criminal procedure class eleven. today’s topics: pleas issues overview support & critique...
TRANSCRIPT
Today’s Topics: Pleas Issues
Overview Support & Critique Sentencing Guidelines “Overcharging”
Requirements Record Voluntary Knowing
Today’s Topics: Trial Issues Speedy Trial
Background Delay in Arrest and/or Charge Assessing Speedy Trial Claims Remedies
Today’s Topics: Trial Issues Joinder and Severance
Defendants Claims/Crimes
Proof Requirements Beyond Reasonable Doubt Elements Means
Guilty Pleas: General Issues Estimates: 90-95% all criminal
cases end with plea of guilty rather than a trial
D may bargain for Reduction in crime charged Recommendation for particular
sentence “Open” punishment
Guilty Pleas: General Issues Plea bargaining can occur at any
stage in process Formerly the “dirty little secret” of
justice system
Societal Considerations Critique
Immunizes poor trial counsel performance
Reward or Punishment? Practical risk of more severe punishment Prosecutor’s decision to “charge up”
permissible Judge may not impose more severe
sentence merely because D went to trial
Impact of Federal Sentencing Guidelines Guidelines claim to limit plea
bargaining to the extent that amount of reduction in sentence is fixed
Prosecutors can evade harshness of Guidelines by their charging decisions
Impact of Federal Sentencing Guidelines Query: Where is the more
appropriate repository for discretion -- judge or prosecutor?
Inverted Sentencing Concept: In multi-D cases, most
culpable D has better shot at receiving lesser sentence because she has more to offer gov’t
Exercise: Overcharging You are a Texas prosecutor. D is charged
with third degree felony. He is 45 years old. Twenty years earlier, he received 2 felony convictions for offenses that now have been reduced to state jail felonies punishable by 2 years confinement.
Punishment range for third degree felony: 2- 10 years.
You offer D plea bargain of 7 years.
Exercise: Overcharging D rejects your offer. You threaten to indict D as habitual
offender under Texas enhancement statute, using his two 20-year old prior convictions.
If you re-indict, D will face minimum 25 years (maximum punishment of 99 or life)
Query: Can you constitutionally make this threat?
Policy Consideration Many states have adopted 3 strikes
statutes Some allow D.A. no choice but to charge
“strike” felony if facts support charge Query: How will this impact D’s
decision to -- accept or reject plea offer go to trial?
Requirements of Valid Plea Records
Intentional relinquishment of known right or privilege
No presumption on basis of silent record
Boykin
Requirements of Valid Plea EXERCISE: As general counsel to
Texas Legislature, what would you suggest the “record” specifically contain? What vehicles might satisfy Boykin?
Guilty Pleas Used to Enhance Issue: Does Boykin [requirement of
record showing voluntary plea] apply? Or, can validity of prior guilty plea used to enhance be presumed in the face of a silent record?
Issue: Can D in federal prosecution attack validity of prior state court guilty plea conviction under Boykin (I.e., no showing of knowing and intelligent waiver)
Voluntary Plea To be valid, guilty plea must be voluntary
Consider, “voluntariness” in confession context where D raises due process challenge
Off limit inducements Threats with punishment not authorized by
law Offers of consideration outside plea process
Potential Problem Area: Package Deals
Knowing & Intelligent Plea Knowledge of Elements of Crime
Concept: Guilty plea cannot be valid unless D knows nature of offense
Knowing & Intelligent Plea Competency
Ability to consult with his lawyer “with a reasonable degree of rational understanding” and
a “rational as well as factual understanding of the proceedings against him.”
Illustration: Federal System Federal Rule of Criminal Procedure
11c “Admonishments” What trial judge must tell D when
addressing her in open court pursuant to plea
Illustration: Federal System Remedies for violation
U.S. v. Timmreck: Can only raise in collateral attack if alleged violation is either constitutional or jurisdictional in nature
Typically only “substantial compliance” needed
Judge’s Role Regardless of plea, trial judge
must satisfy herself there is factual basis to support it
Trial judge may reject plea agreement
Claims of Innocence North Carolina v. Alford
Query” Who would benefit if Alford pleas were rejected? Who would suffer?
Establishing Factual Basis Possible sources of evidence
giving in court judicial confession: testifying and admitting crime
signing confession admitting elements of offense
stipulating that witnesses would testify in specific manner
prosecution’s using live testimony or documents
Finality of Plea Bargains Issues implicated
Withdrawing guilty pleas Remedies for broken plea agreements
Withdrawal Many jurisdictions limit period
during which D can withdraw plea Texas Examples
Right Discretion
Prosecution Withdrawal Executory agreement; prior to
acceptance by court, lacks constitutional significance
Remedies for Breach Prosecution Breach
Santobello v. New York Withdrawal Specific Performance
D does not have choice of remedies
Remedies for Breach Cooperation Agreements
Potential problem: Dispute between parties about whether D has sufficiently fulfilled her obligation under agreement
Remedies for Breach Defense Breach
Ricketts v. Adamson Held: Double jeopardy does not bar
government from filing capital charges against D who entered plea in return for specific prison term for lesser offense when D later violates terms of bargain
Appeal & Collateral Attack Is D entitled to withdraw plea, if
later Supreme Court decision suggests statute under which D pled guilty was invalid? Brady v. United States
Appeal & Collateral Attack Can D attack guilty plea on basis it
was motivated by prior coerced confession? Parker v. North Carolina
Appeal & Collateral Attack Can D who pleads guilty later
challenge plea on ground there was improper racial composition of Grand Jury which indicted? Tollett v. Henderson
Appeal & Collateral Attack Can D challenge guilty plea on
claim it violated double jeopardy? Was product of impermissible retaliation? Blackledge v. Perry Menna v. New York Boce [inquiry into evidence outside
record]
Conditional Plea Concept:allows D to litigate pretrial
issues and then plead guilty conditionally when issue is appealed. If D prevails on appeal, allowed to withdraw plea.
Conditional Plea Federal: Rule 11(a)(2) Texas: Does not have conditional
guilty plea, but does have vehicle to allow appeal of certain pretrial issues
Right to Speedy Trial 6th Amendment
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,…”
Right to Speedy Trial Background & Policies
No person should be detained for long period while awaiting trial
No person should be denied prompt justice
Query: Can D who is already in jail on another charge have right to speedy trial? Smith v. Hooey
Scenarios Between institution
of formal charges (either arrest/indictment) and beginning of trial
Post-Accusation Barker v. Wingo 6th Amd right to
speedy trial
Between commission of crime and D’s arrest or filing charges
Pre-Arrest U.S. v. Marion No speedy trial right Statute limitations Due Process (limited)
Delay in Arresting or Charging Issue: Does potential D have
protection under right to speedy trial? Due process? United States v. Marion
Does person need to be indicted or charged by information or other formal mechanism in order for right to speedy trial to apply?
Delay in Arresting or Charging What mechanisms might be
available to guard against actual prejudice stemming from passage of time between commission of crime and time of arrest or charge? Statute of limitations, limitations Due process, limited application
Speedy Trial Applications What is remedy for speedy trial
violation? How does D raise issue? If speedy trial motion is denied, can
D take interlocutory appeal? If charges are dropped or dismissed,
and later reinstated, is that time considered in assessing speedy trial?
Due Process Analysis United States v. Lovasco
Held: Right to speedy trial does not apply prior to time person becomes accused under Marion [arrest]
Prosecution need not file charges as soon as it has sufficient evidence to convict
D limited to due process claims for pre-indictment delay
Egregious cases only
Assessing Speedy Trial Claims: Barker v. Wingo Right to speedy trial differs from
other procedural rights enshrined in Constitution Accused’s interest in prompt trial
shared by community Accused might benefit, rather than
suffer, because of delay Vague concept: when, precisely, has
right been denied
Assessing Speedy Trial Claims: Barker v. Wingo Illustrative factors in assessing
Length of delay May be threshold factor
Justification offered D’s efforts to assert speedy trial right Prejudice to D
often carries critical weight
Barker Application: Doggett v. United States
Delay triggering mechanism is approx 1 year
Negligence [or inattentiveness] counts against gov’t
Barker Application: Doggett v. United States D’s unawareness of indictment was
significant factor Trial prejudice is independent
factor No specific prejudice necessary if
delay is long enough
Illustrative Scenarios Crimes --
conduct stemming from drug ring
Might include: conspiracy to import, possession, delivery, bribery, $ laundering, tax evasion
Defendants -- conduct: murder for hire
Criminally responsible parties might include: D-1 (shooter) D-2 (driver) D-3 (person hiring)
Overview Issue: What charges, which
defendants, can be combined in a single trial
Area does not involve constitutional error per se
Overview Some issues have constitutional
implications Historically: Gov’t could only
charge 1 offense per indictment. Also restricted in trying Ds jointly over objection
Federal Joinder: Defendants Richardson v. Marsh: upheld joinder
impair efficiency & fairness if require separate randomly favor D tried last avoid inconsistent verdicts more accurate assessment of relative
culpability among co-actors Criticisms
Unfair gov’t advantage: “birds of a feather” Tool to wear down opponent
Federal Joinder: Claims Rule 8 Permits gov’t to offer evidence
that might otherwise have been excluded as inadmissible character evidence
Federal Joinder: Claims Not always clear that D damaged
by consolidation of claims Even if misjoinder, reviewing
courts often rely on jury instructions to find harmless
Joinder of Defendants: Problem Areas Finger-Pointing
Antagonistic defenses Remedy: proper jury instruction Mutually antagonistic defenses not pre se
prejudicial
Joinder of Defendants: Problem Areas Misjoinder
May be harmless Burton Error
Constitutional error can occur in joint trial that would not arise if Ds were tried separately
Rule: Error when co-D’s post-custodial confession offered at joint trial
Bruton Is confession admissible against D-
2? Why or why not? Is D-2’s confession admissible
against D-1? What constitutional right at issue? Is severance the only method to
protect against this type of error? What other alternatives might be
used?
Proof Beyond Reasonable Doubt Constitutional rule that cannot be
tied to one specific portion of Bill or Rights
In re Winship “It is far worse to convict an innocent
man than to let a guilty man go free.”
ELEMENTS [What ] Elements must be
charged in indictment submitted to jury proved beyond reasonable doubt
Significant recent clarification Apprendi: Other than fact of prior conviction,
any fact that increases penalty for crime beyond statutory maximum must be submitted to jury and proved beyond reasonable doubt
Query: Why should recidivism be treated differently?
MEANS [How] Issue: Does Constitution allow
crime to be defined so broadly as to permit jurors to reach one jury verdict based on a combination of alternative findings