Whether the court of appeals erred in holding that any degree of judicial participation in plea negotiations, in violation of Federal Rule of Criminal Procedure 11(c)(1), automatically requires vacatur of a defendant’s guilty plea, irrespective of whether the error prejudiced the defendant.
Lower court opinion (United States v. Davila, 664 F.3d 1355 (11th Cir. 2011) (per curiam) )
This case appears to be of limited import to Wisconsin practitioners, whether in state or federal courts. 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.” Rule 11(h) provides that a variance from any of the requirements of Rule 11 is subject to harmless error analysis. The 11th Circuit decided a magistrate judge’s comments to Davila violated Rule 11(c)(1). The court then said that “while other circuits recognize harmless error in the context of judicial participation [in plea discussions], we do not.”
The government petitioned for certiorari, arguing that the 11th Circuit’s approach is inconsistent with Rule 11(h) and the approach of the majority of other circuits. Included in that majority is the 7th Circuit, which inquires into harmlessness as a prerequisite to vacating a guilty plea on grounds of judicial participation in plea negotiations (though doing so with a sense of the difficulty of the inquiry). See United States v. Kraus, 137 F.3d 447, 457 (7th Cir. 1998). Assuming the Supreme Court resolves any circuit split by mandating the approach taken in most circuits, the case will not apparently change existing 7th Circuit practice.
As for state practitioners, the Federal Rules of Criminal Procedure don’t apply to state courts, of course, but Wisconsin has had a judge-made rule against judicial involvement in plea negotiations since at least 1970. State v. Wolfe, 46 Wis. 2d 478, 175 N.W.2d 216 (1970). Moreover, if a defendant enters a plea after a judge participates in plea negotiations, the defendant “is conclusively presumed to have entered his plea involuntarily and is entitled to withdraw it.” State v. Williams, 2003 WI App 116, ¶16, 265 Wis. 2d 229, 666 N.W.2d 58. In formulating this rule, Williams, ¶¶12, 16, 17, rejected the state’s argument that a defendant should have to show “prejudice”—that is, that the plea was actually involuntary because of the judge’s participation. In doing so Williams relies heavily on Wolfe and policy reasons: e.g., eliminating the unacceptably high risk of a coerced plea, protecting the integrity of the judicial process, preserving the judge’s impartiality.
Could rejection of the 11th Circuit’s approach by the SupremeCourt affect our rule? Probably not, given that Wisconsin’s rule is home-grown, based as it is on Wolfe and good judicial policy. Nonetheless, if the reasoning of the Supreme Court’s decision goes beyond application of the language of Rule 11(c)(1) and, say, minimizes the concern that judicial involvement affects the voluntariness of a plea, we might see the state take a run at getting the rule in Williams changed.
