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Plea Bargain – Rejection; Recusal – Judge as Party

State v. Joshua D. Conger, 2010 WI 56, on certification; for Conger: Anthony L. O’Malley; Brief (State); Brief (Conger); Brief (Judge Grimm); Reply (Conger); Amicus (Prosecution Project, UW)

Plea Bargain – Rejection

A circuit court has post-arraignment authority to reject a proposed plea bargain that would result in amendment to the charge; State v. Kenyon, 85 Wis. 2d 36, 46-47, 270 N.W.2d 160 (1978), embellished and reaffirmed. The holding is efficiently summarized in the majority’s concluding paragraphs:

¶48 The first two questions presented by this case are answered by Wis. Stat. §  971.29 (which permits amendment of the charge without judicial approval only prior to arraignment) and established precedent concerning the circuit court’s inherent authority to reject a plea that is not in the public interest. Thus, a circuit court must review a plea agreement independently and may, if it appropriately exercises its discretion, reject any plea agreement that does not, in its view, serve the public interest. That review is analogous to the court’s independent determination that a factual basis exists for the plea and its independent determination pursuant to Wis. Stat. § 971.08(1) that the plea is made knowingly, intelligently, and voluntarily; such independent determinations are safeguards built into our system to protect the integrity of the plea process. When a court determines independently whether a plea is in the public interest, it is no more a reflection on the prosecutor’s integrity or judgment than when it determines independently that a factual basis supports the plea.

¶49 As for the factors a court may consider when it makes that independent determination, we reiterate, as other courts have done, that the public interest is a consideration that is not capable of precise outlines. Accordingly, the factors that a court may weigh when defining the public interest involved will vary from case to case. One appropriate factor among many may well be the viewpoint of law enforcement; a court’s consideration of that factor in its analysis does not automatically invalidate its ultimate decision with regard to the plea.

Brief background: Conger was charged with possession with intent to deliver, a felony. The DA agreed to a plea bargain modifying the charge to several misdemeanors. But the judge, who went so far as to solicit the view of the police drug unit (!) on the plea bargain (surprise! they’re generally opposed to felony-to-misdemeanor reductions) wouldn’t play ball. Having read this far, you know that the supreme court says he didn’t have to. On the one hand, judicial power to reject a plea bargain has been assumed all along, and in that sense the court doesn’t do more than acknowledge caselaw that’s been on the books for decades. On the other, this is the first opinion that purports to describe, and perhaps delimit, that authority. Let’s separate out a few of the larger points.

Timing. The prosecutor has nearly unfettered discretion as to whether to commence prosecution, ¶¶19-20 (“weighty and difficult decisions early in a prosecution … are left to the sole discretion of the prosecutor”).  Tension arises when the court’s jurisdiction is invoked, but when is that? Prior caselaw indicated that judicial discretion kicks in upon the very commencement of the prosecution, ¶22, but the holding today works a change, explicitly acknowledging “that the prosecutor’s unchecked discretion stops at the point of arraignment” under § 971.29, id. The concurrence removes any doubt on this point: “An underlying premise of Wis. Stat. § 971.29, which the majority identifies, is that the circuit court retains authority to approve or disapprove amendments, limited by Wis. Stat. § 971.29(1), which allows amendments without leave of the court when they are brought ‘prior to arraignment,'” ¶91. The majority doesn’t exactly explain this result, but it can only be that the prior caselaw described inherent judicial authority which has now been narrowly circumscribed legislatively. What this should mean, then, is that pre-arraignment negotiations are immune from judicial oversight. This isn’t to say that such things as a proper factual basis won’t get in the way, only that the before arraignment the judge doesn’t get to pass judgment on the plea agreement.

Review. Don’t count on an appellate court to bail you out if the judge rejects your plea agreement post-arraignment. The court makes it clear that the decision to reject a plea bargain is a discretionary one, therefore reviewed deferentially, ¶14. The majority puts it bluntly: “If the court considered the relevant facts and made no mistake of law, we will affirm,” ¶28. More need not be said.

Factors. A plea bargain may be rejected if, in the judge’s eyes, it fails to “serve the public interest,” ¶3. The court acknowledges this standard to be a “broad” one (hopelessly squishy might be more accurate; the court itself “emphasize(s) that the evaluation process is more of an art than a science,” ¶35). And the court musters a number of factors informing the art of rejecting a plea bargain, ¶¶29-36. They will not be repeated here, except in two respects, one intriguing, the other vexing.

  • Prosecutorial weight. How much weight should the judge give the prosecutor’s decision to ratify the plea agreement? The Chief, concurring, explains that “the majority stresses the significant weight a circuit court should give to the prosecutor’s recommendations as encompassed in a plea agreement,” ¶62. This explication is helpful because the majority is a bit less than explicit, but the concurrence is undoubtedly correct in its assessment.

  • Police input. This is a real head-scratcher. The majority says that the trial court clearly intended to reject the agreement before seeking police input, ¶42. Why, then, even reach the issue? Why not wait till a case actually presented the problem on its facts? But reach the issue the court did, and its entirely avoidable discussion is deeply problematic. Enough so to warrant separate treatment, immediately below.

One troubling aspect of the decision is the almost off-handed way the court upholds police input on whether the plea agreement is in the “public interest,” ¶¶37-41. The court poses the right question (“was the investigating officer in effect an agent of the state”) but reaches the wrong conclusion. Or, rather, doesn’t even bother trying to answer the question, except implicitly through the result of upholding “consideration of law enforcement’s views” (which the court in its very next breath informs us wasn’t really a consideration after all). Pity. Fact is, the court has on a number of occasions recognized that the investigating officers in a given case are in effect agents of the prosecutor, State v. Media DeLao, 2002 WI 49, ¶24, and cites. Maybe the “drug unit” whose opinion was sought had no role in investigating Conger’s case. But if that’s so, then it becomes harder to see why they get to weigh in on something they don’t really know about. And if they did investigate Conger, then why weren’t they agents? Are police investigators prosecutorial agents for purposes of prosecuting the case but not for stymying its resolution? A bit of a conundrum. And for better or worse we’re not quite done.

In the fourth amendment context at least, the Supreme Court has long recognized the virtue of “requiring that … inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime,” Johnson v. United States, 333 U.S. 10, 13-14 (1948). Well, that “often competitive enterprise” now may inform the awesome judicial decision of how to resolve a case. More: if that competition was sufficient for the Court to stand up and take notice some decades ago, consider the problem now. “U.S. Attorney General Eric Holder today announced the award of more than $5 million in FY 2009 funds for the State of Wisconsin to maintain or increase public safety in the state.” Guess what? Some of that money goes to “allocate resources to multi jurisdictional drug enforcement task forces.” Now, it’s at least possible that the more cases that get resolved as felonies instead of misdemeanors impacts funding. And if that’s so, then whose interest is the drug unit really advancing when it expresses general opposition to clearing misdemeanors instead of felonies? We’ll leave it there for the time being. But keep in mind otherwise that the court simply doesn’t explain why a local drug unit may speak in the “public interest,” which means that no limits have been set either on just who may give input. Let your imagination be your guide. No reason, for example, any 501(c)(3) charitable organization can’t weigh in in favor of the plea bargain.

Judicial participation in the plea bargain. It’s off-limits, State v. Corey D. Williams, 2003 WI App 116, but the court apparently sees rejection of a plea bargain as compatible with that prohibition. Maybe, but the line is becoming awfully blurred. A judge may express “inten[t] to exceed a sentencing recommendation in a plea agreement and offer[] the opportunity of plea withdrawal,” State v. Miguel E. Marinez, Jr., 2008 WI App 105; a form of post-plea judicial rejection really. And now we have pre-plea rejection. It is something of a fiction to say that the judge is a non-participant in this process. But a process it is, and for better or worse, the process is more defined today than it was yesterday. Some judges are philosophically opposed altogether to plea bargaining. E.g., State v. Windom, 169 Wis.2d 341, 354, 485 N.W.2d 832 (Ct. App. 1992), conc. op. (“by weakening deterrence, the practice encourages criminality and, accordingly, contributes to the influx of criminals that clog our courts”); “Echoes of a Muted Trumpet” (“Although much of the time plea bargaining gives defendants great deals, letting them escape just punishment for many or most of their crimes, there is another side to plea bargaining that is less well-known — extortion.”). If nothing else, a fundamental premise of their objection — judicial oversight of plea bargaining — has been greatly strengthened. We will just have to see over time whether the net effect of this strengthening is an emboldened form of oversight that limits the practice of plea bargaining.

Recusal – Judge as Party

A judge’s appearance as a party in a case over which he presides requires recusal. The trial judge in this case was named by the court of appeals as “intervenor-respondent,” in order to secure adversarial argument on the order appealed from his court (the defendant and State essentially agreeing the order should be reversed). This isn’t enough to make the judge a party, thus isn’t enough in and of itself to necessitate his recusal on remand. However, the record on this potential issue is undeveloped and the court directs that recusal be taken up on remand, ¶¶44-47.

Sounds pretty obscure and let’s hope it stays that way. Judges have been known to seek counsel to argue in favor of the judge’s order on appeal, especially if they’re dissatisfied with how the AG or DA is arguing the case. Hasn’t happened often, but it has happened. Not in this case, though, where the court of appeal itself orchestrated the trial judge’s intervention. That alone was enough to give the court pause, and should in turn give a trial judge second and third thoughts about engaging counsel to argue the case on appeal.

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