Plea Bargaining and Rule 11

Plea Bargaining and Cooperation Agreements

• Plea bargaining involves official concessions like reduced charges or sentencing leniency in exchange for a guilty plea
• Concessions can be explicit or implicit and come from various officials
• The defendant offers a guilty plea
• Plea bargains don't include judicial/prosecutorial decisions

Plea Options

• A defendant can plead not guilty or guilty
• An Alford plea allows a defendant to plead guilty while maintaining innocence
• Nolo contendere results in conviction without admitting guilt for future proceedings, approval needed based on public interest
• Conditional pleas allow appealing pre-trial rulings while pleading guilty, government approval also required
• Most federal criminal cases, over 90%, end in guilty pleas, some straightforward, some with negotiations
• Bargaining chips covers charges, sentences, guideline policies, and cooperation

Rule 11

• Governs plea discussions and court's acceptance of deals
• The court cannot participate in plea discussions
• A judge must ensure a plea is knowing, intelligent, and voluntary
• Judges have discretion in accepting/rejecting agreements

Brady v. United States (1970)

• Brady was charged with kidnapping under 18 U.S.C. § 1201(a), faced death penalty if victim was harmed
• Brady initially pleaded not guilty, but changed after his co-defendant confessed and agreed to testify
• Brady received a 50-year sentence, later reduced to 30
• Brady challenged his plea, claiming coercion
• The Court upheld the constitutionality of Brady's plea
• A guilty plea is valid if made voluntarily, intelligently, and with awareness of circumstances/consequences
• Avoiding the death penalty by pleading guilty does not make plea involuntary

Key points in Brady v. United States (1970)

• Pleas aren't invalid just for being motivated by avoiding the death penalty
• It is not coercion if the government induces motives like lesser punishment
• Guilty pleas often reflect defendants' and counsel's strategic attempts to limit punishment
• Invalid guilty pleas must be from improper threats, misrepresentations, or promises unrelated to proper prosecutorial functions
• A standard for validity is that a plea stands if made "fully aware of the direct consequences" and not induced by improper means

Rationale

• Encouraging guilty pleas benefits both defendants and the state
• Defendants reduce maximum penalty exposure
• The State conserves resources while achieving resolutions swiftly
• Guilty pleas aren't constitutionally suspect if properly supervised
• Brady's plea was knowing, voluntary, intelligent and supported by sufficient counsel

Due Process, Rights, and Plea Bargaining

• Due process prohibits punishing actions of constitutional rights or conditioning benefits on waiving such rights
• Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) states that punishing someone for legal actions violates due process
• Brady seemingly conflicts, upholding plea bargaining practices offering leniency for waiving trial rights.
• Daniel Givelber questions whether giving a "discount" for waiving a right differs from punishing someone for exercising it.
• The Sixth Amendment's guarantee of trial is undermined if exercising leads to harsher punishment
• Justice Stewart in Corbitt v. New Jersey, 439 U.S. 212 (1978) suggested that statutes prescribing harsher sentences based solely on plea would be unconstitutional
• United States v. Jackson, 390 U.S. 570 (1968) rules that death penalty only for jury trial cases is unconstitutional

Coerciveness of Offers

• Brady warns that plea offers should not unduly coerce the innocent
• Key question centres on which types of prosecutorial inducements are inherently coercive?
• Corcoran v. Wilson, 651 F.3d 611 (7th Cir. 2011) stated there was no violation where the death penalty was dropped for waiving the jury trial
• Miles v. Dorsey, 61 F.3d 1459 (10th Cir. 1995) was about a defendant pleading no contest to protect family
• The Tenth Circuit stated these deals were not per se coercive, and courts assess is offer was in good faith
• Prosecutors can offer leniency to third parties with probable cause and plans to prosecute them

Third-Party Leniency Cases

• Mosier v. Murphy, 790 F.2d 62 (2d Cir. 1986) states that protecting a validly indicted wife/mother-in-law did not render a plea involuntary
• United States v. Marquez, 909 F.2d 738 (2d Cir. 1990) says protecting a wife is the same
• Raises question of whether a prosecutors' good faith be controlling standard?

“Wired” or “Package” Plea Deals

• Package deals involve co-defendants all getting better terms is all plead guilty
• Example: United States v. Caro, 997 F.2d 657 (9th Cir. 1993) stated these package deals pose risks of coercion, especially with co-defendants
• Package deals need careful scrutiny concerning voluntariness
• Rule 11 states prosecutors must disclose package deals to the courts
• United States v. Hodge, 412 F.3d 479 (3d Cir. 2005) had a similar requirement for careful court inquiry
• Joint trials can be cheaper and save time so there is prosecutorial justification
• United States v. Hernandez, 79 F.3d 1193 (D.C. Cir. 1996) suggests that trying one defendant may equal the time of all
• Can a plea be conditioned on not testifying against co-defendants?
• People v. Dixon, 939 N.Y.S.2d 199 (2012) Upheld such an agreement absent any indication co-defendants would have testified helpfully

Criticisms of Plea Bargaining

• Critics argue that plea bargaining coerces the waiver of fundamental rights
• Plea bargaining can convict the innocent as lenient deals are enticing
• Approximately 11% of DNA exonerations through the Innocence Project involved guilty pleas
• Around 15% of exonerations in the National Registry of Exonerations involved guilty pleas
• Fact-finding is short-circuited, producing outcomes not aligned with actual guilt
• Public confidence erodes as sentences appear overly lenient
• Sentencing can lead to disparities and discrimination
• Defendants with superior bargaining power receive better deals

Justifications for Plea Bargaining

• Efficiency is the main argument
• Without plea bargains, the system would be overwhelmed
• Banning plea bargains might result in secrecy
• Plea bargaining grants governmental flexibility
• Victims can be spared from testifying
• Government secures convictions surely and quickly
• Defendants mitigate trial risks and expenses
• Bargaining aids in allocating scarce resources; Fred Zacharias
• Empirical studies reveal that risk-neutral defendants often fare better by declining plea offers; David Abrams

Plea Bargaining vs. the Adversary System

• Judge Gerard Lynch suggests that plea bargaining resembles an inquisitorial model more than an adversarial one
• The assessment of plea bargaining should be on its own merits, not as a distortion of due process
• Máximo Langer suggested reforming and rethinking the practice as a form of prosecutorial adjudication

Missouri v. Frye, 566 U.S. 134 (2012)

• Frye's attorney did not state a plea offer, which later expired. Frye later pleaded guilty without it, receiving a harsher sentence
• Key legal issue: Was Frye denied effective assistance from counsel under the Sixth Amendment because failure to communicate it?
• There's a difference between cases focusing on bad advice about accepted pleas and the ineffective pre-plea representation that Frye tackled regarding missed opportunities
• States argued there is no offer to the plea, and since Frye admitted guilt, the offer was irrelevant
• The Court stated that over 94% of convictions are from guilty pleas, so reality check

Court Responses to Frye Case

• Plea bargaining is the criminal justice system, not an adjunct to it
• Defense counsel needs to represent clients competently in the plea process, as it is a "critical stage" under the Sixth Amendment
• The defendant must show a likelihood they would've accepted the offer, it would still be open and had been accepted by court/prosecutor, and the result was more favorable with (Strickland standard)

Lafler v. Cooper, 566 U.S. 156 (2012)

• Cooper wanted to accept a plea, his lawyer misadvised, resulting in a harsher sentence
• The lawyer's performance fell below an objective standard (first Strickland prong satisfied)
• The dispute centres if Cooper had to prove prejudice (second Strickland prong) for a fair trial? (dispute)
• Government's position is that it's cured by it
• Holding: The Sixth Amendment ensures effective assistance at all critical stages, including plea negotiations, also a fair trial doesn't "wipe clean" prior ineffective plea-stage representation
• The Strickland prejudice test (same as Frye) applies, that defendant must show the offer would've been accepted, and the result would've been more favorable

Commentary by Professor Stephanos Bibas

• There's a view that plea bargaining functions as a "gray market", with little court oversight
• Prosecutors dominate plea outcomes
• Defense counsel are the main gatekeepers but have drastically varied competence
• Courts have historically focused on trial rights, ignoring realistic trials
• The case’s significance rests in ScOTUS addressing how ineffective assistance impacts plea negotiations for the first time

Doctrinal acknowledgement

• Bad plea lawyering matters, even with a fair trial
• Majority (Kennedy) acknowledges pleas in modern justice
• Dissent formalist, focused on historical jury trials
• Courts are not likely to overturn many convictions due to low records, judicial reluctance, underfunded defense
• Creates incentives for prosecutors/defense attorneys to be better during plea talks

Pre-Indictment Plea Negotiations

• It's an open question whether defendants have the Sixth Amendment right to counsel before indictment during plea talks
• Turner v. United States, 885 F.3d 949 (6th Cir. 2018) stated no Sixth Amendement right is made pre-indictment
• United States v. Olsen, 998 F.3d 1158 (9th Cir. 2021) followed Turner's rule for no right until charges are filed
• Other Circuits: 3rd Circuit (Matteo v. Superintendent) might apply pre-indictment in some contexts
•  The 1st Circuit (Roberts v. Maine) and 7th Circuit (United States v. Larkin) suggests possible pre-charge applicability
• Split in circuits, some require formal proceedings and others suggest a functional approach

Bordenkircher v. Hayes, 434 U.S. 357 (1978)

• Defendant: Paul Hayes
• Original Charge: forged instrument worth $88.30
• The penalty was 2-10 years' imprisonment
• Prosecutor suggested 5 years if claimed guilty
• If Defendant Hayes refused, The Kentucky Habitual Criminal Act would've been used, triggering mandatory life
• Defendant's result: He rejected the plea and did not plead guilty, got indicted, and sentenced to life imprisonment
• The Kentucky Court of Appeals upheld the conviction
• The district court denied habeas relief
• The 6th Circuit reversed, citing Blackledge v. Perry, on vindicitive prosecution

The Issue of Case

• Issue is does prosecuting someone to seek harsher charges if they refuse a plea violate due process/Fourteenth Amendment
• No, the prosecutor's conduct didn't violated Due Process Clause

Court's Reasoning

• Notice of Risk: Defendant was already aware during plea talks
• Comparison to Blackledge and Pearce: Cases centered on unilateral retaliation by the state, this case arose between plea bargains
• Plea bargaining is legitimate and expected by all
• Due Process happens when punish someone that happens that happened here
• Prosecutorial Discretion: Prosecutors have large discretion as is lawful

Conclusion on Case

• Threatening a more severe indictment if plea talks didn't have prosecutorial vindictivness
• Brady involved coercion while Bordenkircher has a choice in plea talks
• Cases focus if defendants are truly able to make "intelligent" choices when faced with life vs 5 years
• Prosecutorial Vindictiveness: the presenter of the charges is not retaliation for a legal right

United States v. Goodwin (1982)

• No presumption on vendictivness to decisions
• Prosecutors may adjust charges, as Bordenkircher agrees charges do not lock

United States v. Armstrong (1996)

• There's two limits to constitutions
• Armstrong has high selective prosecution and requires clear evidence

Ricketts v. Adamson

• By Justice White
• Adamson enforced a 2nd jeopardy for a defense

Ricketts v. Adamson Facts and Issues

• Defendant Adamson was initially charged with first-degree murder for the death of investigative journalist Don Bolles
• Adamson agreed to plead guilty to second-degree murder due to Plea Agreement
• In return, he was going to testify in a specified prison sentence around 20 years
• If he refused, it was void and original terms were automatic
• Adamson testified leading with his convictions
• The accomplices' convictions were reversed and he refused to testify, so he got death
• The legal challenge was to argue it was a a Double Jeopardy defense since he was sentenced
• Since Arizona supreme court did not and the other did not, it went back to agreement
• The Issue does Adamson prosecuting for a breach of agreement with the Jeopardy clause

Ricketts v. Adamson Holding

• No, prosecuting an agreement did not cause Double Jeopardy Clause
• Reasoning: It normally does since at least it was second-degree because of first
• Adamson then waived that protection and chose

Double Jeopardy

• Plea was for testimony that he invalidated to reinstate
• Nature of agreement and voluntary choice was the argument
• Good faith rejected it for risk and could not escape

After Plea notes

• Prosecutor's action can involve violation of government while also is up to state court
• Pros waivers can waive legal council or Brady materials
• DoJ is allowed when there are restrictions
• DOJ waives Brady materials but ethically must be favorable while before also ethical duties

Appeal waivers

• Sentencing is allowed but may be unreviewed
• The court may vacate the sentence and charge

“Cooperation” in Plea Agreements

• It May not create crimes, can change terms, can deal with amendments.
• But overall, definitions create broad scope to challenge these ideas.

In a government with agreements:

• It may dismiss or forgo charges if one follows charges
• Note. There is some immunity that exists for it as well.

United States v. Singleton

• Singleton 1 had issues with offering lenience. Causing it to overturn
• Singleton 2 ruled doesn't apply to official activity
• However, majority rules did not include feds so it did not undermine the law.

Normative & Practical Questions Against

• Witness' may feel pressure and if balanced, then it lacks protection

Courts in the modern day:

• It has been claimed that due process has come up a lot on the matter .
• It has state ethical and ethical challenges