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Criminal Law Section to host criminal justice symposium.

How involved should judges be in plea bargains?

Is it fair for the same judge who approves a plea offer, and even nudges the defendant to go for it, to turn around and sentence the defendant to a much harsher sentence because he chose to go to trial instead?

Are plea negotiations essential to a smoothly running court system? Or should pleas be abolished because they put pressure on innocent people to "plead out" just to get their criminal case over with?

Those hotly debated questions will be the subject of the First Annual Gerald T. Bennett Criminal Justice Symposium sponsored by the Criminal Law Section. Held in conjunction with the Selig Goldin luncheon, the symposium titled "Plea Bargaining: Practical Necessity or Structural Flaw?" will take place at noon on Friday, June 27, at the Bar's Annual Meeting in Orlando.

Continuing legal education credits are pending, and the cost is $37. (Look for the registration form in the May issue of the Bar Journal.)

Debating the pros and cons of pleas will be Milton Heumann, professor and chair of the Department of Political Science at the State University of New Jersey at Rutgers, and Albert Alschuler, professor of law and criminology at the University of Chicago Law School.

Heumann takes the position that plea bargaining is not a function of case pressure and has been part of the courts for the past century, existing in both high- and low-volume courts. Other pressures -- political and social -- lead to the expectation and necessity of plea bargaining, he argues.

On the other end of the spectrum, Alschuler argues that "plea-bargaining, a system of split-the-difference, is well-designed to produce conviction of the innocent. The practice makes an offender's sentence depend not on what he or she did but on a tactical decision irrelevant to any proper objective of criminal proceedings. Bargaining deprecates the value of human liberty and the purposes of criminal Punishment by treating these things as commodities to be traded for economic savings."

It's an especially timely topic for Florida, in light of an April 10 Florida Supreme Court opinion, written by Justice Barbara Pariente for the majority, that settles conflicting cases on the "presumption of judicial vindictiveness" when a defendant who rejects a plea and gets sentenced to a harsher sentence after trial (combined cases SC01-2083 of Omar Wilson vs. State of Florida, and SC01-2333 State of Florida vs. Dexter Byrd). Another recent case addressing a judge's ethical role in plea bargaining is the June 22, 2000, opinion in State of Florida vs. John Warner, case no. SC94842.

"The topic of plea bargaining presents several complex issues -- from constitutional law questions to public confidence in the integrity of the justice system," said Criminal Law Section Chair-elect Melanie Hines.

"We won't be able to cover them all, but we believe this discussion to be particularly timely for practitioners of criminal law in Florida. Based on recent Supreme Court rulings, all the participants -- judges, prosecutors, and defense lawyers -- are examining the principles and methodologies used in this process. The audience will be invited to participate with questions and comments. We look forward to a lively debate."

A lively debate unfolds in the pages of the high court's opinion addressing how involved judges should be in plea bargaining while maintaining neutrality.

In Byrd, the judge told the defense lawyer: "I think 30 years is a steal. He certainly won't get that law if he goes to trial. His record is horrendous."

The defendant, Byrd, chose to take his chances at a trial, the jury convicted him, and that same judge sentenced him to 75 years in prison.

On appeal, Byrd argued that "when the defendant rejects the court's offer and is subsequently convicted, if the court exceeds its former offer, a presumption of Vindictiveness arises and such presumption was not overcome in this case."

A majority of the Fifth District's three-judge panel agreed and said the remedy was to enforce the rejected plea offer.

The Florida Supreme Court agreed in part and disagreed in part.

"Once Byrd rejected the plea offer, he had no constitutional right to the offered sentence," the justices agreed. "... In cases where an unrebutted presumption of judicial vindictiveness arises, we condude that the appropriate remedy is resentencing before a different judge."

But the justices disagreed there is a presumption of vindictiveness whenever the trial judge participates in plea negotiations and gives the defendant a harsher sentence after a trial or hearing.

In the second combined case, Omar Wilson said he wanted to enter an open plea and admit to violating community control. When the defendant and his fiance wanted to address the court, the judge said: "Court withdraws the offer" and set the case for a final hearing. When Wilson did not want to accept the court's offer of 128 months, the judge said: "And my advice to you was the court's offer was the bottom of the guidelines and in my opinion, you should have taken it."

At the end of the hearing, the judge found that Wilson violated community control and sentenced him to a mid-range guidelines sentence of 150 months in prison.

On appeal, the Fourth District held the case should be remanded for resentencing, but rejected the argument that his. "original sentence was vindictive and, therefore, he should, on remand, be resentenced by a different trial judge."

The Supreme Court concluded that in Wilson's case, "It is not simply the increased sentence that gives rise to the unrebutted presumption of vindictiveness. Rather, it is the judge's comment that Wilson should have accepted the offer, coupled with the increased sentence imposed shortly thereafter, and the absence of any explanation for the increase that gives rise to the unrebutted presumption of vindictiveness."

The high court quashed the Fourth District's decision in Wilson to the extent that it holds that no unrebutted presumption of vindictiveness arose. As in Byrd, the appropriate remedy in Wilson is resentencing before a different judge, the justices wrote.

In a specially concurring opinion, Justice Peggy Quince said, "It is my firm belief that trial judges should not participate in the plea bargaining process... .These cases are prime examples of what happens when the trial judge, the neutral arbiter, enters into the plea bargaining process."

Justice Charles Wells, concurring in part and dissenting in part, wrote: "I believe that the majority's decision will severely undermine the reasoning of the Warner decision and will result in trial judges wisely not making any pre-plea statements. This will be to the detriment of defendants."

Justice Fred Lewis, also concurring in part and dissenting in part, wrote: "Judges are to act as information centers only. The limited Warner holding was intended to allow a judicial officer to provide information to a defendant and answers to his or her questions. Clearly, the judge may not initiate the bargaining process or make statements that could in any way be construed as actual negotiation. The judge must, at all times, remain a neutral arbiter of justice."

At the June symposium, Miami lawyer H. Scott Fingerhut will discuss the Florida perspective on plea bargaining from a practical standpoint, including a discussion of the Florida Supreme Court's recent decisions on the role of a trial judge in the process. Fingerhut has served as a prosecutor and a defense attorney and is a visiting instructor of criminal justice at Florida International University and an adjunct professor at the University of Miami School of Law in the litigation skills program.
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Author:Pudlow, Jan
Publication:Florida Bar News
Date:May 15, 2003
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