What are the criminological theories or rationale behind the plea bargaining process? Week 3 Discussion

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For this discussion, first read Chapter 5 and pp. 1,349–1,365 in Due Process Denied: Judicial Coercion in the Plea Bargaining Process.


An overwhelming majority of criminal cases are settled by plea bargaining rather than by trial. If an individual has been charged with a crime, the prosecutor may offer a reduction of charge in exchange for a guilty plea. If individuals exercise their rights and demand a jury trial, it is more likely they will be charged with a more serious crime (as opposed to taking a lesser offense), and, if convicted, they will likely be given a longer sentence.

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In your initial post, answer the following questions:

  • What are the criminological theories or rationale behind the plea bargaining process?
  • What strategy would you incorporate to remove the disparity in bargaining power?
  • What evidence-based argument would you use in dealing with this strategy?

The reading is linked below. This must have references and in text citations.

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+(,121/,1( Citation: Richard Klein, Due Process Denied: Judicial Coercion in the Plea Bargaining Process, 32 Hofstra L. Rev. 1349, 1424 (2004) Content downloaded/printed from HeinOnline Mon Sep 18 12:14:06 2017 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information Use QR Code reader to send PDF to your smartphone or tablet device 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). HOFSTRA LAWREVIEW [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). HOFSTRA LAW REVIEW [Vol. 32:1349 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 HOFSTRA LA W REVIEW [Vol. 32:1349 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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Running head: PLEA BARGAINING

Plea Bargaining
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PLEA BARGAINING

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Plea bargaining is referred to as the negotiations between defense lawyer or defendant
and the prosecutor over the prosecutors charge. The rationale behind the plea bargaining
process is that the high costs of taking a case to trial are sometimes not necessary, and
according to judges the case of overcrowding in prisons and the who process of going to trial
on offenses that will not get the offender much ja...


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