High court to rule on plea bargaining statements.

Ground rules for conducting plea bargaining could change dramatically after the U.S. Supreme Court rules on a California drug possession case it will hear next Term. At issue is whether statements made by defendants during failed plea bargaining can be used by prosecutors to impeach a defendant's trial testimony. (U.S. v. Mezzanatto, cert. granted, 114 S. Ct. 1536 (U.S. Apr. 18, 1994) (No. 93-1340).)

Generally, statements made during plea bargaining are protected. In this case - a drug trafficking case involving a sale made to an undercover police officer - the federal prosecutor at the outset of plea bargaining warned that the defendant's statements would not be used against him except to impeach inconsistent trial testimony. The defendant, Gary Mezzanatto, and his lawyer agreed to those terms. (Richard Carelli & Laurie Asseo, Court to Rule on Use of Statements Made During Failed Plea Bargains, Chi. Daily L. Bull., Apr. 18, 1994, at 1.)

The plea bargain failed, and the case went to trial, where the defendant claimed to be innocently delivering a package for a friend. On the defendant's cross-examination, the prosecutor questioned him about statements that contradicted made during the plea bargaining and later called to the stand an agent who had been at the bargaining session. (David F. Pike, Court to Rule on Proper Use of Plea Talks, Los Angeles Daily J., Apr. 19,1994, at 1.) Mezzanatto was convicted and sentenced to jail.

The Ninth Circuit Court of Appeals, however, ruled last July that a defendant may not waive the protection of Federal Rule of Criminal Procedure 11(e)(6), even with the advice of counsel. "To allow waiver of these rules would be contrary to all that Congress intended to achieve," said the court. (U.S. v. Mezzanatto, 998 F.2d 1452 (July 7,1993).)

In its appeal to the Supreme Court, the U.S. Solicitor General's Office pointed out that waivers like the one used during the Mezzanatto plea bargain are not unusual. They are used by federal prosecutors and the criminal division of the Department of justice and are "often an important element in the government's willingness to participate in plea discussions with defendants who proffer their cooperation."

The government noted that criminal defendants can waive their most fundamental constitutional rights, such as the right to remain silent. The government argued that denying waivers would enable defendants to tailor perjurious defenses insulated from challenge, a risk that "outweighs any risk of chilling a defendant's good-faith desire to engage in honest bargaining."

La Jolla, California, attorney Mark Lippman, representing Mezzanatto before the high court, said that those in Congress who drafted the federal rules "knew from history and experience that, if plea bargaining were to play meaningful part in the federal criminal justice system, discussions had to take place in a risk-free environment." He argued that, while defendants can waive some rights, they cannot waive "the mandatory language of any statute, assuming the terms are given mandatory effect." To do so would violate the separation of powers principle.

"The Justice Department, like all of us," said Lippman, "must operate within the framework of the law."