CRIMINAL PROCEDURE

Class Eleven

Today’s Topics: Pleas Issues

Overview Support & Critique Sentencing Guidelines “Overcharging”

Requirements Record Voluntary Knowing

Today’s Topics: Pleas Innocence Factual Basis Finality

Withdrawal breach

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

CHAPTER NINE

GUILTY PLEAS AND BARGAINING

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 Sentencing differential Support

Law and economics model

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

CHAPTER TEN

TRIAL AND TRIAL-RELATED RIGHTS

SPEEDY TRIAL

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

Remedies Dismissal

Practical Impact: Remedy may be so extreme so as to vitiate the right

JOINDER & SEVERANCE

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 Rule 13 (multiple Ds) Rule 14 (severance at trial court’s

discretion)

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 D-1 D-2

confession implicates D-1

Non-testifying

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?

Constitutionally Based Proof Requirements

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 ] Issue: What does gov’t have to

prove beyond a reasonable doubt

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

Example: Shad Death

Murder charge

premeditated murder felony murder