Plea Bargaining
Federal System’s sentencing guidelines – offender characteristics and severity of crime on a grid – reduces negotiations, less maneuverability by the parties
Texas – ADR brought to criminal process
Fed courts always require factual basis for plea on the record (and some states)
“Voluntariness” of Pleas and Related Matters
Brady – plea of guilt was entered to avoid the possibility of death penalty if he appeared before a jury (thanks to federal kidnap statute); statute was later changed
if you have competent counsel and plead guilty, you can’t later complain about change in law
this is a voluntary plea and therefore valid guilty plea
Rule 11 does not have a provision like the Texas statute that looks at competency
Enough that attorney makes a reasonable assessment; must be a serious misstatement of the law to get a guilty plea back
We look at the guilty plea objectively (actual words of D counsel)
Predictions about parole eligibility ok; misstatements of law could be ineffective assistance of counsel
Bordenkircher v. Hayes – P threatened to reindict if D did not plead guilty to original charge; convicted of the harsher, got life.
held DP was NOT violated
distinguished from Blackledge where D went to trial, found guilty, appeals, then P got indictment for felony after appeal; issue of statutory right to appeal
here just part of “give and take” of pretrial plea-bargaining process
if no plea has been entered in open court, give and take can continue to take place
mutuality of advantage, equal bargaining parties
court endorsement of non-interference during negotiation until plea entered and accepted
C says this underestimates government’s power, but still have to prove b.r.d.
Package Deal – multiple D’s P may say “either you all plead guilty or all go to trial” – most courts say ok
Trial Judge Participation – fed judges shall not participate in such discussions (Fed Rules); states vary
Frank v. Blackburn – state judge stated that would give D 20 years for a guilt plea, but instead gave him 33 year; held:  judge’s involvement not Constitutionally prohibited
Pleading Guilty Without Admitting Guilt (accompanied by claim of innocence) – hardest situation
Some attorneys will refuse to go forward
North Carolina v. Alford – to avoid death penalty, D pleas but maintains innocence despite evidence indicating guilt; judge accepted the guilty plea, held Constitutional
called an Alford Plea – express admission of guilt not required for guilty plea
judge can take position of not accepting guilty plea if D says innocent
must have factual basis for Alford Plea, even in state courts (normally not necessary in all states if just a normal guilty plea)
Texas DOES NOT accept Alford Pleas
Role of Trial Judge in Accepting or Rejecting the Plea
Ammidown – murder for hire, judge refused to accept husband’s plea; D tried and sentenced to life
it is not for the judge to second guess the prosecutor’s decision on what to charge
executive, not judicial decision
Necessity of Respecting a Bargain Once Made
Santobello –  new P takes over case and recommends maximum sentence even though old P had promised D that there would be no sentencing recommendation
when plea rests on promise or agreement by P, so that it is part of the inducement or consideration, D should get specific performance
notion of a contract
OOCC:  D entitled to specific performance when plead guilty had a deal that good behavior would lead to parole eligibility; new governor must comply with old’s promise
if D is scared judge going to give huge sentence, plead guilty to something that has a maximum statutory sentence
NC:  D got deal by promising to testify fully against others; others convictions were appealed and remanded and D refused to testify a second time; so state vacated the D’s plea, was retried, and sentenced to death.  Held:  D was required to testify fully under agreement
Role of the Victim – Texas Rule (g) victim participation, informing status of case