In the most recent Texas Prosecutor, I wrote a column criticizing judicial plea bargaining. Do you have judicial plea bargaining in your jurisdiction? Is it a problem?

Yes and Yes! 'nough said in a public forum!
Lisa

The feds solved the problem by imposing a strict rule prohibiting judicial plea bargaining. Would you support such a state rule?

Yes
Yes

and Yes

Ditto!

Such pith. You guys and gals wouldn't be nervous about some judge reading this thread, would you?

Which is the bigger problem, the judge thinking the recommendation is too light on a defendant, or too hard? As one judge in our county puts it (actually 2, but no names) "it's good to be the king"

John, I am glad that you addressed the practice of some judges who get involved in plea negotiations by espousing the policy that they will not approve a prosecutor's recommendation (i.e., "there is no plea bargaining allowed in my court"). Particularly where the result of a bench trial is not a binding judgment, such practice is reprehensible. So far as I can tell, that practice is already illegal or at least it should be made so.

Well, the prosecutor could prevent it from happening by refusing to agree to the waiver of a jury trial. Sometimes, we just have to make judges mad.

Don't they have enough jury trials in Tyler already? The idea that the plea has not been accepted or approved once the judge pronounces the penalty is what has to change. Or I guess the alternative is as you suggest- once the judge has heard the facts and determined a proper penalty she must automatically recuse herself if she permits the case to go back to square one.

The idea is not to increase the jury trials. The idea is to signal to the judge that she/he does not have the authority (ethically or legally) to plea bargain with a defendant. What a wasteful procedure it is to have a court trial, sentencing and then a "do over" because the defendant is unhappy with the result. I simply don't know of any other state or federal jurisdiction that permits such a procedure.

In a well-written dissent, Judge Cochran attacks the concept of judicial plea bargaining and notes the manner in which it strips the prosecutor of his/her duties. Read the case.

I hope that prosecutors in Texas will take heed and refuse to waive the right to a jury trial in jurisdictions that have judges who attempt this form of plea bargaining on their own.

Wonder if it would be worthwhile to try to get a bill passed prohibiting such a process. John? Shannon? Your thoughts?

While not expressly saying so, doesn't the inclusion of footnote 23 in Judge Cochran's opinion pretty much make clear that Judge Kent's practice is unconstitutional (i.e. contrary to law)? Short of refusing to waive trial by jury, doesn't Bingham's office still have the choice of demanding that judgment be rendered once the punishment decision of the court has been announced. Does the judge truly have unfettered discretion to permit withdrawal of the guilty plea at that point? And where does a defendant get the authority to demand a trial by jury at that point? Cf. Hernandez, 885 S.W.2d at 601.

At least this illustrates the lack of meaning of administering an oath to the defendant (which I have mentioned elsewhere), since Rule 410 now protects the use of perjured testimony.

On second thought, why would a prosecutor not like being relieved of any involvement in plea negotiations? Federal prosecutors don't seem to mind so much. But, I would have to think almost any rational person would agree it is hard to see what "public-policy rationale is served by insulating . . . freely given sworn testimony from any use in future criminal proceedings."

[This message was edited by Martin Peterson on 05-20-04 at .]

I think it would appropriate to seek some rule that expressly prohibits judicial plea bargaining, including the process used by Judge Kent in Smith County. Would it be better to seek an amendment to the rule of judicial conduct, an amendment to the rules of evidence or the code of criminal procedure?

What argument could a judge make against such a law, given its existence in the federal courts and the clear ethical violation of judicial plea bargaining?

Anyone know if other states have legislated against this practice?

I would vote for amending the Code of Criminal Procedure, although it is already vast and often messy. The judicial code seems to be foreign to many attorneys and the issue is really one of procedure rather than evidence. It just seems the right location to find such a matter. Of course, if a provision could also be added to the judicial code, go for that too!

In an ideal world, perhaps Judges would realize that they are the referees and and not players in this game of criminal justice.

That said, we obviously do not live in an ideal world.

Having had the opportunity to witness Judge Kent's 'unique' approach to judicial discretion first hand, let me tell you that this is just the tip of the iceburg.

Yes, we retain the ability to refuse to waive a jury trial, but that is a card that in all likelihood can only be played once.

Judges, as we are all too aware, hold a grudge. And this judge in particular, would go even more out of her way (than she already seems)to hold such an action against the State in all manner of ways. Matt Bingham, whom I can proudly say I have had the pleasure of working with, knows this all too well. He has (and the Hon. Jack Skeen before him), for all too many years, made the best out of a bad situation.

As I understand the current judicial regulatory scheme, there are only two enforcement mechanisms: the Board of Judicial Review (or whatever they call themselves), and the electoral process.

The Board, as we shall hereinafter refer to it, seems only to be concerned with Judicial Conduct if it involves the judge sleeping with a defendant (granted, a bit of an exaggeration, but still basically truthful). Judges making blanant errors in the application of the law seem not to concern them.

The electoral process is also fraught with danger. Judge Kent, as you may or may not be aware, proudly proclaims that she doesn't allow plea bargains in her courtroom. She does this to convince the voters of Smith County that she is in fact tougher on crime than the elected D.A. And for as many years as I can recall, she has been quite successful in this deception.

The only real solution, I fear, is the legislative process. The Prosecutor's authority and powers MUST be strengthened. The Judge's role MUST be more clearly defined. Thankfully our lobby is usually much better than theirs

(I see by the red light that my time on the soapbox has expired, so I thank you and say good day)

Lee, thank you for taking the time to weigh in on this topic. We don't mean to highlight Smith County, as many counties have problems with judges that plea bargain with the defendant. But, Smith County is serving as a good example of what can happen when prosecutors fail to fight to preserve their independent authority.

I also appreciate your willingness to provide our web readers with a personal point of view from someone who has seen the problem in action. This user group was established to encourage this sort of exchange of ideas, and you have made a large contribution in that effort with your posting.

Here is a new thought, though. Why does a DA let a judge determine whether plea bargaining can take place? A judge can only say she won't accept a plea bargain. She can't prohibit the state and prosecutor from negotiating an agreement.

And here is what I mean. In the Bowie case, the judge sentenced the defendant to 50 years in prison and a $5,000 fine. There was nothing preventing the state from announcing at the beginning of that hearing that the defendant and state had reached an agreement on punishment (let's say the agreement was 40 years in prison).

Now, the hearing, regardless whether the judge wants to accept the recommendation, must at least follow the laws related to hearing a negotiated plea. And, if the judge ultimately rejects the recommendation, the defendant then lawfully has the right to withdraw the guilty plea, and his statements during the plea can't be used against him. This happens every day in many courtrooms.

On the other hand, the pressure is then returned back to the judge to bust the plea in a public forum. And, then, the prosecutor certainly would be in his rights to express an opinion on the judge's decision.

If a prosecutor is making recommendations that are within the range of sentences of what a jury might impose, then the judge should be challenged on rejecting that recommendation. I think a prosecutor could very well challenge the concept of refusing to accept any plea recommendations. Frankly, it may be a proper subject for recusing the judge as she is saying that she has prejudged the recommendation without even hearing it.

What do you think?

Your premise is valid, but rests on one key inherent assumption: that the Judge follows the other procedural requirements in terms of plea hearings.

Granted, it has been quite some time since I have haunted the halls of the Smith County Courthouse, but as I recall, the State is rarely given an opportunity to open its mouth in these situations (again, slightly exaggerating for comedic effect).

It should not go unnoticed that Judge Kent, for all her many perceived possible 'quirks,' does frequently hand down some mighty stiff punishments. The Bowie case is a good example, where she originally handed down 50 years and he was subsequently sentenced to 30 years by a Dallas County Jury (How this reflects on Dallas County Juries is a subject for a WHOLE different topic)

Were the situation somewhat changed, I'm sure that more aggressive steps would have have been taken long ago. While this in no way endorses this type of procedure, we must remember that our end goal is justice for the victims, and that our frustration with the judiciary overstepping their authority must be tempered by this mission.

Another consideration is that we can't start thinking of the judiciary as 'the enemy.' Focusing on them (rightly or wrongly) takes our already overburdened attention away from the REAL task at hand: convicting and punishing the guilty. Does the judiciary make this job more difficult sometimes? Perhaps, but each jurisdiction will have to answer that for itself. We can not, and must not try to take on too many battles at one time.

Believe me, I'm no great fan of the idea of our legislature getting their grubby little hands on this issue. I just don't see any other option. Power struggles and politics should have no purchase in the courtroom. New procedures, backed by good old fashioned 'black letter' law is the ONLY answer I see.

But hey, that's just me . . . .