Plea Bargaining Harmless Error

Late last week the Supreme Court unanimously decided U.S. v. Davila, the full decision is here.  This is not a ground-breaking case, and the holding is not a surprise. Yet it is the bigger question about how our criminal justice system routinely works that is embedded into this case, although not confronted or even explicitly commented on, that is interesting.

The basic facts are that the defendant, Anthony Davila, decided to plead guilty to federal charges and accepted a plea deal.  However, three months before he entered his guilty plea, the federal magistrate (not the U.S. District Court Judge who accepted his plea), made a series of statements about the plea bargain that were clearly intended to encourage Davila to accept the plea bargain.  Unlike in many states, the Federal Rules, under Rule 11 (c)(1), specifically prohibit judicial involvement in plea bargaining.

The U.S. Magistrate Judge’s statements to Davila included telling him:

“it might be a good idea for the Defendant to accept responsibility for his criminal conduct[,] to plead guilty[,] and go to sentencing with the best arguments. . . still available [without] wasting the Court’s time,[and] causing the Government to have to spend a bunch of money empanelling a jury to try an open and shut case.”  

The Magistrate went on to say,

“the Government, they have all of the marbles in this situation and they can file that . . . motion for [a] downward departure from the guidelines if they want to, you know, and the rules are constructed so that nobody can force them to file that [motion] for you. The only thing at your disposal that is entirely up to you is the two or three level reduction for acceptance of responsibility. That means you’ve got to go to the cross. You’ve got to tell the probation officer every­thing you did in this case regardless of how bad it makes you appear to be because that is the way you get that three-level reduction for acceptance, and be­lieve me, Mr. Davila, someone with your criminal his­tory needs a three-level reduction for acceptance.”  

The U.S. Supreme Court held that while these statements are a violation of Rule 11(c)(1) the defendant is not entitled to a vacatur of the plea if he did not suffer any prejudice due to the violation in his decision to plead guilty.  In doing so, they resolved a Circuit conflict on this question.

What is interesting to me in this case is not that the defendant lost (that could be expected). Or that the court decided that a Rule 11(c)(1) violation is not, in and of itself, enough to vacate a guilty plea.  What is interesting is how routine it is.  The statement from the U.S. Magistrate Judge is a very common statement from the bench to defendants and accurately sums up the situation that many find themselves in:  the government holds all the marbles and the best they can do is go to the cross.  This may be even more true in the federal system with the federal sentencing guidelines that give very real deductions to defendants who accept responsibility by pleading guilty as compared to those who press forward to trial and are convicted.

The statement by the U.S. Magistrate is not substantively outrageous as he was accurately summing up the situation the defendant was in, although such statements in and of themselves may be more unusual in the federal system due to the federal rules.  In my practice it was common for a judge to speak directly to my clients about the plea deals if they did not quickly accept the deal, which did not violate any rules in California.  Some even went so far as to say a version of “I promise you, if you go forward to trial on this case and are convicted, I will sentence you to more time than this plea deal.”  Statements like that are highly coercive.  And, despite many of my clients later declaring in open court that they were not threatened, I think it clearly qualifies as a threat to encourage the defendant to take the deal.  But, it is routine.  Every player in the system recognizes what is going on.  Prosecutors recognize that a little talk from the bench may help convince the defendant.  Judges realize they hold power and prestige and that defendants often listen to them in a way that they don’t listen to their own lawyers.  And, from my perspective as a defense lawyer, it was often my plan of last resort when I was concerned that my client would suffer real harm by rejecting a deal in a case that he could not win.

This is where the concept of harmless error becomes complicated.  If the harm we are concerned about is just to the defendant (which is the Court’s analysis) then it is very simple:  would the defendant have been worse off if he didn’t take the deal or were some substantive rights violated in the process?  The answer to those questions are usually, no.   But, if we are concerned about a larger harm, it is not such a simple question.  Should it be ok to have a system where going to trial is such a dangerous proposition for a criminal defendant that almost any amount of persuasion is considered ok and not “harmful” for the defendant?  This is a much more complicated question which, not surprisingly, U.S. v. Davila doesn’t even begin to address.

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