. 2003).
46. Id. at 62 (alteration in original). The "susceptibility of the person persuaded" is to be taken
into account when assessing whether of not there has been "undue influence." RESTATEMENT
(SECOND) OF CONTRACTS § 177 cmt. b (1981).
47. United States ex rel. Elksnis v. Gilligan, 256 F. Supp. 244, 254 (S.D.N.Y. 1966).
48. Id.
49. See id. Not all defendants (or counsel for that matter) would have the same view of the
robes that former Supreme Court Chief Justice Arthur Vanderbilt had: "The wearing of a judicial
robe by a judge is important in part because it reminds all concerned of the fact that the judge
represents the law on which liberty depends...." Hon. Arthur T. Vanderbilt, The Municipal
Court-The Most Important Court in New Jersey: Its Remarkable Progress and Its Unsolved
Problems, 10 RUTGERS L. REv. 647, 653 (1956) (emphasis added). And some may feel the
following description by a former law professor to be somewhat extreme:
Glaring down from their elevated perches, insulting, abrupt, rude, sarcastic, patronizing,
intimidating, vindictive, insisting on not merely respect but almost abject servility-such
HOFSTRA LAW REVIEW
[Vol. 32:1349
To be sure, there is the appearance of arbitrariness when a judge
just throws a certain number of extra years at a defendant who chose to
go to trial rather than plead guilty. And it is this abuse of judicial
50
discretion that the Supreme Court warned of in Duncan v. Louisiana:
Providing an accused with the right to be tried by a jury of his peers
gave him an inestimable safeguard against the corrupt or overzealous
prosecutor and against the compliant, biased, or eccentric judge....
[T]he jury trial provisions in the Federal and State Constitutions reflect
a fundamental decision about the exercise of official power-a
reluctance to entrust plenary powers over the life and liberty of the
51
citizen to one judge ....
As to those judges who do act arbitrarily, the criminal justice
system would be far better off if they were not quite so crude about it all.
For example, the judge in People v. Young 52 explained to the defendant
why he was getting sentenced to a longer prison term after the trial:
"You shot the dice and they just came up craps. 53 In State v. Peterson,54
there was only a slight deviation from that language as the trial judge
explained to the defendant that he had "rolled the dice in a high stakes
game with the jury, and it's very apparent that [you] lost that gamble. 55
Somehow, exercising one's constitutional right to trial ought not be
analogized to a roll of the dice-the imposition of extra years of
incarceration is not quite comparable a penalty as is the dice "coming up
craps."
But for an extreme example of a judge acting arbitrarily, consider
the action of a veteran Long Island judge who had to determine the
appropriate sentence for the defendant who had pled guilty to driving
while impaired.56 The judge increased the sentence because the
defendant was wearing jeans, explaining that the fine "would be
judges are frequently encountered in American trial courts, particularly in the lowest
criminal and juvenile courts which account for most of our criminal business. Indeed, the
lower the court, the worse the behavior.
Herman Schwartz, Judges as Tyrants, 7 CRIM. L. BULL. 129, 129-30 (1971) (footnote omitted).
50. 391 U.S. 145 (1968).
51.
Id.at 156.
52.
53.
54.
314 N.E.2d 280 (Ill. 1974).
Id. at 281.
571 S.E.2d 883 (N.C. 2002).
55. Id. at 884. The Court of Appeals in North Carolina did find that a new sentencing hearing
was required because it was clear that the sentence after trial was, in part, punishment for the
defendant's choice to go to trial. See id. at 885.
56. See Chau Lam, Crime (and Denim) Doesn't Pay, NEWSDAY, Dec. 6, 2003, at A03.
DUE PROCESS DENIED
2004]
normally 300 [dollars], but it will be 350 [dollars] because he's got a
pair of jeans on.",57 But lest anyone think that the defendant was being
punished for wearing jeans, the judge clarified that the extra fine wasn't
punishment, the defendant just would have gotten a break if he hadn't
been wearing the jeans.5 8 The judge didn't elaborate on what other forms
of appearance-overweight,
dreadlocked, tatooed-might
also
disqualify a defendant from lenient treatment, but did add that "[i]f you
show the law respect, the law will show respect back to you. ' 59
In People v. Dennis, 60 the pretrial offer was two-to-six years
imprisonment, while the sentence after trial was forty-to-eighty,61 even
though the judge clearly did know at the time of the plea offer the
strength of the prosecutor's case and the defendant's prior criminal
history. 62 Whereas the forty-to-eighty term was certainly arbitrary, so
was the sentence of the Illinois appellate court, which determined that
punishing the defendant for exercising his right to trial by increasing the
amount of incarceration twenty-fold was unconstitutional, but three-fold
was not. The sentence was reduced "in the interests of justice" to six-toeighteen years.63
The standard of what an acceptable punishment for choosing to go
to trial in Illinois was to be was measured after the Dennis case by
comparing post-conviction sentence increases to the twenty-timesgreater sentence imposed by the Dennis trial court. So, appellate review
in People v. Carroll64 did not find the sentence by the trial court in that
matter to be inappropriate because "the sentence imposed was only twoand-a-halftimes that which was offered to [the defendant] at the pre-trial
conference; clearly, this does not approach the excessive nature of the
sentence deemed an improper punishment in Dennis."65 If the
punishment is not twenty times greater for choosing to go to trial rather
than pleading guilty, then is it to be found acceptable? Is a sentence
which is only two-and-one-half times greater than that which was
offered pre-trial really appropriate? What about a sentence of eight years
imprisonment imposed after trial when the pre-trial offer in exchange for
57. Id.
58. See id
59.
60.
61.
Ed Lowe, Judge Gets a DressingDown, NEWSDAY, Dec. 12, 2003, at A8.
328 N.E.2d 135 (Il1. 1975).
Seeid. at138.
62. See id.
63. Id.
64.
65.
631 N.E.2d 1155 (Il. 1992).
Id. at 1175 (emphasis added).
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[Vol. 32:1349
a guilty plea was two years probation?66 Or, when the defendant was
given a sentence of
thirty years post-trial compared to the plea offer of
67
forty-two months?
As is true for all judges, whether assigned to criminal or civil court,
the American Bar Association Model Code of Judicial Conduct 68 is
69
"intended to govern conduct of judges and to be binding upon them.,
A pervasive theme of the Model Code of Judicial Conduct is the import
of the judiciary acting honorably and with integrity 7 so that the public
will have confidence in its judges. 71 The very first paragraph of the
72
Preamble, for example, describes judicial office as a "public trust
where the judge is a "highly visible symbol of government., 73 The
Commentary to the very first Canon of the Code warns that "violation of
this Code diminishes public confidence in the judiciary and thereby does
66. See People v. Peddicord, 407 N.E.2d 89, 93 (II1. 1980). The appeals court upheld the
sentence, rejecting the defendant's claim that the post-trial sentence constituted punishment for
choosing to go to trial. The court used Dennis once again as the standard, concluding that "[i]n the
present case the 8-year sentence imposed is not as grossly disparate as that found in Dennis." Id. at
94.
67. See McDonald v. State, 751 So. 2d 56, 58 (Fla. 1999). The Court of Appeals of Florida
did conclude that the sentence was vindictive and remanded the case with directions to resentence
the defendant to a term of forty-eight months. See id. at 59-60.
68. MODEL CODE OF JUDICIAL CONDUCT, supra note 1. The Model Code forms the basis for
the state-adopted codes of judicial conduct in every state but Montana whose rules of conduct for
the judiciary are not based on the Model Code. See Cynthia Gray, The Line Between Legal Error
and Judicial Misconduct: Balancing Judicial Independence and Accountability, 32 HOFSTRA L.
REV. 1245 (2004). The current Code, designed to replace the 1972 Code, was adopted by the ABA
House of Delegates in August of 1990.
69. MODEL CODE OF JUDICIAL CONDUCT, supra note 1, pmbl. The Commentary to Canon I
informs that judges "must comply with the law, including the provisions of this Code." Id. at Canon
I cmt. (emphasis added).
70. In 2003, the Model Code of Judicial Conduct's Canon 1 Commentary was amended to
explain what was meant by "integrity": "A judiciary of integrity is one in which judges are known
for their probity, fairness, honesty, uprightness, and soundness of character." Id. (Any resemblance
to the Boy Scout Pledge, is, I'm sure, completely unintended.)
71. See id. It would be difficult to imagine the public being confident in the judiciary that
presides over prosecutions of juveniles in Virginia. An ABA Juvenile Justice Center investigative
analysis of the courts concluded:
Nothing appeared more "second rate" than watching the countless families endure the
humiliating process of going through juvenile court.... Families sat on benches and the
clerk called them into court over a loudspeaker system. Several investigators repeatedly
noted the rude and often cutting manner in which juvenile court personnel, including
judges, spoke to children and their families.
ABA JUVENILE JUSTICE CENTER & THE MID-ATLANTIC JUVENILE DEFENDER CENTER ET AL.,
VIRGINIA: AN ASSESSMENT OF ACCESS TO COUNSEL AND QUALITY OF REPRESENTATION IN
DELINQUENCY PROCEEDINGS 31-32 (Patricia Puritz et al. eds., 2002) (emphasis added).
72.
MODEL CODE OF JUDICIAL CONDUCT, supra note 1, pmnbl.
73. Id.
2004]
DUE PROCESS DENIED
injury to the system of government under law."74 The first sentence of
Canon 2 reiterates that judges '.'shall act at all times in a manner that
promotes public confidence in the integrity of the judiciary. '75 The
Commentary to that Canon warns judges
that they "must expect to be the
76
subject of constantpublic scrutiny.,
There is, perhaps, no part of our justice system that is as visible to
the public as are the criminal courts. It is, therefore, of paramount
importance that the judges, who sit in criminal cases, comply with the
mandate to act honorably, fairly77 and with integrity.78 And since the
vast majority of the criminal prosecutions that occur throughout the
country result in pleas of guilty, 79 the conduct of the judiciary in
relationship to plea bargaining is of crucial import.8 °
Recognizing the need to identify ethical standards relating to plea
bargaining for defense counsel, prosecutors, and judges, the ABA
adopted Standards for Criminal Justice,81 Chapter 14-Pleas of Guilty.8 2
The most recent edition deleted previous provisions, which had
established procedures for judicial participation in plea bargaining,8 3 and
74. Id. Canon I cmt. (emphasis added). The Canon itself describes an "honorablejudiciary"
as "indispensable to justice in our society." Id. Canon I (emphasis added).
75. Id. Canon 2 (emphasis added).
76. Id. Canon 2 cmt. (emphasis added).
77. See, e.g., id. Canon 3(B)(8): "A judge shall dispose of all judicial matters promptly,
efficiently and fairly." (emphasis added). The 2003 amended Commentary to Model Code Canon I
designates "fairness" as an integral part of acting with "integrity". See id. Canon I cmt.
78. See id. at Canon 2.
79.
See CAROLINE WOLF HARLOW, U.S. DEP'T OF JUSTICE, SPECIAL REPORT DEFENSE
COUNSEL IN CRIMINAL CASES 6 1.10 (2000) (indicating over 75% of all criminal cases result in
convictions, and approximately 71% of all convictions in 1996 were the result of defendants
entering guilty pleas).
80. The active participation of the judiciary in the plea bargaining process may not be
common knowledge. Black's Law Dictionaryprovides an example of the popular understanding of
what constitutes a plea bargain: "A negotiated agreement between a prosecutor and a criminal
defendant whereby the defendant pleads guilty to a lesser offense or to one of multiple charges in
exchange for some concession by the prosecutor, usu[ally] a more lenient sentence or a dismissal of
the other charges." BLACK'S LAW DICTIONARY 1173 (7th ed. 1999) (emphasis added).
81. The initial seventeen volumes of the ABA's Standards for Criminal Justice were issued in
1968 and were described by the then-Chief Justice of the United States Supreme Court Warren
Burger as "'the single most comprehensive and probably the most monumental undertaking in the
field of criminal justice ever attempted by the American legal profession in our national history."'
ABA NETWORK, CRIMINAL JUSTICE SECTION STANDARDS (1999). There is a nine-member
Standards Committee responsible for updating the existing standards as well as creating new
volumes relating to issues not previously covered. See id.
82.
See STANDARDS FOR CRIMINAL JUSTICE, CHAPTER 14 - PLEAS OF GUILTY (2d ed. 1986).
83. Prior to 1999, the prosecutor and defense counsel, when unable to reach a plea bargain,
could request a meeting with the judge, and if the judge agreed to meet with counsel, the judge was
HOFSTRA LAW REVIEW
[Vol. 32:1349
instead, added a new section providing that "[a] judge should not
ordinarily participate in plea negotiation discussions among the
parties., 84 To emphasize the importance of the requirement of judicial
detachment, there is a separate mandate: "A judge should not through
word or demeanor, either directly or indirectly, communicate to the
defendant or defense counsel that a plea agreement should be accepted
or that a guilty plea should be entered., 85 The Commentary to the
Standards is explicit: "These standards reflect the view that direct
judicial involvement in plea discussions
with the parties tends to be
86
allowed.,
be
not
should
and
coercive
Coercive indeed. Take the case of New York Supreme Court Judge
Harold Rothwax, who rather than adjourning the case of one of two codefendants who had no counsel in a burglary case, appointed an attorney
from those who were waiting in the courtroom for other matters to be
called. 87 As soon as the newly-appointed counsel approached the judge's
bench, the judge informed the counsel that the offer in the case, in
exchange for a plea, was a sentence of a minimum prison term of two
years and a maximum of four.88 In a variation of the "for today only"
warning discussed previously, 89 Judge Rothwax had a gradation of
threats: Only for that day was the offer of two-to-four to be valid,
"[a]fler today, it's 3 to 6.''90 But the judge, hardly adhering to the calm
deliberation expected of the judiciary, or to the required presumption of
innocence, 91 then added "after that, it's 4 to 8. "92 And, as if the point was
to act only as "moderator" in order to avoid the coercion that may be seen as accompanying any
judicial involvement. See id
84. PLEAS OF GUILTY, supra note 7, at Standard 14-3.3(d) (emphasis added). This was a
return to the position of the first edition of the ABA Pleas of Guilty Standards that had admonished
the judge not to participate in any way in plea discussions.
85. Id. at Standard 14-3.3(c) (emphasis added).
86. Id. at Standard 14-3.3 cmt.
87. Sam Roberts, For One Zealous Judge, Hard Bargaining Pushes Cases Through the
Courts, N.Y. TIMES, Apr. 29, 1985, at BI.
88. See id
89. See supra note 7 and accompanying text.
90. Roberts, supra note 87 (internal quotation marks omitted); see also Bordenkircher v.
Hayes, 434 U.S. 357, 365 n.8 (1978) (expressing a concern that promises given by the prosecutor
can pose a "danger of inducing a false guilty plea by skewing the assessment of the risks a
defendant must consider"). Judicial promises are certainly much more likely than prosecutorial
promises to create such dangers.
91. The "presumption of innocence" is not a mere formality, but rather "express[es] vital
principles of our criminal jurisprudence and criminal procedure." State v. Hardy, 128 S.E. 152, 155
(N.C. 1925).
92. Roberts, supra note 87 (internal quotation marks omitted). The Supreme Court of Florida,
in considering possible disciplinary action against a judge, observed that judges should never be
DUE PROCESS DENIED
2004]
concluded: "If they're ever going to plead,
yet unmade, Judge Rothwax
93
today is the time to do it."
The United States Supreme Court has determined that even subtle
threats void a subsequent plea, 94 and Judge Rothwax was certainly not
making any attempts to be subtle. He, and many throughout the country
like him, 95 violated the ABA Standards instructing judges of their
responsibility in plea cases: "[T]he court should not accept the plea
where it appears the defendant has not had the effective assistance of
counsel. 96 The attorney in this case did not even have any opportunity
to discuss the matter with his client. The Commentary to the Standards
makes it clear that the judge's actions were in violation of ethical
requirements: "[Because] it is seldom possible to engage in effective
negotiations minutes before the defendant is called upon to plead ... a
reasonable interval should elapse between assignment of counsel and the
pleading stage.,
97
Judge Rothwax's actions also violated the Supreme Court mandate
of Chandler v. Warden Fretag98 that the defendant must be provided
with sufficient opportunity to consult with his attorney, "otherwise, the
right to be heard by counsel would be of little worth." 99 Furthermore, the
judge called upon the defendant's lawyer to violate the ABA Defense
Function l ° Standard instructing counsel that he must conduct a full
autocratic or abusive, and added that judges "'are not depositories of arbitrary power, but judges
under the sanction of law."' In re Perry, 641 So. 2d 366, 368-69 (Fla. 1994) (quoting In re Turner,
421 So. 2d 1077, 1081 (Fla. 1982)).
93. See Roberts, supra note 87 (internal quotation marks omitted). The judge was, of course,
aware that the just-appointed counsel had no time to have developed adequate knowledge of the
allegations against his client. The judge, nevertheless, pushed for a plea and violated the
requirement that a plea be entered only after counsel has had the opportunity to assess the facts of
the case which often entails interviewing witnesses. See State v. Draper, 762 P.2d 602, 604-05
(Ariz. Ct. App. 1988), vacated in part by 784 P.2d 259 (Ariz. 1989) (en banc) (holding that there are
times when a defendant may waive the right to question the victim in reaching a plea agreement).
94. Boykin v. Alabama, 395 U.S. 238, 242-43 (1969), superseded by FED. R. CRiM. P. 1l(c)
(West 1986 & Supp. 2004) (codifying the plea bargain admonishments stated in Boykin).
95. See, e.g., State v. Gaston, No. 8628, 2003 Ohio App. LEXIS 5181 (Ohio Ct. App. Oct. 30,
2003). The trial judge informed the defendant that if he didn't plead guilty and instead went to trial
that he'd be punished, thereby imparting a direct threat that constituted overt and overwhelming
pressure on the defendant to enter a guilty plea. See id. at * 13.
96. PLEAS OF GUILTY, supra note 7, at Standard 14-1.4(d).
97. Id. at Standard 14-1.3 cmt.
98. 348 U.S. 3 (1954).
99. Id. at 10.
100.
PROSECUTION FUNCTION AND DEFENSE FUNCTION, supra note 25, at Standard 4-4.1(a);
see also PLEAS OF GUILTY, supra note 7, at Standard 14-3.2(b) cmt. (defense counsel is required to
conduct an "appropriate investigation" of the case before the defendant enters any plea of guilty).
HOFSTRA LAW RE VIEW
[Vol. 32:1349
investigation and study of the case, including the controlling law' 0 1 and
evidence that is likely to be introduced at trial, before providing any
recommendation concerning a plea.10 2 Our adversary-based system of
justice assumes that each side will have the opportunity to uncover
evidence that's relevant not just as to the guilt or innocence of the
defendant, but to the determination of the appropriate sentence as well.
Prosecutors notoriously over-charge and may engage in "bluffing"; how
can defense counsel possibly call the bluff if there's no opportunity to
investigate the allegations?
Judge Rothwax's concern was simply complying with the
technicality that a living being with a Juris Doctor degree stand next to
the defendant in court.' 0 3 The presence of an attorney constituted, in the
court's eyes, a mere legal formality, a precondition for the court's efforts
to obtain the desired plea.1°4 The attempt was to co-opt the attorney, to
have the lawyer act as a mere assistant in the rapidly-moving assembly
line, and in doing so to redefine the role of counsel so that the whole
process would have the appearance of legitimacy. 0 5 But the very reason
101. See United States v. Loughery, 908 F.2d 1014, 1018-19 (D.C. Cir. 1990) (finding
ineffective assistance of counsel where counsel failed to become familiar with the applicable state
of the law, including recent court decisions that may have affected their clients' interests); Herring
v. Estelle, 491 F.2d 125, 128 (5th Cir. 1974) (counsel is obligated to know the elements and case
law applicable to the charges against his client and to communicate that information to his client);
State v. Whitmore, No. 20020471-CA, 2003 WL 22510937, at *[-*2 (Utah Ct. App. 2003)
(unpublished opinion) (counsel's error about the lack of a valid legal defense available to the
defendant constituted ineffective assistance).
102. See PROSECUTION FUNCTION AND DEFENSE FUNCTION, supra note 25, at Standard 46.1(b). In order for an attorney to provide effective counseling for his client he must provide the
defendant with an "'understanding of the law in relation to the facts."' Walker v. Caldwell, 476 F.2d
213, 218 (5th Cir. 1973) (quoting McCarthy v. United States, 394 U.S. 459, 466 (1969), superseded
by FED. R. CRIM. P. 1 (h) (West. 1986 & Supp. 2004)).
103. See United States v. Decoster, 624 F.2d 196, 219 (D.C. Cir. 1979) (MacKinnon, J.,
concurring) Judge MacKinnon reasoned that:
The Sixth Amendment ... guarantees more than the appointment of competent counsel.
By its terms, one has a right to "Assistance of Counsel [for] his defense." Assistance
begins with the appointment of counsel, it does not end there. In some cases the
performance of counsel may be so inadequate that, in effect, no assistance of counsel is
provided. Clearly, in such cases, the defendant's Sixth Amendment right to "have
Assistance of Counsel" is denied.
Id.
104. Whereas the general rule is that an individual cannot appeal a conviction obtained as a
result of a voluntarily entered plea of guilty, a plea which has been given without the effective
assistance of counsel may be successfully attacked in a post-conviction proceeding. See, e.g.,
Loughery, 908 F.2d at 1018-19 (failing to provide the defendant with effective assistance of counsel
was sufficient grounds for the withdrawal of the guilty plea).
105. A lawyer who complies with a judge's "request," such as the one at issue in the case
under examination, subjects himself to possible disciplinary proceedings. See, e.g., Holt v. Whelan,
2004]
DUE PROCESS DENIED
that counsel is required is to avoid just the type of perfunctory process
that this judge had created. 10 6 The requirement to provide an indigent
defendant with counsel is not met when the assignment occurs under
circumstances precluding counsel from providing effective assistance.
The very reason that the appointment of counsel for indigents is
mandatory whenever a conviction threatens the defendant with the loss
of liberty 10 7 is because the Court was concerned that, without such a
mandate, the heavy volume of cases "may create an obsession for speedy
dispositions, regardless of the fairness of the result.' 0 8 The Court further
explained that
[b]eyond the problem of trials and appeals, is that of the guilty plea, a
problem which looms large in misdemeanor as well as in felony cases.
Counsel is needed so that the accused may know precisely what he is
doing, so that he is fully aware of the prospect of going
to jail or
10 9
prison, and so that he is treated fairly by the prosecution.
The United States Supreme Court should have added "and by the judge."
When there is no actual assistance rendered by counsel, the
constitutional guarantee to counsel has clearly been violated. 10° In the
199 N.W.2d 195, 196 (Mich. 1972) (averring that the disciplinary action taken against the attorney
was a result of his inadequate analysis of "the failure of the trial court.., to observe the
constitutional, statutory and court rule requirements in taking a guilty plea").
106. See Argersinger v. Hamlin, 407 U.S. 25, 34 (1972).
107. See id. at 37-38. The first instance where the Supreme Court held that an indigent had a
fight to appointed counsel was in Powell v. Alabama. 287 U.S. 45, 71 (1932). The Court explained
that "[t]he right to be heard would be, in many cases, of little avail if it did not comprehend the fight
to be heard by counsel.... [The defendant] requires the guiding hand of counsel at every step in the
proceedings against him." Id. at 68-69. Powell's holding was limited, however, and only applied to
requiring the appointment of counsel for an indigent being tried for a capital offense. See id. at 71.
108. Argersinger,407 U.S. at 34.
109. Id. In Johnson v. Zerbst, the Court held that all indigents in federal court who were
charged with a felony had a Sixth Amendment right to counsel. 304 U.S. 458, 468 (1938). It was not
until Gideon v. Wainwright, however, that the Court applied the Due Process Clause of the
Fourteenth Amendment to felony prosecutions in state courts. 372 U.S. 335, 344 (1963). The Court
in Gideon explained that
in our adversary system of criminal justice, any person haled into court, who is too poor
to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. .... The
right of one charged with crime to counsel may not be deemed fundamental and essential
to fair trials in some countries, but it is in ours. From the very beginning, our state and
national constitutions and laws have laid great emphasis on procedural and substantive
safeguards designed to assure fair trials before impartial tribunals in which every
defendant stands equal before the law. This noble ideal cannot be realized if the poor man
charged with crime has to face his accusers without a lawyer to assist him.
Id. at 344.
110. The fight to the assistance of counsel is one of those few, basic constitutional rights that
have been held to be "so basic to a fair trial that their infraction can never be treated as harmless
HOFSTRA LA W REVIEW
[Vol. 32:1349
court case examined previously where the judge appointed counsel for
the defendant from the group of attorneys who were in the courtroom
and then exerted pressure for an immediate plea,"' the judge had made it
impossible for any attorney, however able, to have provided effective
112
assistance of counsel. Effective counsel are "necessities not luxuries,"'
and "the right to be represented by counsel is by far the most pervasive
for it affects [the defendant's] ability to assert any other rights he may
have."" 3 When the Court stated that counsel's "presence is essential,"" 4
the Court most certainly did not mean just a live body with a J.D. degree
standing next to the defendant as the judge bellowed "today, 2 to 4...
after today, it's 3 to 6 ... after that, it's 4 to 8.'' ..
The need for rapid processing of cases notwithstanding, there are
two qualities that are vital attributes of any distinguished judge: patience
and fairness. A jurist must be sufficiently patient with attorneys in order
to fully consider their arguments. Only then is it possible for the judge to
evaluate counsel's claims and adjudicate the issues fairly and properly.
The knowledge to determine what outcome would be most just can only
be obtained after there is careful examination of the merits of the
positions of each side. Such patience and fairness is all the more
necessary when an individual's liberty is at stake.
The judge's responsibility to ensure that the defendant's appointed
counsel does, in fact, effectively represent the defendant who wishes to
enter a guilty plea, is all the greater after the Supreme Court's decision
in Hill v. Lockhart. 1 6 The Court had, years earlier in Kercheval v.
United States, 17 held that in order for a guilty plea to be constitutionally
valid, the plea must be "made voluntarily after proper advice and with
full understanding of the consequences."" 8 The standard for assessing
error." See Chapman v. California, 386 U.S. 18, 23 (1967), overruled in part by Brecht v.
Abramson, 507 U.S. 619, 637-38 (1993). In general, an error committed by the trial court will be
deemed harmless and therefore not lead to a reversal of a conviction if it is determined that the error
did not contribute to the conviction. See Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963). But see
Holloway v. Arkansas, 435 U.S. 475, 487 (1978) (indicating that some courts consider the right to
counsel as being too fundamental to permit courts to engage in calculations to determine the amount
of prejudice that occurred due to its denial).
111.
112.
See Roberts, supra note 87; see also supra notes 87-93 and accompanying text.
Gideon, 372 U.S. at 344.
113.
United States v. Cronic, 466 U.S. 648, 653 (1984) (quoting Walter V. Schaefer,
Federalismand State CriminalProcedure,70 HARV. L. REV. 1, 8 (1956)).
114. Cronic, 466 U.S. at 653 (emphasis added).
115.
See supranotes 89-95 and accompanying text.
116.
117.
118.
474 U.S. 52, 59 (1985).
274 U.S. 220 (1927).
Id. at 223.
2004]
DUE PROCESS DENIED
1367
counsel's effectiveness when a plea of guilty was entered was set forth
in McMann v. Richardson. 19 The validity of the plea was to be
determined by examining whether the representation provided by
counsel was "within the range of competence demanded of attorneys in
criminal cases."' 120 However, the Court in Hill imposed the additional
requirement that the defendant on appeal must demonstrate that "there is
a reasonable probability that, [were it not for his attorney's] errors, he
would not have pleaded guilty and would have insisted on going to
trial''
Justice Rehnquist's opinion for the Court emphasized that
because the vast majority of criminal convictions arise from guilty pleas,
the need for finality in judgment was particularly great. 122 The Court
stated that, "we believe that requiring a showing of 'prejudice' from
defendants who seek to challenge the validity of their guilty pleas on the
ground of ineffective assistance of counsel
will serve the fundamental
' 23
interestin the finality of guilty pleas."'
The standard set forth in Hill for a defendant to successfully
challenge a plea bargain is an exceptionally demanding one. 124 Once the
119. 397 U.S. 759 (1970).
120. Id at 771. Vague, generalized standards, such as this, for assessing the effectiveness of
counsel have historically been the norm. See, e.g., Cooper v. Fitzharris, 586 F.2d 1325, 1330 (9th
Cir. 1978) (stating that the assistance by counsel should be that of a "reasonably competent attorney
acting as a diligent conscientious advocate"); United States v. Easter, 539 F.2d 663, 666 (8th Cir.
1976) (requiring counsel to "exercise the customary skills and diligence that a reasonably competent
attorney would perform under similar circumstances").
121. Hill, 474 U.S. at 59. When the defendant has entered a guilty plea and there's been no
trial, the burden on defendant to show ineffective assistance is increased. See Coon v. Weber, 644
N.W.2d 638, 643 (S.D. 2002). The defendant must show not just deficient performance but gross
error by the attorney in advising the plea of guilty. See id.
122. See Hill, 474 U.S. at 58. For a rather unusual instance where a Circuit Court of Appeals
criticizes a decision of the Supreme Court, see United States v. Arvanitis. 902 F.2d 489, 494 n.4
(7th Cir. 1990), superseded by 18 U.S.C.A. § 3663 (West 2000) ("The majority opinion in
Hill... is not well reasoned.... We therefore join in the minority's criticism of the Hill opinion.").
123. See Hill, 474 U.S. at 58 (emphasis added).
124. The requirement that the defendant show "prejudice" ought not to exist at all in instances
where the court prohibits counsel from having the opportunity to engage in any fact investigation or
preparation for his client's case. Courts have found constitutional error when counsel was prevented
from providing assistance to his client during a critical stage of the proceeding, and the entrance of a
plea of guilty is most certainly a "critical stage." See, e.g., Geders v. United States, 425 U.S. 80, 91
(1976) (finding that the night before defendant was to be cross-examined in his criminal trial was
critical and denying defendant access to his counsel during that time violated his rights under the
Sixth Amendment); Brooks v. Tennessee, 406 U.S. 605, 612-13 (1972) (finding that a Tennessee
law that requires a testifying defendant to testify first denied the defendant of the effective
assistance of counsel); Hamilton v. Alabama, 368 U.S. 52, 55 (1961) (finding that an arraignment is
a critical stage); Ferguson v. Georgia, 365 U.S. 570, 598 (1961) (finding that the presentation of the
defense to the court is a critical stage).
HOFSTRA LAW REVIEW
[Vol. 32:1349
defendant has entered the guilty plea there will ordinarily be no appellate
review of counsel's preparation of the case. The overburdened public
defender knows, therefore, that if his client pleads guilty, counsel will
not be examined as to what investigation or preparation he may have
done or failed to have done on his client's case.
The general reluctance of appellate courts to overturn guilty pleas is
illustrated by the case of Parrishv. Beto. 125 The defendant had been a
young, uneducated boy, incarcerated for six months on a capital charge
at the time the district attorney threatened the boy with being "burned"
on the electric chair if he chose to go to trial, and his counsel pressured
him to plead to a sentence of ninety-nine years.' 26 The Fifth Circuit, in
spite of the prosecutor's threat to the defendant of what could happen
were he not to plead guilty, nevertheless deemed the plea to be
27
voluntary.
The primary objective of our criminal justice system must be
fairness and justice, not finality and judicial economy. Is it just or fair to
inform a defendant who was represented by a counsel so overwhelmed
with cases operating in a system "in which the need simply to dispose of
cases has overshadowed everything else"' 128 that he has no recourse
129
because of the "fundamental interest in the finality of guilty pleas"?
The Tenth Circuit in Sanchez v. Mondragon'30 quite accurately
portrayed reality: "Given the well-known overworked state of many
public defenders, it is possible that [the defendant's] lawyer was
insufficiently prepared, and that his attempts to persuade [the defendant]
to plead guilty were affected by his lack of preparation.' 3' In the recent
125.
414 F.2d 770 (5th Cir. 1969) (per curiam).
126.
Seeid.at771.
127. See id.
at 771-72.
128. CRIMINAL COURTS COMM. OF THE ASSOC. OF THE BAR OF THE CITY OF NEW YORK,
SAVING THE CRIMINAL CODE: A REPORT ON THE CASELOAD CRISIS AND ABSENCE OF TRIAL
CAPACITY IN THE CRIMINAL COURT OF THE CITY OF NEW YORK 2 (1983) [hereinafter REPORT ON
THE CASELOAD CRISIS].
129. Hill v. Lockhart, 474 U.S. 52, 58 (1985). Twenty years earlier, the Court favored the
rights of the individual over the need for finality: "[C]onventional notions of finality ... cannot be
permitted to defeat.., constitutional rights of personal liberty... without the fullest opportunity for
plenary federal judicial review." Fay v. Noia, 372 U.S. 391, 424 (1963), overruled by Keeney v.
Tamayo-Reyes, 504 U.S. 1, 4 (1992), superseded by Antiterrorism and Effective Death Penalty Act
of 1996, 28 U.S.C. § 2254(e)(2) (West 1994 & Supp. 2004); see also Townsend v. Sam, 372 U.S.
293, 311-12 (1963), overruled by Keeney v. Tamayo-Reyes, 504 U.S. 1, 4 (1992), superseded by
Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(e)(2) (West 1994 & Supp.
2004).
130. 858 F.2d 1462 (10th Cir. 1988).
131.
Id. at 1466-67.
2004]
DUE PROCESS DENIED
case of United States v. Bliss,13 2 the Ninth Circuit held that a guilty plea
which is entered by the defendant because his counsel's lack of
preparation made conviction likely, was involuntary and invalid.133
Proving prejudice to courts that desire finality is most difficultespecially given the sparseness of the record when the plea is offered.
The Hill requirement, that in order for a defendant to get relief from a
plea bargain in which he was denied effective assistance he must
establish the reasonable likelihood that he would otherwise have gone to
trial and perhaps have been acquitted, 134 negates the many significant
ways a defendant can suffer from inadequate counsel. True plea
negotiations should often be as adversarial as a trial itself, counsel must
aggressively attempt to obtain the most advantageous plea bargain for
his client. The factual investigation required, but so often not done, in
part because the judge does not permit counsel to have the time to do so,
can be crucial to* counsel's ability to present the most positive
information about the defendant and the charge to both the prosecutor
and the court. 35 Furthermore, an abbreviated court transcript of the plea
hearing will not reveal what a thorough investigation would have
uncovered,1 36 nor will it reveal what weaknesses in the prosecution's
case that competent counsel, given enough time, may have discovered
by interviewing both defense and prosecution witnesses. We are left by
the Lockhart decision with a most unfortunate result: in the vast majority
of instances where an effective, competent counsel could have
negotiated a better plea for the defendant than his incompetent counsel
did, there will be no remedy.
132. No. 02-56362, 84 Fed. Appx. 820, 822 (9th Cir. 2003) (unpublished mem.).
133. See id. On the day that Bliss' trial was to begin, his counsel was unprepared because
counsel had not conducted the investigation that was required. The refusal of the court to grant a
continuance presented the defendant with "a Hobson's choice: proceed to trial with unprepared
counsel and risk a life sentence or plead guilty and receive a lesser sentence." Id.
134. See supranote 123 and accompanying text.
135. See Adele Bernhard, Take Courage: What the Courts Can Do to Improve the Delivery of
Criminal Defense Services, 63 U. PiTT. L. REv. 293, 344 (2002) (The pre-trial work of counsel is
crucial, including determining what had really occurred, who the witnesses are and what was
actually observed, and such pre-trial effort "is the only key to a favorable disposition.").
136. See Britt v. North Carolina, 404 U.S. 226, 227, 229 (1971) (acknowledging that, at the
very least, a transcript is valuable before trial as a discovery tool and after trial as an impeachment
tool). Courts have recognized that there must be funds allocated to provide indigent defendants with
investigative assistance to ensure effective assistance of counsel. See id. at 227. Cf Smith v.
Enomoto, 615 F.2d 1251, 1252 (9th Cir. 1980) (holding that an indigent defendant must make a
showing of need in order to show entitlement to "state-funded investigative services"); see also
Strickland v. Washington, 466 U.S. 668, 691 (1984) (requiring counsel to conduct reasonable
investigations or to make a reasonable decision that a particular investigation is unnecessary).
HOFSTRA LA W REVIEW
[Vol. 32:1349
Judges' attempts to get the defendant to plead guilty quickly by
offering a shorter prison sentence than what would be imposed after trial
ignores the substantial collateral consequences that may impact a
defendant who accepts the plea bargain. 137 Judges very rarely inform a
defendant that accepting the "one-time offer" might affect his
livelihood; 138 that the imposition of civil damages will become more
likely; that he might be required to register as a sex offender;' 39 that he
may be subject to mandatory substance abuse testing; 140 that he and his
family might be denied access to governmental benefits such as public
assistance funds; 14 1 that he may no longer be eligible to live in public
housing; 42 and in most states as a convicted felon he would lose his
right to vote. 143 For some individuals, the most serious consequence
would be a change in immigration status including the possibility of
deportation. 144 Courts fail to take the time to inform defendants of these
137. For example, the failure to be aware of the consequences of entry into a guilty plea
procured by misrepresentation results in the vacatur of the plea. See Bettancourt v. Willis. 814 F.2d
1546, 1549 (llth Cir. 1987). However, there is no constitutional requirement that the possible
consequences of a plea that are collateral as opposed to direct be explained to the defendant. See
United States v. Gilliam, No. 95 Cr. 387, 1996 U.S. Dist. Lexis 15314, at *12 (S.D.N.Y. Oct.
17,1996); United States v. U.S. Currency, 895 F.2d 908, 915 (2d Cir. 1990).
138. Many states have mandatory license revocations for individuals convicted of felonies and
certain jobs are not available for felons even if no prison time resulted from the conviction. See,
e.g., CAL. BUS. & PROF. CODE § 2221(d) (West 2003). For example, licenses which often are
foreclosed to felons are required in many states in order to become a teacher, day care worker, real
estate salesman, home repairman, liquor store or restaurant operator, a variety of positions within
the health care field, or positions with banks or insurance companies. See PLEAS OF GUILTY, supra
note 7, at Standard 14-1.4 cmt.
139. See, e.g., ALA. CODE § 13A-11-200 (1994); CAL. PENAL CODE § 290 (West 1999). An
increasing number of states are requiring registration and public dissemination of the conviction for
individuals convicted of an ever-increasing list of offenses. This has many ramifications for the
convicted individual, not the least of which is the increased difficulty in obtaining employment.
140. See, e.g., VA. CODE ANN. § 18.2-251.01 (1996) (requiring substance abuse screening and
assessment for individuals convicted of felonies).
141. See, e.g., ARK. CODE ANN. § 20-76-409(b) (2001); N.J. STAT. ANN. § 44:10-48(b)(7)
(West Supp. 2004). Many states prohibit individuals convicted of drug offenses from receiving aid
from state programs such as food stamps or assistance for dependent children. See PLEAS OF
GUILTY, supra note 7, Standard 14-1.4 cmt.
142. The entire household may be evicted from federally-funded public housing if any member
of the household is convicted of a drug offense. See 24 C.F.R. § 966.4(1) (2004).
143. See, e.g., CAL. CONST. art. II, § 4 (West 2002); FLA. STAT. ANN. § 97.041 (West 2002).
The impact of the loss of vote has meant that minority communities in particular have diminished
political power due to the over-representation of minorities amongst the population of convicted
felons.
144. The 1996 Antiterrorism and Effective Death Penalty Act Amendments to the Immigration
and Normality Act contains provisions which have widespread impact on non-citizens who are
convicted of felonies. See 8 U.S.C.A. § 1227(a)(2) (West 1999).
DUEPROCESS DENIED
2004]
consequences even though the court is constitutionally required to
inform the defendant of all direct consequences of any guilty plea. 145 As
the court explained in United States ex rel. McGrath v. LaVallee, 146 "a
fair description of the consequences attendant upon the prisoner's choice
of plea.. . [is] manifestly
essential to an informed decision on the part
147
of the prisoner.'
Defendants are not fungible, they are not just cogs in the criminal
court assembly line. Unique issues and particular concerns of specific
defendants must be understood by both the court and defense counsel;
such awareness requires time. Judges, all too typically, not only refuse to
devote sufficient time for themselves to get the required information
about the defendant, but also refuse to permit counsel to conduct the
investigation required to obtain the data. 148 The proper determination of
an appropriate sentence, whether imposed after a plea pre-trial or postconviction at trial, requires consideration of factors such as any record of
drug addiction that might lead to the realization that a drug rehabilitation
program and not incarceration ought to be part of the sentence, the
defendant's psychiatric history, employment record, prior involvement
with the victim, family responsibilities, and a myriad of other factors
that properly bear on the determination of the most-appropriate
sanction. 149
The Supreme Court has been explicit in emphasizing the
responsibilities of the trial judge toward the defendant in a criminal case.
In Glasser v. United States,150 the Court stated that "[u]pon the trial
judge rests the duty of seeing that the trial is conducted with solicitude
for the essential rights of the accused."' 151 The Court almost thirty years
145.
See Aguirre-Mata v. State, 125 S.W.3d 473, 485 (Tex. Crim. App. 2003) (Holcomb, J.,
dissenting) (explaining that "[a] consequence is direct if it is a definite, practical consequence of a
defendant's guilty plea") When the judge's offer does not include incarceration, the defendant may
be all the more unaware of the consequences that may nevertheless occur.
146. 319 F.2d 308 (2d Cir. 1963).
147. Id. at 314.
148. See PLEAS OF GUILTY, supra note 7, Standard 14-3.2(a) cmt. (requiring counsel to
conduct sufficient investigation so as to be able to provide the individualized consideration required
in order to give meaningful advice regarding a possible plea).
149. See 28 U.S.C. § 994(d) (1993). Appellate courts rarely determine that a sentence is
improper; trial judges have broad discretion as long as the sentence imposed is within statutory
limits. There is considered to be a strong public policy opposing interference with the trial court's
discretion in sentencing. See, e.g., State v. Echols, 499 N.W. 2d 631, 640 (Wis. 1993).
150.
315 U.S. 60 (1942).
151. Id. at 71. In Cordova v. Baca, the failure of the trial judge to admonish the defendant
appropriately as to the dangers and disadvantages inherent in waiving counsel and choosing to
represent oneself automatically led to a reversal of the conviction. 346 F.3d 924, 930 (9th Cir.
HOFSTRA LAW REVIEW[
[Vol. 32:1349
later, in McMann v. Richardson,152 again highlighted the significance of
the judge's function: "[I]f the right to counsel guaranteed by the
Constitution is to serve its purpose, defendants cannot be left to the
mercies of incompetent counsel, and... judges should strive to maintain
proper standards of performance by attorneys
who are representing
153
defendants in criminal cases in their courts.'
The ABA places similar responsibilities upon the trial judge 1in
54
Standards for Criminal Justice: Special Functions of the Trial Judge.
The very first of the "Basic Duties" charges the judge with the
responsibility of safeguarding the rights of the accused. 155 The Standard
continues with language that almost seems designed to warn judges not
156
to proceed as we have seen judges do regarding the coercion of pleas:
"The trial judge should require that every proceeding before him or her
be conducted with unhurried and quiet dignity . ,,157 The Standard's
language seems not even to contemplate that it would, in fact, be the
judge and not counsel who was "hurried" and not acting with the
requisite and expected "quiet dignity.' ' 158 Yet in one respect it does seem
as if the Basic Duties of the Trial Judge had been written in an attempt
to directly respond to the way some judges coerce defendants to decide
2003). Even if the reason for the court's failure was mere oversight on the part of the judge,
overturning of the conviction is mandated. See id.
152. 397 U.S. 759 (1970).
153. Id. at 771; see also Braxton v. Peyton, 365 F.2d 563, 564 (4th Cir. 1966) (acknowledging
that "[c]ourts have a duty of vigilance to assure that appointed counsel shall give proper
professional service to their indigent clients"). Some judges may possess distorted perceptions about
what is proper representation . In State v. Huskey, the defendant was charged with four counts of
first degree murder and faced the death penalty. 82 S.W.3d 297, 302 (Tenn. Crim. App. 2002). The
trial judge, citing his authority to monitor court-appointed counsel for indigent defendants, removed
and replaced defendant's counsel because counsel had made too many motions which were
"unnecessarily lengthy," "repetitive," and "duplicitous." Id.at 302-03. The discharged counsel had,
the judge maintained, filed an "unprecedented number of pleadings in this multi-faceted case." Id. at
303.
154. ABA STANDARDS RELATING TO THE ADMINISTRATION OF CRIMINAL JUSTICE: SPECIAL
FUNCTIONS OF THE TRIAL JUDGE (3d ed. 2000) [hereinafter SPECIAL FUNCTIONS].
155. Id. at Standard 6-1.1.
156. See, e.g., supra notes 2 and 3 and accompanying text.
157.
SPECIAL FUNCTIONS, supra note 154, at Standard 6-1.1(b) (emphasis added). The judge
also has the obligation to be patient and courteous to the defendant. Id. at Standard 6-3.4.
158. It would appear that the Standards contemplate that the judge would be the individual who
reigns in the unruly counsel, as contrasted to the judge actually creating the improper courtroom
atmosphere. The judge ought to control the tone of the courtroom and "ensure that the proceedings
are conducted with dignity" and "do everything within his or her power to require that the lawyers
treat each other with courtesy and respect. Although the trial judge cannot be expected to monitor
the behavior of attorneys outside his or her presence, inquiry and admonition are warranted when
complaints are made." Id.at Standard 6-1.1(b) cmt.
DUE PROCESS DENIED
2004]
whether to accept in a matter of minutes pleas which are offered "for
today only." One Standard instructs the judge to engage in conduct
toward the defendant which manifests "professional respect, courtesy,
60
and fairness."' 59 The Supreme Court mandate in Sheppard v. Maxwell1
that "trial courts must take strong measures to ensure that the balance is
never weighed against the accused"'16 1 certainly ought to operate to
prevent the judge himself from becoming instrumental in causing the
balance to be "weighed against the accused."
If the message that comes from the judge is that time is all that
counts and that speed in the processing of cases is all-important, 162 then
the whole system and all its participants can become diseased. The
prosecutor may well not have the opportunity to fully assess the strength
of his case, and in some instances, the police report the prosecutor is
forced to rely on is exaggerated, may contain distortions, or omit vital
information. Yet, it is this police report that forms the basis of the
prosecutor's or judge's plea offer to the defendant. Is the defendant, who
has been assigned counsel by a court whose first words are to convey the
judge's one-time offer, truly to believe that he has had the effective
assistance of counsel? And since so many minorities pass through the
criminal courts of our country, might those individuals perceive the
courts as simply unconcerned with their constitutional rights because of
their color or ethnicity? A defendant may expect partiality from the
prosecution, but shouldn't have to expect it from the judge. Furthermore,
the lawyer who just does the judge's bidding' 63 delivers the defendantclient a one-two punch, a lesson in how the system is stacked against
him.
The Supreme Court has made it clear that the judge at times has the
affirmative obligation to intervene in the adversarial proceedings in
159. Id.at Standard 6-1.1(c). It is not just the defendant to whom the judge must offer respect,
the judge must also treat the defense attorney with "courtesy, fairness, and respect." Id.
160.
384 U.S. 333 (1966).
161.
Id.at362.
162. See Albert W. Alschuler, Courtroom Misconduct by Prosecutors and Trial Judges, 50
TEX. L. REv. 629, 678 (1972) (arguing that our "nation seems to have done its best to divert its trial
judges from their naturally reflective role and to convert them into traffic policemen. At least we
have placed most of our judges at very busy intersections").
163. The decision of whether to plead guilty is that of the defendant and the defendant alone.
See MODEL CODE OF PROF'L RESPONSIBILITY EC 7-7 (1986) [hereinafter PROF'L RESPONSIBILITy].
The ABA's Model Rules of Professional Conduct are not quite as explicit regarding pleas
specifically, but Rule 1.2(a) states that "[a] lawyer shall abide by a client's decisions concerning the
objectives of representation." MODEL RULES OF PROF'L CONDUCT R. 1.2 (2003), available at
http://www.abanet.org/cpr/mrpc/mrpc_home.html.
HOFSTRA LAW REVIEW
[Vol. 32:1349
order to protect the rights of the defendant. In Batson v. Kentucky,1 64 the
Court emphasized the trial court's responsibility to prevent the use of
166
1 65
peremptory challenges for discriminatory goals. In Fludd v. Dykes,
the Eleventh Circuit extended the holding in Batson to civil cases and
made it clear that by permitting counsel to act in a discriminatory
manner, the court itself "becomes guilty" of violating the Equal
Protection Clause.1 67 The Supreme Court's decisions relating to possible
conflict of interests cases present other examples. In Cuyler v.
Sullivan, 168 the Court declared that an attorney must advise the trial court
of any conflict of interest that arises during his representation of two or
more clients, and that the court then has the duty to intervene. The
Supreme Court explained in Holloway v. Arkansas169 that the obligation
to intervene arises because "[u]pon the trial judge rests the duty of
seeing that the trial is170conducted with the solicitude for the essential
rights of the accused."'
The extreme example of the responsibility of the trial court to act
on the defendant's behalf is when the court is obligated to act sua
sponte, even if counsel for the defendant objects. The trial court is
obliged to "protect a defendant's right not to be tried or convicted while
incompetent to stand trial" 17 1 whenever and however the court has
information that creates a reasonable doubt as to the competency of the
defendant. 172 If a judge fails to meet this obligation, the defendant has
been deprived of due process because the trial would not have been a
fair one. 173 In the plea context, the judge is too often the cause of the
denial of due process and too infrequently the protector of the rights of
the defendant. 7 4 In Stano v. Dugger, 75 the dissent emphasized the need
for the court to intervene when required:
164. 476 U.S. 79 (1986), overruled in part by Purkett v. Elem, 514 U.S. 765 (1995) (per
curiam) and Powers v. Ohio, 499 U.S. 400 (1991).
165. See Batson, 476 U.S. at 99 & n.22.
166. 863 F.2d 822 (11th Cir. 1989).
167. Id. at 828.
168. 446 U.S. 335, 347-48 (1980).
169. 435 U.S. 475 (1978).
170. Id. at 484 (quoting Glasser v. United States, 315 U.S. 60, 71 (1942)) (internal quotation
marks omitted).
171. Fallada v. Dugger, 819 F.2d 1564, 1568 (11 th Cir. 1987).
172. See Lokos v. Capps. 625 F.2d 1258, 1261 (5th Cir. 1980).
173. See id.
174. Compare, e.g., Johnson v. Zerbst, 304 U.S. 458, 465 (1938) (discussing the protective
function of the trial court vis-6-vis the defendant), overruled by Edwards v. Arizona, 451 U.S. 477,
484-85 (1981) with the discussion supranotes 87-93 and accompanying text.
175. 921 F.2d 1125 (11 th Cir. 1991).
2004]
DUE PROCESS DENIED
When a trial judge receives notice of a circumstance or event
implicating the fairness of a proceeding before the court, he assumes a
responsibility to intervene in order to preserve the proceeding's
fairness. If the trial judge fails to discharge this duty,
then he becomes
76
causally responsible for the error and its effects. 1
Judges are, of course, required not only to be familiar with the
canons and codes which are applicable to the trial judge, 177 but must
conform their conduct to the specific ethical rules governing the
judiciary. 178 Therefore, the judge's statements ought to reflect not only
the "dignity of judicial office"' 179 but must also "carefully avoid any
' 80
words or actions that could undermine the dignity of the proceedings."'
It is impossible to maintain that the "for today only" style of judging
conforms to the mandate that the trial judge "must be careful to allow
sufficient time" for the defense to "properly prepare their case.''
Judges who treat defendants with a minimum amount of respect or
dignity are perhaps similar to the judge in In re Yengo, 182 who was
described by the New Jersey Supreme Court upon removing the judge
from office, as being
unable to understand the relationship between justice and the
defendant. The poorest, weakest, most hapless or illiterate defendant,
standing before an American Court, is entitled to exactly the same
respect, rights and hearing as would be the Chief Justice of the United
States standing before the court and similarly accused. This isyart of
what our Constitution means by "equal protection of the laws."
There are two other significant ways that the coercion of pleas
violates judicial codes of conduct. The judge who assesses a case he sees
for the first time in a matter of moments and then concludes what the
outcome should be with no or minimum input from defense counsel,
176. Id. at 1158 (Tjoflat, C.J., dissenting).
177. See SPECIAL FUNCTIONS, supra note 154, at Standard 6-1.3. The Standard is titled,
Adherence to Standards, and is one sentence in length: "The trial judge should be familiar with and
adhere to the canons and codes applicable to the judiciary, the ethical rules effective in the particular
jurisdiction applicable to the legal profession, and standards concerning the proper administration of
criminal justice."
178. Id. at Standard 6-1.3 cmt.
179. Id.at Standard 6-1.4.
180. Id.at Standard 6-1.4 cmt.
181. Id. at Standard 6-1.5(a) cmt. See supra notes 87-93 and related discussion regarding the
judge telling counsel that the time was up.
182. 371 A.2d41 (N.J. 1977).
183. Id.at 56-57.
1376
HOFSTRA LAW REVIEW
[Vol. 32:1349
violates the requirement that "[t]he trial judge should give each case
individual treatment; and the judge's decisions should be based on the
particular facts of that case."1 84 It is all too often what the court itself
actually does that may leave the impression that the criminal process is
mechanical and that there is no individual justice. The judge is not just
the bystander to the lack of individualized justice, but all too often, the
judge is a major player and, in many ways, the major cause.
Furthermore, the judge who threatens the defendant in order to get
him to plead guilty to criminal conduct is no longer acting as the
requisite "neutral" figure. 185 As an Ohio Court of Appeals stated so
forcefully in Ohio v. Filchock: 86 "It stretches the appearance of
neutrality past the breaking point for a trial court to usurp the role of the
prosecutor by formulating and proposing a plea bargain, and neither 'Ithe
7
State nor the Federal Constitutions will countenance such a practice." 8
The Criminal Justice Standards properly link the requirement of
judicial impartiality with public confidence in the integrity of the
judiciary.188 Judges certainly lose the appearance of objectivity and
impartiality when they take on the role of advocate and pressure
defendants to plead guilty and not to contest the charges against them. 89
As the court stated in Bethany v. State,190 "[w]here a trial judge
abandons his position as a neutral arbiter and takes on 19the
role of an
1
advocate, this system cannot function and fairness is lost.'
Judicial pressure may even be directed to the defendant's family
members. One judge in Ohio requested that the defendant's mother and
184.
SPECIAL FUNCTIONS, supra note 156, at Standard 6-1.1(b).
185. Id. at Standard 6-3.4. The Standard also requires that the judge "suppress personal
predilections" and not permit himself to get "embroil[ed]" in the conflict. Id. The Commentary is
even stronger: "The judge should not demonstrate even a hint of partiality." Id. at Standard 6-3.4
cmt.
186.
187.
688 N.E.2d 1063 (Ohio Ct. App. 1996).
Id. at 1067; see also State v. Delarosa, 547 A.2d 47, 51 (Conn. App. Ct. 1988) (asserting
that the court "should never assume a position of advocacy, real or apparent").
188. See SPECIAL FUNCTIONS, supra note 156, at Standard 6-1.6(a). The Commentary
highlights the need for the judge to appear to be impartial and instructs the judge to "remain alert"
as to whether any action by the judge may even create the "appearance of partiality." Id. at
Standard 6-1.6(a) cmt. (emphasis added).
189.
See Filchock, 688 N.E.2d at 1067; Delarosa, 547 A.2d at 51. The plea of guilty requires
that the defendant waive his constitutional right to a jury trial. The Supreme Court explained that
"[a] waiver is ordinarily an intentional relinquishment or abandonment of a known right or
privilege." Johnson v. Zerbst, 304 U.S. 458, 464 (1938), overruled by Edwards v. Arizona, 451 U.S.
477, 484-85 (1981).
190. 814 S.W.2d 455 (Tex. Ct. App. 1991).
191. Id. at 462.
2004]
DUE PROCESS DENIED
1377
sister meet with the judge outside of the presence of either the defendant
or his counsel. 192 The defendant in the case was black and the judge told
the family that if the defendant were to insist on going to trial he would
face a predominately white jury, and, were a conviction to ensue, the
defendant's sentence would be death. 193 The judge asked the family to
request the defendant to sign a statement indicating that he wished to
plead guilty. 194 The family members acquiesced and, in the absence of
his counsel, but in the presence of95the prosecutor, the plea bargain was
arranged in the judge's chambers.'
Judges may, in fact, be torn between their desire to get the plea and
their knowledge that the coercion needed at times to get the plea might
be inappropriate. 196 But the court's message, however masked, is often
quite clear. Consider the trial judge in United States ex rel. McGrath v.
LaVallee. 197 The judge told the defendant: 1) that the plea which was
offered was "very, very fair,"' 98 2) that the chance of any acquittal at
trial was "not too good,"' 199 3) that he would not be entitled to any kind
of favorable consideration were he to be convicted, 20 0 and 4) that the
judge "might have to send you away for the rest of your life.,' 20 1 "But,"
the judge then added, cavalierly, "I emphasize that I am not telling you
192. See State v. Byrd, 407 N.E.2d 1384, 1385-86 (Ohio 1980).
193. See id. at 1386. The judge had, in actuality, the discretion to impose either a prison
sentence or the death penalty after conviction.
194. See id. Theoretically, pressure from family members on a defendant to plead guilty will
not make a plea involuntary or coerced. See Kent v. United States, 272 F.2d 795, 798 (1959).
However, where, as was the case here, the source of the threat to the defendant was easily traceable
back to the court, due process would be violated. See Lo Conte v. Dugger, 847 F.2d 745, 753 (11 th
Cir. 1988).
195. See Byrd, 407 N.E.2d at 1386. The plea bargain was voided because of the intense
pressure that the judge placed upon the defendant. See id. at 1389. However, the court in its decision
retreated from its prior holding in State v. Griffey that under no circumstances should a judge
partake in plea negotiations. See id. at 1388 (modifying Griffey, 298 N.E. 2d 603, 610 (Ohio 1973)).
The Byrd rule adopted by the court required careful scrutiny, and condemnation in only some
instances, of judicial participation in plea bargaining See Michael A. Hiser, Comment, Judicial
Participationin Plea Bargaining-FundamentalFairness?8 OHIO N.U. L. REv. 212 (1981).
196. The Model Code of Judicial Conduct is not always understanding of the conflicting
demands on judges. The Code, at times, seems to have been written with the belief that judges can
do it all. For example, the Commentary to Standard 3B(4) informs that, "The duty to hear all
proceedings fairly and with patience is not inconsistent with the duty to dispose promptly of the
business of the court. Judges can be efficient and businesslike while being patient and deliberate."
MODEL CODE OF JUDICIAL CONDUCT, supra note 1, at Canon 3B(4) cmt.
197.
198.
199.
200.
201.
319 F.2d 308 (2d Cir. 1963).
Id. at 323 app. (Marshall, J., dissenting).
Id.
See id. at 324 app. (Marshall, J., dissenting).
Id. at 323 app. (Marshall, J., dissenting).
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what to do son., 20 2 What is crucial, in any event, is not whether the
judge's comments were deliberately designed to induce the guilty plea,
the issue is whether the judge's statements to the defendant have that
impact.203
Although the Supreme Court in Brady v. United States204 has
upheld the overall constitutionality of plea bargaining, the Court, in
United States v. Jackson,205 declared unequivocally that "due process
forbids convicting a defendant on the basis of a coerced guilty plea. 20 6
A plea which has been induced by threats is deprived of its requisite
voluntariness.20 7 The Jackson Court held the death penalty clause of the
Federal Kidnaping Act20 8 to be unconstitutional in that the only time the
death sentence could be imposed under the statute was if the defendant
refused to plead guilty and was convicted after a jury trial. 20 9 The Court
elaborated on its prohibition of coerced guilty pleas: "[T]he evil in the
federal statute is not that it necessarily coerces guilty pleas and jury
waivers but simply that it needlessly encourages them. A procedure
an
need not be inherently coercive in order that it be held to impose
2 10
impermissible burden upon the assertion of a constitutional right.,
State courts have, albeit infrequently, also condemned the
"punishment" of an individual for the exercise of his right to a jury trial.
The Supreme Court of North Carolina remanded a case for re-sentencing
because the trial judge had stated in open court that the sentence he was
imposing was in response to the defendant's insisting on a jury trial, and
forcefully explained the basis of its decision:
No other right of the individual has been so zealously guarded over the
years and so deeply embedded in our system of jurisprudence as an
accused's right to a jury trial. This right ought not to be denied or
202. Id. at 324 app. (Marshall, J., dissenting) (emphasis added). This is evocative of the New
York State Supreme Court judge in People v. Derrick Smith, who told the defendant that he was
"not obligated to accept" the plea which had been offered. See supra note 3 and accompanying text
203. See United States ex rel. Elksnis v. Gilligan, 256 F. Supp. 244, 253 (1966).
204. 397 U.S. 742, 746, 753 (1970) (holding that merely because the defendant was motivated
to accept a specific penalty rather than be subjected to a greater sentence after trial did not, in and of
itself, cause the plea to be involuntary or coerced). The Court deemed plea bargaining to be an
"essential component of the administration ofjustice." Santobello v. New York, 404 U.S. 257, 26061 (1971).
205. 390 U.S. 570 (1968).
206. Id. at 581 n.20 (emphasis added).
207. See Brady, 397 U.S. at 750.
208. 18 U.S.C.A. § 1201(a)(5) (2003).
209. Jackson, 390 U.S. at 581-82.
210. Id. at 583 (emphasis in original).
2004]
DUE PROCESS DENIED
abridged nor should the attempt to exercise this right impose upon the
defendant an additional penalty or enlargement of
2 11his sentence. The
statement of the trial judge.., we cannot condone.
One reason why appellate court language such as this is unusual is that it
is rare for a trial judge to state so clearly on the record the relationship
between the sentence that is imposed after trial and the refusal of the
defendant to have accepted the offered plea.
There's one additional, and very significant way that judiciallycoerced plea bargaining may often violate the constitutional rights of the
defendant. There is a Fifth Amendment right for an individual not to
incriminate himself,2 1 2 yet if the defendant chooses to exercise that right
by remaining silent, i.e., not to plead guilty, he may well be punished by
an increased sentence after trial.213 It can be demanded that an individual
testify in ways which might, in fact, incriminate himself only when he is
to be granted immunity from penalty or prosecution based on those
statements. It is only after the state makes it clear to the individual that
immunity is to be granted that the state can penalize the individual for
remaining silent. In the plea bargaining scenario, the defendant not only
receives no immunity but is convicted of the crime immediately upon
acknowledging his guilt.
A coerced plea is certainly one form of coerced confession. The
Supreme Court in Brown v. Mississippi214 held that the Due Process
Clause of the Fourteenth Amendment prohibited states from using
coerced confessions against an individual. And the Court in Malloy v.
Hogan21 5 declared that the Fifth Amendment privilege against selfincrimination is the essential mainstay of the American system of
criminal prosecution and that the Fourteenth Amendment protects the
privilege from any form of "abridgment by the States."
How can a defendant's silence (as indicated by a refusal to plead
guilty) be both protected and subject to penalty by the court's increase in
211. State v. Boone, 239 S.E. 2d 459, 465 (N.C. 1977).
212. See U.S. CONST. amend. V.
213. See, e.g., State v. Pennington, 712 A.2d 1133 (N.J. 1998); see also supra notes 35-42 and
accompanying text.
214. 297 U.S. 278, 286 (1936).
215. 378 U.S. 1, 6 (1964). Some judges seem so antagonistic to a defendant exercising his right
to remain silent that the defendant will actually be asked by the judge to explain why he was
pleading not guilty. See, e.g., McKevitt (N.Y. Comm'n on Judicial Conduct, June 27, 1998),
available at http://www.scjc.state.ny.us/Determinations/M/mckevitt2.htm. The New York State
Commission on Judicial Conduct concluded that such questioning by the judge gives the defendant
the appearance that the judge wants him to plead guilty. Id.
1380
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punishment because that silence necessitated a jury trial? The
constitutional right of an individual charged with crime to force the
government to prove its case without the aid of the defendant has existed
in this country "since the earliest days of the Republic. '21 6 The burden
upon the state to prove the defendant guilty beyond a reasonable doubt is
not a mere formality but is a crucial and vital component of our system
of criminal justice.217 The individual accused of crime has every
right-and the exercise of rights must be protected not penalized-to
seek to have the prosecution meet its burden.
Even in situations where the judge himself is ...
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