Tuesday, June 14, 2011

Why judges shouldn’t give legal advice

The law on plea bargaining can vary wildly from state to state.  But in some states, judges are not allowed to participate in the plea bargaining process; instead, the prosecutor and the defendant (usually through defense counsel) are left to negotiate a deal.  If a deal is reached, it is presented to the judge; if no deal is reached, the case can be set for a jury trial instead.  But not all judges like to have trials, especially when they’ve got a lot of other cases on their docket or they want to be somewhere else—“Fore!”—instead.  So if plea negotiations bog down, a judge might subtly nudge one side or the other to get the parties closer to an agreement. 

Take, for example, the case of State v. Bonner, where the defendant was charged with two criminal counts for writing bad checks.  The prosecutor offered a plea deal for one misdemeanor count, but Bonner repeatedly maintained his innocence.  The judge, however, didn’t seem to want to conduct a trial, so he resorted to some subtle and not-so-subtle “nudging” to get Bonner to take the deal. 

The judge started with simple bullying.  Even though Bonner didn’t have an attorney at the time and had just received the discovery materials minutes earlier, the judge told him: “If you want any deal, you have to do it before we get off the record today. . . . I’m telling you today is the day.  You want any deal it has to be today because I’m not going to accept anything after today.” 

Okay judge, we get it: “today” is the deadline, and for some unknown reason, you just can’t imagine taking a plea deal after “today.”  But Bonner wasn’t intimidated, and he called this judicial bluff by stating, at least four times, that he wanted to “go to trial.” 

The judge then moved from bullying Bonner to generously giving him legal advice.  When Bonner explained why the checks bounced, and stated that he couldn’t accept the misdemeanor plea deal because he had always intended that the checks be paid, the judge responded: “That’s a mitigating circumstance, sir.  That’s not a defense.  Okay?”  The judge further elaborated that “the law presumes that you didn’t intend [the checks] to be paid.”

After several rounds of give-and-take, Bonner eventually broke down: “All right.  Let’s get it over with.”  He then entered a plea deal and was convicted of the misdemeanor.  But after consulting with a lawyer, Bonner appealed and tried to withdraw his plea.  Why?  Because the judge, who shouldn’t have given him legal advice at all, had actually given him bad legal advice.  The appellate court agreed, and allowed Bonner to withdraw his plea, stating: “This was an erroneous explanation of the law by the [judge].  The facts Bonner described might have been a defense to the element of intent under the relevant statute. . . . The [judge’s] statement that the circumstances Bonner described were ‘not a defense’ but only ‘mitigating circumstances’ was simply wrong[.]”

So the judge—ironically named Cimpl—either didn’t understand the law for this basic misdemeanor crime (a real possibility) or he was really eager to hit the green that day (an equally real possibility).  Either way, he’s cost the taxpayers a lot of money: the bad check case of State v. Bonner is still lingering in the court system after nearly two years.  In fact, for this case that the prosecutor viewed as worthy of a misdemeanor resolution, the court has held twenty-three—that’s right, twenty-three—court dates, so far.  There have been seven “status conferences,” five general “hearings,” three “motion hearings,” three ineptly named “final pre-trials,” two “other in-court activity” dates, one “initial appearance,” one “scheduling conference,” and, of course, one “appeal.”  And this doesn’t include the endless stream of motions, transcripts, and other paperwork, or the jury trial that is finally scheduled for later this year.   

The lesson, of course, is that judges who are inclined to give defendants legal advice from the bench should think twice before doing so.  Additionally, those same judges shouldn’t be afraid of conducting a trial now and then—it might, counter-intuitively, actually give them more time on the links.

1 comment:

  1. As Jed Rubenfeld states in "Revolution by Judiciary" (p.4): “American constitutional case law has almost nothing to say about what judges are supposed to be doing when they go about the business of interpreting the Constitution”, the related question raises: is a judge, or especially juror, due to many constrains, really capable to judge within BOTH, the local Law AND the Constitution, or even, if expecting them to judge could be an unintentional invitation to violate the Constitution. Not being aware of any possible solution to it (except the postmortem function of the Feds), I am deeply disturbed that the judicial branch managed to entrench itself as an independent but personally- and politically-tinted social club that may capriciously overlook its primary role of the Constitution-entrusted Citizens' protection mission.