By Regan Gibson, ACLR Featured Blogger
In Missouri v. Frye, Justice Kennedy astutely observed that plea bargaining is not just “some adjunct” to the criminal justice system; it is the criminal justice system. With over 95% of criminal cases being resolved with guilty pleas, defendants are under great pressure from prosecutors, and often their own counsel, to accept plea bargains in order to avoid long and costly trials. When judges get into the plea bargaining business, the pressure for defendants to plead guilty is exponentially increased.
It is with this in mind that on April 15, the Supreme Court heard argument in United States v. Davilla, which concerns how defendants will be granted relief when judges violate Rule 11’s prohibition on judicial participation in plea negotiations. In the case, Anthony Davila was charged with conspiracy to defraud the United States by obtaining false tax refunds. Davilla indicated he wanted to go to trial, and filed a motion to dismiss counsel and proceed pro se. In his motion, Davilla argued that counsel had acted improperly by advising him to plead guilty and by not discussing any alternative options with him. During the hearing on the dismissal of counsel in February 2010, the presiding magistrate judge said that “there may not be viable defenses to these charges,” and that pleading guilty sometimes was the best advice that an attorney could provide his client.[i] The judge then told Davilla that the only thing he had that was entirely up to him was the three-level sentence reduction for acceptance of responsibility, and that someone with his criminal history needed that reduction.[ii]Three months later, Davilla pleaded guilty in front of a District Court judge. During that hearing, Davilla stated under oath that no one had forced him or pressured him to plead guilty, and the district court found that the plea was knowing and voluntary.
The issue of the magistrate’s conduct in the February 2010 hearing was not brought up until a hearing in the fall of 2010. A magistrate granted Davilla’s motion to dismiss counsel and proceed pro se, and Davilla filed a subsequent motion to vacate his plea and dismiss the indictment on grounds unrelated to the magistrate’s remarks. At a hearing before the district court, Davilla stated that the taking the plea had been a strategic decision designed to expose the government’s misconduct, and that his decision to plead had also been influenced by his counsel’s advice about the effect the plea would have on a separate prosecution in another jurisdiction. The district court declined to set aside the plea, finding no misconduct and that the entry of the guilty plea was knowing and voluntary. Davilla’s trial counsel was assigned to represent him on appeal and filed a motion to withdraw. While denying that motion, the appellate court stated that there was an irregularity in the statements of magistrate court, and the record seemed to indicate that magistrate was telling Davilla to plead guilty. The court ordered further briefing on whether the magistrate’s remarks violated Federal Rule of Criminal Procedure (FRCP) 11(c)(1). Davilla then filed a brief through counsel requesting that the plea be set aside on those grounds.
On appeal, the Eleventh Circuit held that the magistrate’s comments violated Rule 11(c)(1) and the plea must be vacated. The court, noting that 11(c)(1) states “[t]he court must not participate in [plea] discussions,” followed circuit precedent of treating 11(c)(1) as “bright line rule” that does not require a showing of individualized prejudice. The court reasoned that judicial involvement in pleas carries a high risk of coercion and thus endangers the integrity of the judicial process. The court, while recognizing that only three circuits require vacatur for any judicial participation regardless of its effect on the defendant, vacated the conviction and instructed that Davilla’s not guilty plea be reinstated and the case assigned to a different judge.
The government appealed the Eleventh Circuit’s decision, and the Supreme Court granted certiorari. The principle issue before the Court is whether to adopt the Eleventh Circuit’s approach to resolving issues of judicial participation in plea discussions. On one side, the government advocates for a plain error analysis under FRCP Rules 11(h)[iii] and 52,[iv] which requires a showing the error affected the defendant’s substantial rights. Davilla does not dispute the text of Rules 11(h) and 52, but argues that they do not apply to “structural” errors for which relief may be granted even without a showing of prejudice.[v] Because an impartial judiciary is so integral to the plea process, Davilla argues that judicial intervention into plea discussions is just such a structural error.
In its brief, the government rejects the contention that judicial participation in plea discussions constitutes a structural error. The government notes that only a small class of constitutional errors have been deemed structural by the courts, including denial of counsel of choice, denial of self-representation, denial of a public trial, and denial of a reasonable doubt instruction, none of which are Rule 11 errors. The government argues that because Rule 11 is not constitutionally mandated and is a prophylactic rule designed to ensure that pleas are voluntary, its violation is simply an error in the process, rather than something that infects the process. The government advocates for a case-specific prejudice analysis to determine whether the participation affected the substantial rights of the defendant. Most interestingly, the government points out that had Davilla raised a timely objection, the remedy, that is, having the case assigned to a new judge and allowing time to pass before entering a plea.
In contrast, Davilla’s brief differentiates between the judicial intervention and other technical Rule 11 errors (such as mistakes in plea colloquies), the latter of which does not inherently impair the guilty plea process the way judicial intervention does. The plea process is impaired, Davilla argues, because a judge who influences a defendant’s decision to plea is advising a defendant to forgo his constitutional right to a fair trial. The position of a judge is such that both defendants and defense counsel will fear to go against their wishes, even if the judge is acting as an additional prosecutor by endorsing a plea offer. Davilla argues that because of these coercive tendencies, judicial interference is a structural error that can be reversed without a prejudice inquiry. Davilla cites four considerations courts use before deciding to dispense with the defendant-specific inquiry.
The first, the significance of the rights threatened by the error, is implicated because trial by jury is the constitutional default even if most defendants plead guilty. The second consideration, the tendency of the error to affect the result, is relevant here because judges occupy a special position of authority and their recommendations are inherently coercive. The third consideration, the difficulty in assessing the impact of the error, is important the record will have little discussion of plea negotiations, and Davilla claims there will be no way to determine whether it affected the plea or not. Lastly, Davilla argues the courts turn to practical considerations, and emphasizes that these inquiries undermine the finality of convictions and increases the burden on courts, but in a way that it will only encourage defendants to appeal their motions to vacate and will increase the burden on the appellate courts to look into every plea. Davilla’s arguments are supported by such distinguished amici as the National Association for Criminal Defense Lawyers, Scholars and Practitioners of Legal and Judicial Ethics, and 57 Criminal Law Professors.
The Supreme Court should find for Davilla and adopt the Eleventh Circuit’s approach to judicial interference in plea agreements and find that such interference is a structural error. While a trial by jury is the Constitutional default, it is well-established that plea agreements, now ubiquitous, have become the foundation of the criminal justice system. While a plea agreement may not be a Constitutional requirement, it is, as Davilla argues, the knowing waiver of a Constitutional requirement. For the system to function correctly, a defendant’s decision to waive his trial right must be knowing and voluntary and made free of coercion. If a judge abandons his impartiality and presents himself as an additional advocate, the pressure on a defendant to plead guilty, and on defense counsel to encourage him to plead guilty, is greatly increased, and the system is undermined. A defendant might fear a harsher sentence if they fail to follow a judge’s recommendation, and defense counsel will not want to damage their relationship with a judge who they will continue to appear before. In addition, there is no real way to know what if any effect a judge’s interference has on a defendant’s decision; even if plea offers and rejections are communicated to the court on the record, the defendant will not give his reasoning and may not even realize that his decision was influenced by the court’s misconduct.
It is true that the facts of Davilla’s case may not be the strongest endorsement for this approach. His stated reasons for pleading guilty were his own trial strategy and unrelated advice from counsel and had nothing to do with the magistrate’s remarks. His plea was taken before another judge who found it to be knowing and voluntary, and the issue of judicial coercion was not raised until it was suggested by the appellate court. It is also true however, that the magistrate was in fact encouraging him to plead guilty. In these cases, it is more important for appellate courts to protect the integrity of the justice system and the plea process as an institution. A defendant whose plea is vacated is not granted a free pass; he still must face a jury of his peers, and if the government can meet its burden he will be convicted of the charged crime, and justice will be done. On the other hand, if judges are allowed to abandon their impartial roles and influence defendant’s decisions to plead, the system is undermined whether or not the defendant is actually guilty, and without a real ability to determine what if any effect the judge’s conduct has on the defendant’s decision. It is true that some defendants may be allowed to vacate their pleas without actually having been coerced by the judges conduct, but that risk is far outweighed by the importance of protecting defendants rights to knowingly waive their constitutional right to trial without influence or coercion.