Recently, a judge sitting for sentencing in a child endangerment case reviewed a PSI, and, based on the defendant's recitation of events in the PSI, told an ADA to dismiss the case, because he "didn't see the crime".

The case had taken months to work out. There were issues, such as a possibly forced recantation of a child victim regarding indecent exposure by the mother's boyfriend (who allowed the predator total access to the child despit the child's complaints of his activity). That being said, the woman was represented by a very competent attorney with total access to the file, the woman who pled guilty was more than competent to enter the plea, and the plea bargain was quite generous.

Needless to say, the case has not been, and will not be dismissed.

I really have two questions:

1. In 21 years of prosecution, I have never seen a judge take it upon himself to tell an ADA to dismiss a case. I have never seen a judge take the defendant's statements in the PSI at face value in such a situation. There was no discussion with defense counsel present to discuss any of the judge's concerns. Do any of you feel, as I do, that this sort of judicial activism is totally outside the realm of proper judicial conduct?

2. Can anyone cite me the cases that have held that a criminal defendant has the right to plead guilty pursuant to a plea bargain, even though there may be some claim of actual innocence? I know I am a dinosaur, and maybe I am remembering old law. My research abilities are a bit hampered with the resources on hand. Either I can't find a case to say that I am right, or I am looking in the wrong place.

Thanks!

As to Question 2: The case you are thinking of is: North Carolina v. Alford - or an "Alford Plea"

As to Question 1: I have never had a Judge tell me directly what to do on a case, I have had a few that have commented, with all parties present, that I had an "uphill battle" or "maybe the State has overcharged this" or something like that. I do think the Judge has a right to reject a plea agreement for any reason and I have asked withdraw plea offers when the defendant denies their guilt in a PSI interview, but I do not think the Judge has any business commenting directly on what the State or a Defendant should do.

In you case, if the Defendant withdraws his plea, goes to trial based on the Judges comments, and is convicted, surely he will argue that he had ineffective assistance of Counsel (the Judge) for taking it to trial.

I found Alford after posting this question. My understanding is that, even with a claim of innocence, the judge need only ascertain that there is a sufficient factual basis for a finding of guilt. It is my further understanding that this can be as simple as a statement by the defendant's counsel that, in his professional opinion, there is sufficient evidence, deapite his client's claim.

Thanks for the help. I know judges can reject pleas for any reason, and, had he rejected the plea, more power to him. The fact is, he made no inquiry into the matter, and made counsel for both sides look like idiots.

I agree with you assessment of ineffective assistance. That's not the first time I have seen a judge do something to "help" a defendant, only to have it blow up in the defendant's face. Do judges really think prosecutors don't take their duty to "do justice" seriously, and that all defense counsel are incompetent? I know they become "God's Holy Annointed" in their black robes, but................

Judges are supposed to remain impartial until the point that they rule on a matter before them. In the course of guilty pleas, some judges are tempted to enter the bargaining and express their personal opinions. Of course, they almost always have some previous bias and certainly have the least amount of information about the case. More importantly, they are violating their ethical obligation to remain impartial.

In federal court, the Rules of Procedure expressly prohibit the judge from becoming involved in plea bargaining. Unfortunately, no such express rule exists in state procedure rules. However, the Court of Criminal Appeals, relying on ethical national and state ethical standards, have clearly communicated in their cases that judges should not participate in plea bargaining or express an opinion about a case except through a formal ruling when requested.

Prosecutors can help maintain these proper lines of separation by objecting when a judge steps across the line. While it might make for an uncomfortable moment in court, in the long run you will have a better courtroom experience if the judge stays out of the lawyers' business until asked for a ruling.

I agree - one should object, and I do object when the judge crosses the line. Sometimes, a judge is approachable in chambers to discuss, generally, such matters (not relating to a particular case!), but sometimes he or she is not.

I have seen, too many times, the unfortunate unraveling of events resulting from a judge being offended that one dare question his actions. Too often, a judge can become vindictive toward the attorney who dares. Justice suffers.

Of course, Justice suffers more from silence.