Pleas and the BS that comes with them

While lamenting that this blog is likely to be timid, and worse, less than candid, John K., commenting at SL&P, posed a question that is a wonderful way to begin to honestly discuss the role of a federal trial judge.  He wrote:

On the off chance the judge’s blog will be more candid, I’d love to get his take on plea colloquies… particularly ones in which defendants who end up with home detention/probated sentences swear prosecutors who menaced them with plausible trial-penalty threats of 30 years in prison in no way coerced them into taking the deals.

Since judges must know it’s BS, I can’t help but wonder how they rationalize their role in such a ridiculous exercise.

Sure, I know the defendant’s assertion that no one “threatened” him is BS.   However, I have concluded that it is the type of BS that a trial judge must tolerate.  Above all, lawyers and the clients they represent deserve predictibility.  Let me explain.

First, there is legal gobbledygook that helps.  The trial judge can rationalize accepting the plea by relying upon a  hoary legal maxim.   Roughly stated, a prosecutor does not “threaten” if he or she only promises to do what the law permits.  But, this formalism is not alone sufficient to justify accepting the plea.  Something more is required.

I rely upon Justice Holmes to provide that “something more.”  According to Holmes, when eying what the government might do to them, “[p]eople want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of public force through the instrumentality of the courts.”  Oliver Wendell Holmes, “The Path of the Law,” in Holmes, Collected Legal Papers, p. 167  (New York: Peter Smith, 1952) quoted in Bradley C. S. Watson, Oliver Wendell Holmes, Jr. and the Natural Law.

A judge’s adherence to accepted legal formalisms such as “a threat is not a threat if the prosecutor only promises to do what the law permits,” allows lawyers and their clients to predict outcomes.  Let me be more concrete.

Contrary legal dogma notwithstanding, if a Herculean judge were to reject the plea because the judge decided the defendant was in fact “threatened,” what would happen to the client?   Because a judge generally cannot control the prosecutor’s charging decisions or make the prosecution go away, the most Hercules can practically do is set a trial.  In many instances, a trial produces results far worse than the bargained for plea deal.  It is, of course, possible that the defendant would be acquitted.  Even so, by rejecting the plea and the formalism that it is founded upon, Hercules, the judge, wrecks havoc with the client’s desire for predictability.

Now, the foregoing rationalization for accepting the plea depends upon additional factors under Rule 11 of the Federal Rules of Criminal Procedure and the precedents of the Supreme Court.   Among other things, I must satisfy myself that the defendant is truly guilty.  I must satisfy myself that the defendant knows his rights (the alternatives).  I must satisfy myself that the defendant is represented by competent counsel.  Those, of course, are formalisms as well, but they tend to assure the procedural fairness that Holmes also insisted upon.

When it comes to determining how hard the government is going to hit you,  predictability rather than uncertainty is preferable.  So, John K., that is what allows me to accept pleas despite the copious amounts of BS that come with them.

RGK

Ethics of Judicial Blogging

A thoughtful commentator responded to the announcement of this blog at SL&P by stating:

I am not really thrilled with the idea of an active judge blogging publicly. One can author a book or even appear (rarely) on a television show and not worry about being taken out of context, but with blogging on a relatively frequent and periodical manner, the judge runs the risk of biasing his cases. At the very least, some keen-eyed trial attorneys and prosecutors will glean every word to see if there is any potential subject, phrase, or even word in which to declare mistrial or force the judge to recuse. While judges are human and have rights, society has reached a point where virtually every nuance is recorded in perpetuity via the Internet. Hopefully, the good judge will be very careful in his blogging career.

In my initial post, I stressed that I would not blog about pending or impending matters.   However, the commentator’s concern suggests that I provide a bit more detail as I, too, share some of the commentator’s apprehensions.

First, before I began this blog, I thought a lot about the ethics of judicial blogging both during the six years I was privileged to serve on the Judicial Conference Committee on Codes of Conduct and otherwise.  I do not take the commentator’s ethical concerns lightly.

Second, I view blogging as short form scholarship.  For example, I do not believe that blogging is categorically different than writing law review articles.

Third, the Code of Conduct that applies to federal judges explicitly permits judges to “speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.”  Canon 4(A)(1).  The commentary also provides:  “Complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the society in which the judge lives. As a judicial officer and a person specially learned in the law, a judge is in a unique position to contribute to the law, the legal system, and the administration of justice, including revising substantive and procedural law and improving criminal and juvenile justice.  To the extent that the judge’s time permits and impartiality is not compromised, the judge is encouraged to do so . . . .”

Fourth, I am big on judicial transparency.   That is why I am a supporter of making public the individual sentencing statistics of federal judges.  To me, the danger of revealing too much about the trial judge’s thoughts is less of a concern than revealing too little.

Fifth, the more information about trial judges that is publicly available to the legal profession generally the less courtroom regulars (like AUSAs and AFPDs) will have an advantage over those lawyers who come to court less frequently.  “Insider knowledge” distorts markets and legal systems alike.

Finally,  the last admonition of the commentator quoted above is a good one.  I should be careful, and I will try to do so.

PS  Shortly after the launch of this blog, I took my wife, who is on the mend after some very nasty cancer treatments, on a cruise to see the Panama canal.   Thus, the reason for the delay in posting.   Parenthetically:  Is this too much information (TMI)?  I don’t know.  But, as I say, I am big on transparency.

RGK

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