OK, I hate to see a judge plea bargain with a defendantor his/her attorney. I think it is unethical, interferes with the constitutional authority of the prosecutor, and demeans the impartial appearance of the court. In federal court, it is actually expressly against the Rules of Procedure. What about such a rule for state courts?

I understand that about 10 years ago, the then DA of El Paso refused all plea bargaining, and that judges would discuss possible sentences with the defendant's atty in order to move the docket. In a case like that, I have no problem with the practice.

Why don't you have a problem? Do ethics depend on convenience and efficiency? If so, it would be far easier to only have trials for the plausibly innocent.

Judges are to remain importial until asked to make a decision.

And, there is no right to a plea bargain.

A judge and defense atty. can use hypotheticals to get an idea what a defendant will get if he pleads guilty, without compromising the judge's impartiality.

For example, the def. atty. might ask, "what do you usually give for a plain vanilla fel. D.W.I., where there was no accident or resistence, and the def. gave a breath test and he blew a .12?"

The judge could safely reply, "I usually give a $1,500 fine, 10 years probated for 7, 400 hrs. of CSR, the usual DWI probation condition, 15 days in jail, and SAF-P."

In a criminal justice system which gives defendant's the right to a jury trial, plea bargaining is absolutely necessary or the system will collapse. If a prosecutor shirks his responsibility and won't make reasonable offers, then I think judges have every right to try to encourage pleas to the court by giving the def. an idea what he can expect if he pleads guilty.

Plea bargaining is a privilege, not a right. And, even if it were a right, it comes from a prosecutor, not a judge.

Hypotheticals are wrong for a jury, and they are wrong for a judge. Can you imagine a court that would permit a defense attorney to ask a jury panel what they would give in a hypothetical situation. The judge is no more special.

Next to stopping Municipal Judges from entering Default findings of Guilt instead of issueing warrants, my biggest struggle in this job, not unlike my job as Cheif Deputy in Lubbock, is getting my judges out of plea bargaining. Canon 3B (10) prohibits a judge from commenting on a pending matter b4 the court Canon 5 still prohibits pledges or promises on cases. And of course ex parte communication is prohibited for both the judge and defense counsel. Judges must get out of the prosecution business.
#1 They suck at it.
#2 By showing that bias and predisposition to be predispositioned they destroy public trust in their neutrality.
Just my irritated Rantings
Clay

Strongly opposed or not, Professor Dix says "post-agreement participation by the trial court seems an inevitable consequence of the requirement that the agreement must be . . . approved by the trial court." sec.34.106, Texas Criminal Practice and Procedure, 43 Tex.Prac.Series at 400. He adds: "otherwise the parties must guess as to the objection the court has to the agreement and attempt to renegotiate an agreement that conforms to their best guess or else try the case without really knowing a trial was necessary." Judicial participation to this extent may still be as distasteful as hell, but it seems to make sense to me. Any other participation is a violation of judicial ethics canons and illegal according to the CCA. McDonald , 662 S.W.2d at 7. My big question remains, why give the judges the responsibility to scrutinize the plea agreement and reject it if the court finds it unfair or improvident from the public's or defendant's standpoint? They only truly do this on occasion and even then are ill-equipped.

Them's fightin' words, here in Williamson County. Our judges do not plea bargain. They do review our recommendations and wait for a PSI before announcing their decision. Not frequently, but just frequently to show they are paying attention, they bust a plea agreement. And then they leave it to the parties to come up with a different recommendation or have a trial.

It works very well, thank you. I realize lots of jurisdictions don't have this happening. But it could.

When I was a prosecutor in Harris County, then DA Johnny Holmes announced that judges should not be plea bargaining and prohibited the prosecutors from going back in chambers to assist judges in this unethical discussion. It went a long way toward helping eliminate the judicial bargaining.

Take a stand. The worst that can happen is you are held in contempt, get your picture in Texas Lawyer, and meet a bondsman.

When the bargain is "busted" the defendant takes it to be an indication he must agree to a harsher punishment in order to avoid a trial. The practice may be unfair to the defendant, but the State generally benefits from it (unless you think the State benefits more from a full-blown trial). If the court should bargain down (rare in my experience), then I guess I'd be incensed. Bargaining in the dark in round two may work well enough, but when both parties have expressed an interest in settling, why not get the deal struck as quickly and easily as possible. If I pass thru Georgetown am I going to be arrested for disorderly conduct? (Remember Dix said it, not me).

Even experienced judges are tempted to engage in judicial bargaining. The most extreme example ever reviewed by the Fourth Circuit is found in United States v. Bradley, Jones, and Bennett, Nos. 02-4390, 02-4393, 02-4402 (07-25-06).

Some interesting passages from the opinion:

"Even if, as the Government claims, it could have presented uncontroverted evidence of the Defendants' guilt if the trial had proceeded to verdict, we cannot refuse to notice the repeated judicial intervention in the plea negotiations.
The fact is, the jury rendered no verdict in this case; there has been no 'fair and reliable determination' of the Defendants' guilt."

"[t]he unequal positions of the judge and the accused, one with the power to commit to prison and the other deeply concerned to avoid prison, at once raise a question of fundamental fairness. When a judge becomes a participant in plea bargaining he brings to bear the full force and majesty of his office. His awesome power to impose a substantially longer or even maximum sentence in excess of that proposed is present whether referred to or not."

I know professor Dix is an acknowledged academic authority on criminal law, but has the man ever practiced criminal law in a significant and meaningful way? By that, I mean, not signing on as a lawyer to a dream team representing some defendant, but has he actually carried on the practice of law as a defense attorney or prosecutor for any length of time in his career? Has he ever actually tried a case? Or cases?

Just curious.

I mean, I could read about catfish noodling for all my life, read books associated with the subject, watch TV shows about it, talk to folks who had done it, and even watch folks doing it. But unless I have actually experienced something in a meaningful way on more than one occasion, I would hardly be considered an acknowledged authority on it.

Gee, Greg, have you been pondering this thread for 4 years and only just now formed an opinion?

I musta been in trial when it came around before, JB.