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U.S. Supreme Court: Federal judge’s participation in plea discussions is subject to prejudice determination

United States. v. Anthony Davila, USSC No. 12-167, 6/13/13

United States Supreme Court decisionreversing United States v. Davila, 664 F.3d 1355 (11th Cir. 2011) (per curiam)

Rule 11(c)(1) of the Federal Rules of Criminal Procedure provides that parties may discuss and reach a plea agreement, but that the court “must not participate in these discussions.” In this case there is not dispute that a Magistrate Judge violated Rule 11(c)(1) by improperly participating in plea discussions by engaging in “repeated exhortations” to Davila to “go to the cross” and “tell it all” in order to obtain a more favorable sentence, comments that “were indeed beyond the pale.” (Slip op. at 3, 10). The question is this:

Did that misconduct in itself demand vacatur of Davila’s plea, as the Eleventh Circuit held, or, as the Government urges, must a reviewing court consider all that transpired in the trial court in order to assess the impact of the error on the defendant’s decision to plead guilty? We hold that the latter inquiry is the one the Rules and our precedent require. (Slip op. at 10).

Davila argued that the conduct banned by Rule 11(c)(1) differs from violations of Rule 11 provisions establishing plea colloquy requirements that come into play after a defendant has agreed to plead guilty and are procedural, designed to ensure that a defendant’s plea is fully informed and intelligently made. These errors are subject to Rule 11(h), which provides that “[a] variance from the requirements of this rule is harmless error if it does not affect substantial rights.” By contrast, Rule 11(c)(1)’s prohibition on judicial participation in plea discussions operates before a defendant has decided whether to plead guilty and serves the more basic purpose of avoiding a pressured or coerced plea; a violation of this Rule “inevitably and incurably infect[s]” the whole process. (Slip op. at 10-11).

The Court disagrees this difference makes Rule 11(h) inapplicable to Rule 11(c)(1) violations. Citing the plain language of Rule 11(h) along with notes from the federal Judicial Conference Advisory Committee that drafted Rule 11(h), the Court concludes:

neither Rule 11 itself, nor the Advisory Committee’s commentary on the Rule singles out any instruction as more basic than others. And Rule 11(h), specifically designed to stop automatic vacaturs, calls for across-the  board application of the harmless-error prescription (or, absent prompt objection, the plain-error rule)…. (Slip op. at 12).

A concurrence by Justices Scalia and Thomas agree with this conclusion, but based only on the “crystal clear” text of Rule 11(h): “That is the beginning and the end of this case. We should not rely on the notes of the Advisory Committee to unearth Rule 11’s alleged design,…” (Concur at 1).

A predictable outcome (and one predicted before and after oral argument), given the majority of circuits rejected the Eleventh Circuit’s approach. And as our post on the cert grant anticipated, this decision appears to have no impact Wisconsin practitioners, whether in state or federal court.

The Seventh Circuit, like most other courts, previously held that Rule 11(c)(1) violations are subject to Rule 11(h)’s harmless error analysis. United States v. Kraus, 137 F.3d 447, 457 (7th Cir. 1998). Thus, this decision doesn’t change the circuit’s approach. Note, though, that the Court does not decide whether Davila’s claim should be judged under the harmless error standard or plain error standard. There was no objection to the Magistrate Judge’s conduct, and as the Court explains (slip op. at 7-9), the lack of objection would ordinarily require a plain error approach. United States v. Vonn, 535 U.S. 55 (2002); United States v. Dominguez Benitez, 542 U.S. 74 (2004). The Court, however, leaves that question to the Eleventh Circuit on remand. (Slip op. at 14).

As for Wisconsin state courts, our post explained we have long had our own locally-grown, judge-made prohibition against judicial participation in plea negotiations, violation of which is essentially per se prejudicial. State v. Wolfe, 46 Wis. 2d 478, 175 N.W.2d 216 (1970); State v. Williams, 2003 WI App 116, ¶¶12-19, 265 Wis. 2d 229, 666 N.W.2d 58. The Court’s decision is based on Rule 11 and associated federal precedent, so it doesn’t affect our rule.

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