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Missouri v. Frye: The Judge

Back when the Supreme Court handed down its decisions a month ago in Missouri v. Frye and Lafler v. Cooper, I spent several posts analyzing the decision (here and here), and looking at it in detail from the perspective of the defense attorney (here) and the prosecutor (here).   I didn't shortchange judges completely.  In light of Frye's reversal of a conviction where the defense attorney had neglected to advise his client of the state's plea offer, I noted that

A few judges here routinely hold a hearing in advance of trial where the plea offer is read into the record, and some lawyers insist on having that done just prior to trial.  I think that is going to become commonplace now; there isn't going to be a case that goes to trial with the defendant uncertain as to what the plea offer is.

As the 8th District's decision a couple weeks ago in State v. Green indicates, there are some dangers in that approach:  when does a judge's informing a defendant of a plea bargain cross the line into coercing the defendant to take it?

Green was in a world of hurt:  he was looking at two counts of rape, six of sexual battery, and two of kidnapping, all adorned with either sexually violent predator or sexual motivation specifications.  He faced a potential sentence of at least sixty years, and life in prison if convicted of the SVP specs.  The deal his attorney worked out for him would have required him to plead to single count of sexual battery, a third degree felony, with all the specs and the other charges being dismissed.  He initially turned down the deal, then accepted it six weeks later.  Two weeks after that, he flip-flopped again, filing a motion to withdraw the plea.  The court denied that and sentenced him to four years in prison.

Green filed for a delayed appeal, and in his pro se brief -- his assigned lawyer filed an Anders brief -- he argued that "the trial judge's participation in the plea bargain process rendered the proceedings fundamentally unfair."  The appellate panel noted that the Supreme Court had held in State v. Byrd that "a trial judge's participation in the plea bargaining process will be carefully scrutinized to determine if it affected the voluntariness of the defendant's plea," but distinguished Byrd, concluding that the trial court had scrupulously avoided voicing an opinion of Green's chances of acquittal.   Green complained that the judge's explanation of the penalties he faced led him to believe that he couldn't receive a fair trial, but the court disagrees:  the judge did nothing more than point out the significant time Green was facing, and he doesn't contend that the advice was "inaccurate or wrong."  The court concludes by noting that what the trial judge did was "not only permissible but a good practice in light of" Frye and its recognition of "the critical role plea negotiations play in criminal proceedings."

That's all to the good, but Byrd isn't a particularly good reference point here, because it sets the bar exceedingly low.  Byrd was a death penalty case, and the judge there apparently set out to see how many judicial canons he could violate.  He met with the defendant's mother, sister, and friends and encouraged them to pressure Byrd into pleading guilty, telling them that Byrd would most likely "get the chair" if he went to trial.  He even brought Byrd into his chambers -- without counsel -- to urge him to make the deal, one which the judge had apparently himself negotatiated with the prosecuting attorney.

Green shouldn't be read to mean that anything short of what the judge did in Byrd is permissible.  While the court in Byrd refused to impose a flat per se rule banning a judge's participation in plea bargaining -- although the courts in a number of other jurisdictions have -- it strongly cautioned against it, noting that it presented "a high potential for coercion."  When the judge goes to some lengths to explain the details of a particular plea bargain, it's not hard for the defendant to infer that the plea is what the judge desires, and to draw the corresponding inference that things will not go well for him if he doesn't do what the judge wants him to do.

As might be expected, the case law here is pretty much all over the map.  I found one case where the appellate court reversed, finding that the judge had crossed the line with her admonitions to the defendant about how a defendant's willingness to accept responsibility and express contrition were substantial factors in determining an appropriate sentence.  I found another case, though, where the appellate court didn't find any problem with this statement by the judge to a defendant who insisted he was innocent of rape charges during discussion of the plea:

I have no reason to disbelieve you.  Jurors are human beings. They make mistakes. Not often. Not often. Believe me. You get up and you say I didn't do it. You testify, which you got to testify to tell the jury you didn't do it. And then the jury finds out you got two prior felony convictions. Now, you got a guy with two prior felony convictions, opposed to two boys who say this man raped me.

While the court sloughed this off with the comment that "the judge presented what he believed to be, given his experience on the bench, an accurate picture of what could happen at the trial," it's not hard to see how a defendant might believe that the judge had predetermined his guilt, and that going to trial was a hopeless endeavor.

So what's a judge to do?  In light of Frye, there's going to be a lot more on-the-record discussions about pleas, and that invariably means there's going to be more litigation over whether the judge went too far.  There's obviously a lot of wiggle room between Byrd and Green, but sticking with the latter's Dragnet approach -- "Just the facts, ma'am" -- is probably the better course.  This is what you're charged with, and if you go to trial and get convicted, this is how much time could be imposed for that.  This is what the plea offer is, and if you accept it, this is how much time could be imposed for that.  Getting into how going to trial might affect the judge's decision on sentencing, or what the likely outcomes of a trial are, is just inviting trouble.

And keep in mind that this process doesn't give the defendant entirely accurate information.  Yes, a defendant who is convicted of all the charges in the indictment could face decades in prison, but giving that number doesn't communicate to the defendant that (a) he's probably been overindicted, and is unlikely to be convicted of all the counts, (b) some of them might merge as allied offenses, (c) it's unlikely that maximum sentences will be imposed, and (d) HB 86 imposes limitations on the ability of a court to impose consecutive sentences.  For example, let's say you have a first offender who's charged with robbing three people at gunpoint (three counts each of aggravated robbery and kidnapping), and the state's offering one count of aggravated robbery with the three-year gun spec.  As a technical matter, the defendant may indeed be looking at 63 years in prison if he's convicted of everything at trial, but as a practical matter (assuming no one was hurt), before most judges, he's probably looking at somewhere around 10.  He's being told that the difference between going to trial and taking the plea could be over half a century, when actually it's probably only three or four years.

But that's one of the reasons, as noted in Frye, that over 95% of criminal cases wind up being resolved through pleas rather than trial.

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