Let's Make a Deal
For a moment, it looked like Warren Caldwell had dodged a bullet. He was charged with thirty counts of child molestation, including rape and kidnapping charges, the latter carrying sentences of 25 to life. But the case wasn't a good one; there were any number of credibility problems with the alleged victim, Caldwell's stepdaughter, and so when the judge ruled that her previous false accusations of rape against an uncle would be admissible, the prosecutor cut bait, and the two sides presented a plea bargain to the judge: Caldwell would plead to two counts of abduction and two of importuning, both third degree felonies, the latter requiring Caldwell's registration as a Tier I sex offender.
The judge refused to accept it.
The trial proceeded, and the prosecutor's fears as to the viability of her case proved well-founded: the jury acquitted Caldwell of 28 of the 30 counts. But it convicted him of one count each of rape and kidnapping. The two merged, but that didn't really matter. Off Caldwell went to do his 25 to life, instead of the maximum three years he would've done on any of the charges in the plea deal.
Last Thursday, by a 2-1 vote the 8th District held in State v. Caldwell that the judge abused his discretion in nixing the deal.
I handled the appeal, and the big problem is that there's no question that judges do have discretion to reject a plea. No, they can't do it as a matter of policy -- you can't, for example, have a blanket rule of rejecting no contest pleas, or of refusing plea offers on the day of trial -- but there's plenty of cases, both state and Federal, affirming a judge's rejection of a plea. In fact, while I found cases holding in general language that a judge shouldn't reject a plea without giving reasons for doing so, the only cases I could find where a judge had been reversed for rejecting a plea were two Federal cases where the refusal was based on the judge's mistake of law.
That means that we're writing on a clean slate, though; the fact that a judge has discretion to reject a plea means that he can abuse that discretion in doing so. But when?
Let's go back to those "reasons" for rejecting the plea. The judge had cited two. One was that the plea wouldn't be voluntary. If the judge had come to that conclusion after doing a Rule 11 colloquy with Caldwell, I'd be dead in the water; any appeals court would have deferred to the judge's determination on that score. But the judge here didn't; without conducting a colloquy -- and after stating that he presumed if he did conduct one Caldwell "would end that colloquy having demonstrated that he understands the plea." Instead, the judge held that given the timing, the plea would be "inherently coercive." That wasn't going anywhere: I'd love to have an appellate rule that any plea rendered immediately before or during trial had to be vacated because it could be conclusively presumed to be involuntary.
I'd be equally dead if the judge said that he was rejecting the deal because he thought it was too lenient, and there's certainly room for argument there. But the judge didn't; instead, he held
So [Caldwell] either did nothing, or nothing criminal, and should be acquitted, or he did something which our legislature has characterized as one of the worst crimes one can commit, and he should be then treated accordingly. I'm not sure I see the middle ground.
This left an opening. I argued that this could be said of virtually every plea bargain: with few exceptions, they involve the defendant pleading to something less than he's charged with, but more than he'd like. That's the nature of bargaining, and the court's "all or nothing" approach ignored that.
The remedy the court fashioned was interesting: Caldwell could accept the plea bargain, but if he didn't, the conviction and sentence would be reinstated. I had raised several arguments about the trial, and the court found the admission of certain evidence to be error, but held that it was harmless in light of the "substantial testimony concerning the charges against Caldwell." How an error is harmless when a defendant is acquitted of 28 of the 30 counts is somewhat a mystery, but the net result avoids giving Caldwell the option of opting to take his chances with only the two charges which survived. Not that that would be much of a choice, anyway; you simply don't turn down a handful of third degree felonies when the other possible outcome is spending the rest of your life in prison.
It's easy to make too much of Caldwell; the case is far too fact-specific to be of much precedential value, and the issue certainly isn't a big one. One of the things I found in my research is just how few cases there are of judges rejecting pleas. For reasons which are understandable, if you've spent any time in the criminal justice system: most judges are only too happy to avoid a trial and get a case off their docket. And Caldwell actually extends the right to reject a plea in one situation which arises frequently. The majority notes with approval the same judge's rejection of a plea in an earlier case. The defendant, charged with rape and kidnapping, had agreed to plead guilty to abduction. That's not an uncommon deal; I worked it out in a case just last year. But the judge had rejected it, finding that a plea to abduction without an underlying sex offense made no sense: for what purpose had the victim been "abducted"? That wasn't the case with Caldwell: abduction is a lesser offense of kidnapping, and one of the other charges had been reduced to importuning by the judge on a Rule 29, and thus was a possible outcome of trial.
Even if it doesn't have much in the way of precedential value, it got Warren Caldwell out of a life sentence. I'm guessing he cares a lot more about that anyway.