Ramsey v. New York – Oral Argument – February 22, 1979

Media for Ramsey v. New York

Audio Transcription for Opinion Announcement – March 05, 1979 in Ramsey v. New York

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William J. Brennan, Jr.:

We will go out of order if we may until more of our colleagues arrive.

And here first the case 77-6540 Harold Ramsey versus New York.

Mr. Fisher, you may proceed when you are ready.

Steven Fisher:

Chief Justice Brennan and May it please the court.

This case involves the practice of plea bargaining and the voluntariness of a guilty plea.

Its distinguishing feature is that it presents for review, the issue of whether and to what extent; a sitting trial justice may participate in the actual give and take of negotiations for a guilty plea and it invites the resolution of a question specifically left open in Brady against United States of what the consequences would be if a judge were to deliberately employ his sentencing power to induce a defendant to tender a guilty plea by threatening to impose a harsh sentence after trial.

Harold Ramsey, the petitioner was 24 years old when he took this plea.

He had a history of emotional problems and was certainly no stranger to the criminal justice system in Kings County.

He had been a juvenile delinquent; he had been adjudicated a youthful offender and had been convicted of a felony prior to this involvement with the law.

In this case, he was charged with two separate armed robberies.

And as his case made its way to the Courts of King’s County, he appeared in a conference part, which was specially designated in King’s County for the exploration with the possibility of disposition without trial.

In that part, he entered a guilty plea to the reduced charge of unarmed robbery and did so upon a sentencing promise made by the judge of an indeterminate term from three and a half to seven years incarceration that being only slightly greater than the very minimum he could have received under New York law.

Subsequently, he was through that plea and the case was transferred to a trial part where Mr. Ramsey for the first time encountered the judge whose conduct is called into question here.

It was 18 months after he had been arrested and he had been incarcerated throughout that period of time when Mr. Ramsey was afforded a pre-trial Wade hearing.

One witness was called, she identified the petitioner as the perpetrator of the armed robbery quite definitely and the defense tried to raise some issue as to the propriety of a pre-trial identification techniques.

However, the next day, the next morning, prior to the conclusion of that hearing, the defendant Mr. Ramsey offered to plead guilty.

This time to the charge of armed robbery has charged in the indictment, one count to cover both indictments.

This plea upon a sentencing promise offered by the judge of an indeterminate term now from six to twelve years incarceration.

There is no transcript of the negotiations that led to this guilty plea, because as is the custom in King’s County and in New York.

Plea negotiations are generally conducted at bench conferences and are not recorded, they are not on the record, but we learn about the negotiations and what happened to lead the petitioner to plead guilty, because immediately prior to sentence, the petitioner moved on paper supported by his own affidavit and the affidavit of Defense Counsel.

William J. Brennan, Jr.:

Mr. Fisher, before you continue you had told us just a moment ago that ordinarily in King’s County plea negotiations are conducted at bench conferences of which no record is made.

Steven Fisher:

That is correct Your Honor.

William J. Brennan, Jr.:

Does that apply that it’s quite usual for judges to participate in the negotiations?

Steven Fisher:

Yes, it does, Your Honor.

In fact, at oral argument in the appellate division below, the district attorney quite candidly conceded that this type of negotiations goes on all the time.

William J. Brennan, Jr.:

And your position I gather is that it’s always improper for the judge to —

Steven Fisher:

Well, I would ask that the Court establish a procedural safeguard based upon my analysis of Jackson, the needless encouragement of guilty plea.

I would think that the active participation of a trial judge in the give and take of negotiations for a guilty plea encourages a defendant to plead guilty.

And it serves no State interest therefore it is needless.

William J. Brennan, Jr.:

Well, to what extent would you suggest the judge has any role in the file?

Steven Fisher:

Well, I think that an agreement maybe reached between the Defense Counsel and the Prosecutor, and that agreement maybe presented to the trail judge.

Now, my argument is limited essentially to judges who are scheduled to preside at trail in the event that no disposition is reached.

William J. Brennan, Jr.:

A judge here will sentence the man if he pleads not guilty, but is found guilty.

Steven Fisher:

That’s correct.

I find no constitutional objection to the conference part concept that is established in King’s County where a defendant who may invite judicial participation can do so knowing that the judge with whom he is negotiating will not preside at a trail should no disposition be reached.

It seems to me that the source of the encouragement to plead guilty is the defendant’s knowledge that a rejection of a plea offer made by the Court, by the judge will mean a trial held before the same judge who may view him then as a guilty man who has rejected a fair disposition of this case.

William H. Rehnquist:

What if the prosecutor offers to recommend a certain sentence to the defendant if he pleads guilty and the defendants says, how do I know what the judge will do?

Your recommendation isn’t binding and the prosecutor says, well, if you are agreeable, we can take it to the judge and we make it some feel for how he thinks about it.

Would you say that’s unconstitutional?

Steven Fisher:

I would not object to the presentation as in the federal system of an agreement being presented to a judge who then may ratify or reject the offer.

The judge must act independently in accordance with his own responsibility and certainly, his responsibility is to ultimately impose sentence, so that an independent agreement reached by the prosecutor and Defense Counsel cannot bind the judge and they may present that I find nothing, I do not find the same course of impact in that presentation to a judge.

William H. Rehnquist:

What’s the difference?

Steven Fisher:

Well, the first difference that comes to mind is although, assume that, that agreement was rejected by the judge.

There would be no personal investment in the plea bargaining procedure by the judge.

There would be no personal rejection as in the case where a judge himself makes a specific plea offer and the defendant rejects it.

The judge apparently or presumably would make an offer that he would plea fair to all sides and by the defendant rejecting the offer made by the Court, he would then face the possibility that the judge would resent that reject, and that his resentment might either intentionally or subconsciously work its way either into a sentencing function or into the discretionary ruling that he would make a trial.

Thurgood Marshall:

Mr. Fisher in the State of New York or in Brooklyn, is this by statute, by rule or by what, this bench conference?

Steven Fisher:

Well, the conference part, there is a special part to which cases are sent after arraignment that is established by Court rule.

No statute that I’m aware in New York.

Thurgood Marshall:

But what statute rule or what says that a judge shall participate?

Steven Fisher:

There is no statute rule or other —

Thurgood Marshall:

This is a custom that has grown?

Steven Fisher:

It has, Your Honor.

Thurgood Marshall:

And the judge is a party in this —

Steven Fisher:

Yes.

And it’s been recognized by the Court of Appeals in our State that judges do participate in plea negotiations.

Although, some cases have questioned it as referring to the ABA standards, which have only last week been amended.

Thurgood Marshall:

Well, on which side is the judge on in the negotiation?

Steven Fisher:

Well, it seems to me that the judge becomes an advocate for a disposition, his own perhaps.

In this case, this is a good example of where the prosecutor is taken out of the plea negotiating procedure, because all the prosecutor did here was prior to the Wade hearing, he said that, he would consent to a reduction in charge, he would consent to a guilty plea to unarmed robbery; his consent being needed under statute.

Steven Fisher:

After the Wade hearing, he withdrew that consent, but the district attorney never took any position and indicated to the Court that he would have no position on sentencing.

So, the whole question was —

Thurgood Marshall:

If one of the parties, district attorney has no position on sentence, what is the good of plea bargaining, who is doing the bargaining now?

Steven Fisher:

Well, in this particular case and under these circumstances, the bargaining was between the Judge and the defendant.

Thurgood Marshall:

Is that normally understood to be plea bargaining?

Steven Fisher:

Well, it’s called —

Thurgood Marshall:

Or is that a trial?

Steven Fisher:

It’s called pre-bargaining in King’s County Your Honor.

I must say though that there are many instances in which the prosecutor will make the sentence recommendation in King’s County and may even condition his consent to a reduction in charge upon the imposition of a sentence, which is agreed to.

So, to that extent, I don’t mean to imply that in all cases in King’s County the prosecutor does not participate.

I simply say that in this case, the prosecutor in effect did not participate expect to first give and then withdraw his consent to the reduction in the plea, in the charge.

Potter Stewart:

Mr. Fisher the ABA standard on which you side on the footnote on page 16 of your brief was in fact changed last week, wasn’t it?

Steven Fisher:

It was Your Honor.

The proposal that we cite that was advanced with the ABA was adopted.

And it permits at the request of both sides when the Defense Counsel and the defendant and prosecutor are having difficulty reaching an agreement, they may request a plea conference as it were at which the judge maybe the moderator, and we find the difficulties with the part of the adopted ABA standards, which indicates that judge may independently offer a disposition that would be acceptable to him.

William H. Rehnquist:

When you say that the ABA standard permits, what you mean is that it recommends that the states and the federal government or anybody else who might have sentencing authority ought to permit the judge.

Potter Stewart:

But you would not agree with that if the judge is the one who, if the Board then fails, is going to turn the case.

Steven Fisher:

That’s correct.

Potter Stewart:

Even as a moderator?

Steven Fisher:

I don’t think that his position as a moderator would be consistent with constitutional principles.

Certainly I would have objections to his proposing a disposition that would be acceptable to him.

I would add, however, that in the same ABA standards adopted last week, it is quite emphatically said that a judge shall neither by word nor demeanor indicate to a defendant that he believes a plea ought to be entered.

And it also says that all this negotiation at this conference shall be conducted on the record.

The problem here is that the plea bargaining was conducted off the record.

Thurgood Marshall:

Just to pause at one another point.

At this conference in this case, did they discuss the facts?

Steven Fisher:

Well, it seems established that prior to the Wade hearing and generally they do discuss the fact, the prosecutor will say, we think we can prove this and Defense Counsel may say, well, but we don’t —

Thurgood Marshall:

So the judge is going to trial, the case — gets a pre-run of the case that he is on a later trial?

Steven Fisher:

He does Your Honor.

And in this case, there were negotiations.

Thurgood Marshall:

He could get a full run, because he could?

Steven Fisher:

He could.

Thurgood Marshall:

And so the trial of the case would be a new trial.

Steven Fisher:

In this case, it seems established and uncontested that prior to the Wade hearing, this very trial judge had apparently an unreported bench conference, again extended to the defendant the plea offer involving an unarmed robbery carrying a three and a half to seven year sentence and that the petitioner rejected that offer, insisted he was innocent and requested that he would be permitted to go to trial.

What happened then was that the witness testified at the Wade hearing and the crucial part of the record, the clearest account of what happened at that negotiation following the Wade hearing is given at page 28 of the record where the Court and the Defense Counsel engage in an exchange where the council speaks about what followed the witness’s testimony.

And he says very briefly there was some talk about a plea of guilty and at that time the plea of guilty was discussed, the plea of guilty was talked about as I came up to the bench and we discussed it.

And Your Honor said that you would give six to twelve with the district attorney’s approval.

I came back and said to my client six to twelve and he said, no and it went back and forth and finally, we arrived at a decision, according to judge about the district attorney having withdrawn his consent at that time to a charge reduction.

The lawyer agrees, and then goes on.

We arrived at a six to twelve-year sentence, prior to that time, the admonition of the statement was made to me that if this guy goes to trial and he is convicted, he is going to get twelve-and-a-half to twenty five.

Your Honor told me to take that back to my client, which at that time I did judge, I gave him that warning and the judge now explains and says subject of course to my reading to probational report, it is a practice in my Court when there is an armed robbery to impose a maximum sentence, unless there are mitigating circumstances to which the lawyer replies.

Well, I think Your Honor in light of everything that that was the basis of why the defendant took the plea.

Our position is that this plea on this record is plainly coerce.

Now we have no quarrel with the proposition stated as recently by this Court as December in Corbett against New Jersey that a State may indeed offer to a defendant substantial benefits in return for a guilty plea.

And we learned in Bordenkircher that a prosecutor may threaten to bring charges, which are justified on the evidence in order to induce a defendant to plead guilty that on the theory that the prosecutor and the defense arguably possess equal bargaining power.

Byron R. White:

Well, how about a judge who at sentencing after a guilty plea of normally says or announces that I think it’s only proper to get consideration, to give leniency, because the person has pled guilty and indicated that he is ready for rehabilitation or something like that.

Steven Fisher:

I think that that might enter a judge’s sentencing decision.

But this judge —

Byron R. White:

Yes, I understand, and so that a lawyer may properly advise his client at least this judge usually gives leniency.

Steven Fisher:

And may give, yes he might.

Byron R. White:

You don’t challenge that practice.

Steven Fisher:

No. I do not challenge that, but I think that where the petitioner and the respondent part company in the context of this case is whether the proposition that a State may offer substantial benefits to induce or to persuade the defendant to plead guilty whether that proposition includes a trial judge.

We submit that it does not; that the Court must draw a line at the trial judge and in the context of a criminal case, you cannot count a judge as a representative of the State.

His obligation is to stand between the State and the accused to ensure that the accused is afforded all protections and safeguards to which he is entitled under law.

We do not think that, that role is consistent with a judge doing what this judge did here, that is saying I will simultaneously, I will now give you a sentence of six to twelve, but if this guy is convicted that after trial he will get twelve and a half to 25.

William H. Rehnquist:

Yet, for purposes of State action under the Fourteenth Amendment, the judge’s action is every bit the action of the state in the same sense as of prosecutors, isn’t it?

Steven Fisher:

In certain aspects it is, Your Honor, but I don’t believe that within the confines of the statement announced in Corbett that a State may offer.

I do not think that the word state in that statement, it was meant to include trial judges.

I think it was meant to include prosecutors who represent the State as the prosecuting body, not as the adjudicating body there are different roles.

A defendant may not be faced on the one hand with a prosecutor trying to persuade him to give up his Fifth Amendment constitutional right not to plead guilty and Sixth Amendment right to go to trial, and then also face the judge who is supposed to stand between him and the prosecutor also face the judge who is attempting to persuade him.

Byron R. White:

I think then he wouldn’t think that any bargain that’s been worked out between the prosecutor and the Defense Counsel should be presented for any kind of approval to the judge who may try the case.

Steven Fisher:

I have no objection to that procedure, because I do not see again the coercion.

Byron R. White:

What if the judge says, no I don’t know agree with this.

Steven Fisher:

That may enter into —

Byron R. White:

And then he tried the case.

Steven Fisher:

Well that might enter.

I think it might be better practice to go to another judge, but I don’t think it’s constitutionally mandated, because in the event the plea agreement is reached, it is essential that the plea be presented that the agreement be presented to the Court.

Byron R. White:

Alright.

So, what if the trial judge turns it down, and then the defendant goes back and says it, we do something else, and then they take it back to the judge and he agrees to it.

Steven Fisher:

I find nothing wrong with that Your Honor.

Byron R. White:

Well, he knows that the judge has simply said, if you don’t go for something better, I’m going to try you.

Steven Fisher:

Well, the difference I think is when a judge offers a specific disposition he becomes an advocate for it and the risk that the defendant faces is a rejection of a disposition, apparently desired by the judge.

When a prosecutor and Defense Counsel on the other hand agree independently to a plea bargain, they must, they have no other alternative, but to present it to the Court, to the judge because the judge, a guilty plea may only be tended to the judge, there is no alternative.

And to require in those circumstances that a State or federal system mandate that the case be transferred from one judge to another and those circumstances are made to prove I think too burdensome and would not constitute a needless encouragement under my analysis of Jackson.

Potter Stewart:

Mr. Fisher you rely.

Of course, you are least as I understand it on the due process clause of the Fourteenth Amendment.

Steven Fisher:

I do Your Honor.

Potter Stewart:

And you contend for a rule that would never permit the judge to participate in the bargaining itself to the extent at least that the Defense Counsel said he did in this case, if that judge is going to be the trial judge.I

s that the basis of that submission, the knowledge on the part of the judge that the defendant is guilty or is it rather the potential resentment and therefore vindictiveness of the trial judge.

Steven Fisher:

Both.

I think it is both.

The defendant, if he expresses an interest in pleading guilty and does so to the judge and judge is likely to conclude that the defendant was interested in pleading guilty is most likely guilty in fact.

Potter Stewart:

Of course, judges all the time deal with the rule that certain evidence should be excluded, because of sometimes for reasons not having to do at all with the guilt or innocence of the person very probative evidence of his guilt, but a judge is required under the law the Fourth Amendment or the rules of involuntary confessions or whatever to exclude that from the trial and yet the judge knows all about it and wouldn’t that give him the idea pretty clearly that the defendant is guilty?

Steven Fisher:

It would and the encouragement to plead guilty would be precisely the same.

The difference however is, that Ire Jackson as prohibiting the needless encouragement of guilty pleads and while in a suppression case of a defendant who seeks the suppression of inculpatory evidence, he must address his suppression motion to the judge who must then decide, be it confession or Fourth Amendment question.

Therefore, the judicial participation in that circumstance is hardly needless, it is essential even though it may ultimately work some coercive or encouraging effect on the defendant to plead guilty.

Potter Stewart:

How about the situation and maybe it’s pretty hard for a Brooklyn lawyer to realize this, but there are many parts in the United States that are not like Kings County and that do not have many, many trial judges that only have one trial judge.

Many Counties in the United States have only one trial judge, then that would no longer be needless, it would be a need.

Wouldn’t it?

Steven Fisher:

Well, I think not, I think in that circumstance, I can see no State interest advanced by the participation of a trial judge.

Potter Stewart:

Well there is only one though in the whole County.

Steven Fisher:

Right and in that county there would be judicial participation in plea.

Potter Stewart:

What if — there could be under this privilege.

Steven Fisher:

There could not be under my proposal.

Potter Stewart:

The other way to — the other way, it might come out, is to say, well in that county it’s not needless.

Steven Fisher:

Except that I — that argument might be made, but I think whoever —

Potter Stewart:

But you don’t make it.

Steven Fisher:

That’s right, and I think that it would be up to whoever propose that argument to demonstrate what that need.

Warren E. Burger:

You used a phrase, needless guilty pleas and I’m not sure I know what you mean by some of Jackson opinion.

Steven Fisher:

Well, my reasoning is based on what I see to be the underlying principle in the Jackson case, which is that the constitution will —

Warren E. Burger:

What you think it means, that’s what I’m trying to get.

Steven Fisher:

What do I think it means, I think that what Jackson holds is that some encouragement or encouragement to a defendant to plead guilty is not always violative of due process, but the test of Jackson is needless that is whether it serves a legitimate goal and whether or not that goal can be achieved by some other means.

And I think in this the case the participation of a trail judge in plea bargain serves no state interest and therefore is needless and it encourages the defendant to plead guilty.

Therefore it’s needless encouragement and is barred under the principle of Jackson.

Warren E. Burger:

What if a judge assigned or a district where he is not regularly sitting, so that his habits are not known, announces at the beginning of the term when they the call the criminal calendar that all persons who are tied and found guilty will get the maximum sentence permitted by the statute.

Do you think that has a tendency to encouragement guilty pleas by people who make a judgment that they are likely to be found guilty?

Steven Fisher:

Absolutely.

Warren E. Burger:

Do you think it’s bad?

Steven Fisher:

Yes, I do.

Warren E. Burger:

Do you think Jackson prohibits it?

Steven Fisher:

I think the principles of Jackson are prohibited.

Yes, Jackson of course — I think there is a case that we cite in our reply brief called, I think it’s United States against McCoy where the district, the circuit court — the D.C circuit questioned, is presented precisely with the judge who announces that his policy is to impose a maximum sentence upon anyone convicted at the trail of armed robbery.

Warren E. Burger:

Whether if instead of announcing it, particular judge by long habits communicates to the entire bar and practicing in that court, that that’s what in fact he does but he doesn’t articulate that is his standard.

Steven Fisher:

Well, of course that’s a closer question of course because there is difference between a lawyer saying to his client, this judge is reputed to have a policy of imposing the maximum.

The difference between that and a judge announcing in opening court to a defendant leaving no room for doubt, yes I have that policy you will get the maximum if you are convicted.

Warren E. Burger:

Don’t you think there are any advantages to the category of defendants as a class versus charge that the candor of the judge gives them much better working basis for making a decision.

Steven Fisher:

Your Honor, I agree with what I think is a consensus of opinion in the commentaries and the case is that whatever benefit may accrue to the defendants as a class, but this increase of information as they say is outweighed by the coercive effect of a judge’s announcement or judge’s participation in plea bargain.

Potter Stewart:

Mr. Fisher some, close to 20 years ago, more than 15 years ago the Court of Appeals for the Seventh Circuit reversed a conviction on the ground of a statement by a trail judge in Chicago, that it was his practice and policy and considered have it to always give greater sentences to somebody who had been, who had pleaded not guilty and then found guilty than to those who pleaded guilty.

Are you familiar with that decision, well I can’t remember it.

Steven Fisher:

It was — I am not familiar.

Potter Stewart:

What would you think of that?

Steven Fisher:

I think I would have trouble with it.

The whole concept of differential sentencing is troublesome.

It’s true as Justice White suggested that a judge may take into a account the defendants willingness to admit his guilt, to take the first step on the road towards rehabilitation, but an announced policy of differential sentencing I think would run into the same problem that we find in this case and I think —

Potter Stewart:

Although at least in your case, you have at least according to the defense counsel active participation in the bargaining by the judge himself and a precise statement in your case that if he found guilty, after non-guilty plea, you would get the maximum sentence.

Steven Fisher:

Which was twice —

Potter Stewart:

There is a problem in this case as to what the facts actually are, all we have is that statement of Defense Counsel.

Steven Fisher:

There are differing interpretations now offered to the court by the petitioner and the respondent.

It seems to me that the respondent has suggested in a footnote of his brief as I point out in my reply that if the sequence of events occurred as I read the record to show that I may very well be entitled to the relief I seek and therefore it seems to me that tacitly at least he has conceded that an evidentiary hearing to establish which of the interpretation occurred is required.

Our position is —

Potter Stewart:

The colloquy that you, to which you call our attention on page 28 of the appendix.

Most of the support for your factual position comes from Mr. Bavenzino (ph).

Steven Fisher:

Who is trial counselor?

Potter Stewart:

Who is trial counselor for the defense.

Steven Fisher:

Yes.

Potter Stewart:

There is some qualified conformation of it by the Judge.

Steven Fisher:

Yes, Your Honor.

Potter Stewart:

But he immediately qualifies it.

Steven Fisher:

Well, subject to his reading of the probation report that is not — I don’t believe very meaningful since in New York every court is obliged by law, every judge is obliged by law prior to imposing sentence to at least order and consider probation report but he’s not obligated —

Potter Stewart:

But then he said that is a practice in my court when there is an armed robbery to give a maximum sentence unless there are mitigating circumstances.

Steven Fisher:

Well he has obviously misrepresented his position because this defendant had pleaded guilty to armed robbery and received less than half the maximum sentence.

So what he really meant was, that anyone convicted in his court —

Potter Stewart:

After a not-guilty plea.

Steven Fisher:

After not guilty.

Thank you very much.

Thurgood Marshall:

Why didn’t they have these statements or negotiations transcribed, you say, they never do it?

Steven Fisher:

It is my experience that is not the — it is the custom —

Thurgood Marshall:

Is there a reason for it?

I mean in the middle of a criminal trial, and you have a bar conference, sibebar conference, isn’t that transcribed?

Steven Fisher:

Well, in the middle of the criminal trial certainly when issues of law are raised.

Steven Fisher:

But not —

Thurgood Marshall:

Right, why could you do it then?

Steven Fisher:

You certainly could I think that it must be — any negotiations I think the better practice is to transcribe, but it’s simply not the custom in Kings County to do so.

Thurgood Marshall:

Well, in some counties, it is.

Steven Fisher:

I understand that, and it’s the recommendation of the ABA with which I agree.

Byron R. White:

I take it a state can have an announced policy of leniency for guilty pleas.

Steven Fisher:

That’s the implication of the statement in core of it as I understand.

Byron R. White:

Well, I mean that’s the — otherwise guilty plea systems would always be unconstitutional I suppose.

I suppose almost everywhere the prosecutor’s plea bargain for — on charges.

Steven Fisher:

Yes and of course the range of the —

Byron R. White:

That is, you ask almost any prosecutor if he plea bargains, if he says yes, then you say, “Well, so you give, your policy is to recognize leniency, extend leniency exchange for guilty pleas?”

What was his answer, be –?

Steven Fisher:

Yes.

Byron R. White:

It’s almost everywhere.

Steven Fisher:

Yes.

Byron R. White:

So may a state have an announced policy of leniency for guilty pleas or not?

Steven Fisher:

May a state have an announced —

Byron R. White:

The state of, the state, yes.

The prosecutor.

Steven Fisher:

Yes he may.

Byron R. White:

May a Judge say I have a policy of extending leniency at the time of sentencing for those who have pled guilty.

Steven Fisher:

I don’t think you can, I don’t think you can.

Potter Stewart:

You certainly can at the seventh circuit, okay.

Steven Fisher:

No we can’t Your Honor.

Byron R. White:

Well then he must have judged always — may he say — I agree, I approve this bargain you have struck based on leniency for–?

Steven Fisher:

He may — once a bargain is struck yes he may say he accepts it and may give his reasons for accepting it if he so desires.

Byron R. White:

So any time under — must you defend the position that at sentencing, a judge may never have a leniency for a guilty plea?

Steven Fisher:

No, that is not my proposition; my proposition is that he may not prior to the plea agreement.

Byron R. White:

That isn’t what I ask you.

Steven Fisher:

Well I believe —

Byron R. White:

May I — I say, here is a Judge how at sentencing says, “My policy is to give leniency for guilty pleas,” that’s all he has ever said but he says it almost every time, and lawyers are — constantly tell their clients then that this judge’s policy, announced policy is to give leniency for guilty pleas, is that unconstitutional?

Steven Fisher:

Well let me reconsider, I think yes.

I think yes the announcement of a policy causes me trouble, the announcement of whether it would be at sentencing; it may be in the individual case —

Byron R. White:

So if he says, he says in proper cases my policy is to —

Steven Fisher:

In proper cases, would be more acceptable to my sense of due process, thank you.

Warren E. Burger:

Very well Mr. Mischel.

He has taken a long time to get there.

Mr. Mischel.

Richard Elliot Mischel:

Mr. Chief Justice and May it please the court.

Before I respond to petitioner’s arguments with regard to the constitutional propriety of judicial participation plea negotiations, I would like to clear up what I perceive to have been a misconception not a misrepresentation but a misconception of what the conference part in Kings County is all about.

Conference part is not statutorily mandated there is no provision it for anywhere in the New York Criminal Procedure Law.

However the court rules enacted by the various appellate divisions of the state of New York have established a separate and distinct conference part whereby after a defendant has been indicted, his case will be sent to the conference part for discussion concerning the disposition before plea.

Present at this discussion are defense counsel, the prosecutor, not necessarily the defendant he may waive his presence and the judge.

At that time, the prosecutor presents the information he has with regard to the case; defense attorney responds with regard to defenses or any other matter that he’d like to bring before the judge.

At that time, the judge after evaluating the entire record by reading the grand jury minutes, listening to both sides advises the defense attorney of what he would consider to be a favorable or permissible disposition in this case, is not as, as counsel has pointed out most of these negotiations, in fact all of these negotiations do not appear on the record.

But this is not necessarily a detriment to the plea bargaining system in Kings County.

Because if there is any question certainly defense counsel and the court may go on the record and spread out, as in this case, their understanding of what the plea agreement was all about.

I have suggested in my brief that due process would be satisfied if a trail judge participated if at the — well during the negotiations everything is spread out on the record, but that does not necessarily preclude or require for that matter that the negotiations be taken down step-by-step.

I see nothing constitutionally wrong with the situation in which at the conclusion of the discussions, the prosecutor, defense counsel, and the judge spell out the agreement and the terms of the agreement as they understood them to be.

Certainly under those circumstances, particularly where a defense counsel may be looking towards a claim of prejudicial conduct or coercion would be expected to indicate what he believed to be the coercive aspects of this plea negotiation.

Secondly I would like to point out that it was raised during oral argument, during petitioner’s argument that suppression hearing is markedly different because the suppression motion must be addressed to a particular judge therefore establishing the strict necessity which he perceives under United States versus Jackson.

But the easy answer to that is that in addition to all of the prejudicial information which is brought out at this suppression hearing, at which time the judge may suppress evidence which conclusively establishes the guilt of the defendant.

You may also have the suppression part or the counterpart of a plea part that we have in Kings County.

What he seems to be saying is then, that you have to have the suppression motion directed to the particular judge because the motion must be made to the judge.

But on the other hand a court can just as easily set up a suppression part where a trial judge, or a suppression judge hears all suppression motions and then after the disposition is reached.

The case may be sent back to the trail judge.

With regard to the American Bar Association Standards, I think it’s interesting to note that not only do they recommend an increased participation of the trial judge or for that matter any judge in which the judge may suggest to the defendant completely unsolicited.

What he would consider to be a favorable disposition.

But in addition to that, the American Bar Association specifically rejected a proposal which would require the disqualification of the judge on motion of the defendant but as a predicate for that motion, it must be established that the judge had been exposed to prejudicial information in the presentence report.

Even the American Bar Association which in 1968 recommended no judicial participation of plea negotiations has now said a judge may only be disqualified if exposed to an unfavorable presentence report.

Potter Stewart:

But he may — if not so exposed, he may participate only as a moderator, not as one of the bargainers, isn’t that correct?

Richard Elliot Mischel:

That is correct Your Honor, but once the agreement is brought to the attention of the judge and the judge says, “No, I don’t want to go along with this agreement go back and bargain some more,” the judge is aware of the fact that defendant wants to plead.

Thurgood Marshall:

As I understand there was no go back, in this one it was all gone with the judge there.

Richard Elliot Mischel:

I’m sorry Your Honor.

Thurgood Marshall:

In this case, it wasn’t going back and forth to the judge, the judge held the whole thing.

Richard Elliot Mischel:

That is correct Your Honor but —

Thurgood Marshall:

He didn’t negotiate —

Richard Elliot Mischel:

Your Honor, in all candor, this was not that the typical type of plea bargaining or horse trading.

Thurgood Marshall:

But when we have got — .

Richard Elliot Mischel:

But your honor this is not a situation where the Judge has said to the defendant well will you take one to three, the defendant says no, well how about is zip to two.

He is not negotiating with the defendant.

Thurgood Marshall:

Well as I understand prosecutor said practically nothing.

Richard Elliot Mischel:

Your Honor, that is unclear from the record, because after the record —

Thurgood Marshall:

But at least it is in the record that judge did.

Richard Elliot Mischel:

That is correct Your Honor.

Thurgood Marshall:

The judge participated in the merits of the case.

Is that right or wrong?

Richard Elliot Mischel:

Your Honor may I qualify that.

I can’t —

Thurgood Marshall:

No sir.

Did the judge participate in the merits of this prosecution or this man’s alleged crime.

Richard Elliot Mischel:

Your Honor this Judge did not suggest the plea be taken.

Your honor this Judge did not say that this prosecution’s case was strong and the defense was weak and then I therefore recommend —

Thurgood Marshall:

Did he ask what where the facts?

Richard Elliot Mischel:

The facts will presented through a wade hearing Your Honor.

Thurgood Marshall:

Did he ask what where fact?

Richard Elliot Mischel:

Your Honor the fact really presented to because a motion had been maid to suppress in code identification testimony.

Thurgood Marshall:

I’m not talking about that, I’m not talking about this theory, which the Judge have — .

Richard Elliot Mischel:

No Your Honor.

There was no discussion of the facts in this case, because as I understand what happened in this case, the case has been transferred to this Trail Judge.

Thurgood Marshall:

Well this Judge, was he going to try the case?

Richard Elliot Mischel:

This judge was going to try the case.

Thurgood Marshall:

So this current theory, does he only have the cases he is going to try or does he have all of them?

Richard Elliot Mischel:

He only has the cases, he is going to try, but this —

Thurgood Marshall:

Well how can that be a conference part?

Richard Elliot Mischel:

Well no, I’m sorry if I’ve mislead the court.

What happens is that there is a conference part, either a disposition —

Thurgood Marshall:

Well, it can’t be remarked, every Judge has conference part.

Richard Elliot Mischel:

No, only one judge has the conference part Your Honor.

Thurgood Marshall:

And he tries all of those case?

Richard Elliot Mischel:

No he does not Your Honor.

Either a disposition is reached in what we called criminal term part 1-A.

If no disposition is reached this Judge, the conference Judge assigns out the cases to the respective Trail parts at which time all motions are made and if the defendant —

Thurgood Marshall:

Well, where did I get to understand in this case this Judge was going to try this case.

Richard Elliot Mischel:

No this, the judge who was involved in the ultimate plea negotiations was going to try the case, but it’s a two step process.

There are two Judges involved in this case.

The first Judge who is the Conference Judge had worked out a plea agreement with this defendant and this Judge was not going to preside a trail.

Three months after this defendant pleaded guilty to the same consolidated indictment, which is before in this court, he withdrew the plea.

Claiming that he had been railroaded and coerced, after that the case was transferred out to another Judge at which time when the case was called, defense counsel approached the bench and asked the Judge if he would have any objection to resurrecting the original bargain.

Thurgood Marshall:

Was he doing the trail or do one of these conference thing?

Richard Elliot Mischel:

Pardon, I’m sorry Your Honor.

Thurgood Marshall:

Was it doing the trail or this conference business?

Richard Elliot Mischel:

The conferencing of the case had terminated.

The case had been transferred for trail.

Thurgood Marshall:

Where was it that the judge is sitting on the bench, was that the trail of the case?

Richard Elliot Mischel:

This is at a pre-trail hearing.

The motion to suppress —

Thurgood Marshall:

Pre-trail hearing held in open court.

Richard Elliot Mischel:

But it had nothing to do with the plea.

Thurgood Marshall:

In the open court?

Richard Elliot Mischel:

That is correct, in open correct, and what happened was that when the case was transferred to —

Thurgood Marshall:

And was the court stenographer there?

Richard Elliot Mischel:

Yes, there was.

Thurgood Marshall:

They didn’t take this down.

Richard Elliot Mischel:

No court stenographer did not take this down.

Potter Stewart:

This was that Wade hearing.

Richard Elliot Mischel:

The Wade hearing was transcribed.

Potter Stewart:

Right.

Richard Elliot Mischel:

But my understanding of the record was first the case was assigned out to Mr. Justice Heldt(ph), at which point Defense Counsel approached the bench and said your Honor would you agree to a resurrection of the original plea agreement, namely a plea to robbery in the second degree, at a term of 3.5 to 7.

At that point the Judge said fine, of course the subject to me looking at the probation report and if the District Attorney agrees.

The District Attorney agreed.

Defendant – pardon?

Potter Stewart:

That was a conference judge.

Richard Elliot Mischel:

The original agreement was before the conference Judge.

Now we are in a different trail part.

He is asking to resurrect the old agreement.

Okay, then the Defense Counsel went back to the defendant, defendant said I don’t want that agreement.

I turned it down before besides, I’m interested and I want to go to trail.

Then he made his motion to suppress identification testimony.

The identification witness gets upon the witness stand, goes through the facts of the crime, identifies the defendants, the perpetrator of the crime and unsolicited says, I wouldn’t forget that man’s face for 20 years.

At the conclusion of that hearing and that’s all the testimony we have, we have to assume that the entire proceeding was transcribed.

Petitioner solely doesn’t allege that there were any other witnesses.

At that time, or the next day the District Attorney because this witness now has gotten upon the witness stand and has exposed herself to cross examination and has exposed the prosecution’s case.

Now in the vernacular ups the ante and says I will only accept a robbery one.

It is the practice at the District Attorney’s office, expect in particularly notorious cases.

It is the practice of the District Attorney’s office in King’s County never to recommend a sentence.

So that what went on here was not unusual, certainly not unusual to the county of Kings.

The Judge knowing that District Attorney has now only accepted a robbery one or would only the robbery one plea which is required by state law.

It requires the concurrence of both the Judge and the District Attorney.

The Judge says based on now what I have seen, which is certainly legitimate.

Richard Elliot Mischel:

I’ve seen a witness testify, I have heard what she has to say.

Based on this since it is my practice in these cases, armed robbery cases, I impose sentences, the maximum sentence which in your case would be 12.5 to 25 years.

Subject of course to any mitigating factors in his probation report.

The judge —

Thurgood Marshall:

Like the French Civil law, you’re guilty until you’re prove innocent.

Richard Elliot Mischel:

No Your Honor what I think Judge is saying is, he is not saying to the defendant I’m going to penalize you because you’re going to trail.

What he is saying to the defendant is look this is my practice as a matter of sense and discretion.

I find that armed robberies in Kings County are particularly dangerous.

They pose a particular danger to the safety of the people.

I have decided in my discretion that armed robbery should be penalized more severely than other criminals, because of that danger.

In short, he is saying if you go to trail I am not —

Thurgood Marshall:

It also says you might persuade me to the contrary.

Richard Elliot Mischel:

He would also persuade him to the contrary in what regard Your Honor?

Thurgood Marshall:

You said he said unless there is some kind of circumstance.

Richard Elliot Mischel:

In the probation report.

Thurgood Marshall:

Yeah, well – well there is another sentence?

Richard Elliot Mischel:

Pardon?

Thurgood Marshall:

He is crazy.

I don’t know what is it that would say that there is a nice armed robbery is not bad.

Richard Elliot Mischel:

No, no, but what he is pointing out your Honor is that if there are redeeming factors in this man’s — for example, what is his participation in the crime?

What was the extent of the crime?

Was anybody hurt?

Does the man have a prior record?

Does the man show signs of desire in rehabilitation?

Does he show any remorse for the commission of the crime at all?

The Judge is not talking to the defendant at this time.

The Judge is talking to an attorney who understands this.

If the attorney didn’t convey this information your Honor to the defendant, then the defendant’s complain is with his Attorney and not with the Judge.

Thurgood Marshall:

The defendant wasn’t there.

Richard Elliot Mischel:

The defendant was off on the side at counsel table.

Richard Elliot Mischel:

This was a conference now between the Judge and Defense Counsel.

All this information was conveyed Your Honor to the defendant through counsel.

Thurgood Marshall:

What do you think we need here to find out what happened?

Richard Elliot Mischel:

Your Honor —

Thurgood Marshall:

He thought they are worried.

Richard Elliot Mischel:

I certainly was not.

Thurgood Marshall:

But would you like to have a hearing and find out what happened?

Richard Elliot Mischel:

Personally I would, but I would suggest to the court there are four circumstances or possibly three circumstances under which a hearing in my view would be totally unnecessary.

One circumstance of course would be that this court were to find that any participation by any Judge whether he’d be the Trail Justice or not violated due process or if you assume petitioner’s facts to be the correct facts and you say that due process was not violated in that case.

Or if you assume my facts could be the correct facts and say that in any event due process was violated.

Thurgood Marshall:

Not in the assumed fact.

Richard Elliot Mischel:

See we have —

Thurgood Marshall:

We have difficulty assuming that.

Richard Elliot Mischel:

What I’m saying – I’m not asking you to you know making findings of facts.

Thurgood Marshall:

You said, assuming your facts –.

Richard Elliot Mischel:

Right.

Thurgood Marshall:

Is that what you said?

Richard Elliot Mischel:

I’m taking from the language your Honor of the case in which you dissented in United States ex rel. McGrath v. LaVallee in which there was discrepancy in what actually transpired between the prosecution defense and the Judge.

And in your dissenting opinion, you pointed out that even if you assume the prosecution’s case to be what it actually states it is, I would still find a due process violation.

Thurgood Marshall:

Now son, let me tell to you son, like a father to a son.

I didn’t think that was, I thought it was little over reaching.

Richard Elliot Mischel:

The point that I making Your Honor is that I think that if petitioner’s facts are borne out in the record.

That the judge said unequivocally take this back to your client, if he doesn’t like the 6 to 12.

If he goes to trail and he is convicted I’m going to give 12.5 to 25, Your Honor I would have no hesitation to saying that, that was a bold threat to impose a penalty.

William J. Brennan, Jr.:

And unconstitutional.

Richard Elliot Mischel:

Pardon?

And would violate the constitution.

William J. Brennan, Jr.:

Is it fair to say Mr. Mischel and I expect you, I think I know what your answer is going to be since what you have just told us, that it’s not at all clear from this record or from what part of the record is in the appendix.

What happened in the case?

Richard Elliot Mischel:

Regrettably Your Honor it is not clear from the record.

Richard Elliot Mischel:

There are two interpretations which can be placed on what transpired.

We think for the reason set forth in our brief in page 33 note 28, that our position is the more persuasive position.

William J. Brennan, Jr.:

You think so, but you concede that that is not at all clear.

Richard Elliot Mischel:

I concede that Your Honor.

William H. Rehnquist:

Well, isn’t the burden of proof in any case that comes to this court from the state court where you seek to upset a criminal convection on the petitioner of the person who seeks to upset the action of the state court.

Richard Elliot Mischel:

Yes, Your Honor that is my understanding.

However, because of the seriousness of these particular allegations and that we indeed feel that if petitioner is account is the correct to account that due process would be violated.

We nevertheless feel that a hearing maybe mandated in this particular circumstance.

William H. Rehnquist:

Under what authority of this court?

Richard Elliot Mischel:

I was just – under no authority of this court.

It’s my understanding that the petitioner would have the burden of establishing what went on.

William H. Rehnquist:

Well doesn’t petitioner have the burden right now in this court of establishing the correctness of his contention in order to establish the principle that the proceeding was unconstitutional?

Richard Elliot Mischel:

That is correct.

We —

Potter Stewart:

Well, no Mr. Mischel you told us I think that the record does clearly show that there was some participation on the part of the trial judge in the plea bargaining, you told us that didn’t you?

Some.

Richard Elliot Mischel:

The participation — I would like to classify —

Potter Stewart:

And you further told us if I, unless I misunderstood or misheard you, that if the petitioner’s counsel is correct in his constitutional claim that the due process clause of the Fourteenth Amendment prohibits any participation of the trail judge in the plea bargaining then you lose.

Richard Elliot Mischel:

That is correct and there would be no need for a hearing, because his participation.

He certainly was actively engaged, but I think that there are distinctions that must be drawn.

I think that a judge that says look if you go to trial or if you take a plea of guilty now I will offer you 6 to 12.

But if you go to trail and if you are convicted, I will afford you every consideration that I afford every other defendant who is convicted before my court and I will sentence you according to the valid exercise of my sentencing prerogatives.

I have a lot of difficulty understanding how the trail judge in that case then becomes an adversary or a prosecutor.

Thurgood Marshall:

How does this case fit with Santa Bella case– I’m sure you know that.

Richard Elliot Mischel:

Well, Your Honor in Santa Bella —

Thurgood Marshall:

Attempt to promise.

Richard Elliot Mischel:

It was a promise by a prosecutor, which the defendant then relied upon and than the court refused to honor, excuse me that the prosecutor then reneged on his promise.

Thurgood Marshall:

To prosecute him.

Richard Elliot Mischel:

The prosecutor reneged on his promise, but I think that there is a very clear distinction between the conduct of a prosecutor and how far we would permit a prosecutor to go, as opposed to a trail judge.

For example, in my own opinion, I don’t think that a judge could threaten the kind of treatment, that the prosecutor in Bordenkircher threatened, because under those circumstances the defendant has no alternative but to believe that the trail judge because of his conduct is now the prosecutor and now he is got to go in a court, not only fight the evidence of the prosecutor, but he has got to fight a hostile trial judge.

Richard Elliot Mischel:

But I don’t —

Potter Stewart:

But the trail judge can’t bring another indictment either which Bordenkircher involved.

You puzzled me, but something you said, you said that assuming the facts as the unfavorable version of the facts for your point of view that you would kind of acknowledge as a due process violation.

Richard Elliot Mischel:

Yes I would Your Honor.

Potter Stewart:

Well how does the case as you assume it to be different from the one the Chief Justice posed a little while ago, that the trial judge just announces that his policy is to always to impose the maximum.

Is that equally bad?

Richard Elliot Mischel:

I would submit Your Honor that I would have difficulty with an announced policy that anybody who is convicted in my court would only be sentenced to the maximum, because at that point you are taking out what sentencing requires, that is flexibility and the —

Potter Stewart:

Supposing the judge says that my practice is — say it’s a 20 year maximum, he says my practice in case of this kind gets 17 years.

Richard Elliot Mischel:

I still think that the judge under those circumstances would be of imposing a penalty, because it’s not based on any factors —

Potter Stewart:

Well, supposing he always does and then take one step further, as the Chief Justice said earlier.

And he just doesn’t, every draft case that man gets three years or every tax evasion case two years and all the bar know it.

What’s the difference between that and then judge saying this is policy, I think I’ll follow and anybody if you ought to know it, of course there is exception when there is strong mitigating circumstance.

How do you differentiate?

And why isn’t it better for defendant to really know what the judge intends to do?

Richard Elliot Mischel:

I think that it is wrong, that prior to trail, before a judge has had any information given to him about a particular case, with particular facts and circumstances —

Potter Stewart:

But he says my practice is always subject to exceptions and exceptional cases.

Richard Elliot Mischel:

Alright.

Potter Stewart:

Which I think he says —

Richard Elliot Mischel:

Then I misunderstood.

What he is saying that it is always subject to exceptions or subject to mitigating factors, at that point he is willing to take into account the fact that this is an individual and this person should be sentenced —

Potter Stewart:

Isn’t that what this judge did?

Richard Elliot Mischel:

Pardon?

Potter Stewart:

Didn’t this judge do that?

Richard Elliot Mischel:

That is correct, that is what our judge did, and I’m saying of that was fine, but what Mr. Fisher was arguing is that it was a two step process.

He didn’t say if convicted and subject to the mitigating factors.

Under Mr. Fisher’s view of the facts, the judge first offered to 6 to 12.

Defense counsel went back, spoke to the defendant.

The defendant said I want to go to trail, I’m not pleading guilty and finish with it.

Trail counsel went back to the bench and he said Your Honor he doesn’t want the plea.

At which point according the petitioner the trail judge said well if he doesn’t like that take this back to him, if he is convicted I’m going to give him 12.5 to 25.

Richard Elliot Mischel:

According to petitioner the statement about the practice, the statement about probationary report was merely an afterthought, a window dressing brought up at the time of the sentencing, which was six weeks after the plea.

That’s what I perceive to be the distinction, because under Mr. Fisher’s facts under petitioner’s facts the judge is completely disregarding his sentencing discretion and is saying look I will give you — based on what I know now, I’ll give you one sentence.

If you go to trial, I will give you another sentence.

Under those circumstance Your Honor, I believe that he is being penalized for asserting his rights and that type of case would come under the mandate of Jackson.

But where a judge says I will treat you like everybody else.

You will be sentenced according to the valid exercise in my sentencing prerogative; a defendant is not being penalized for going to trail.

Warren E. Burger:

Do you think there is a no distinction in the Jackson and (Inaudible) did it not?

Richard Elliot Mischel:

Yes, it did Your Honor.

Warren E. Burger:

Do you think there might be one rule about a case as Jackson is relating to the specter of death sentence and that it would not be necessary to apply that same concept to a matter of two or three years more or less.

Richard Elliot Mischel:

Your Honor in Brady vs. United States Mr. Justice Brennan, pointed out specifically in his opinion of Parker vs. North Carolina that one of the big considerations in the Jackson case was the death penalty and until Corbett was handed down, I had assumed that, that was probably the primary motivating factor after reading Corbett.

My understanding of the law is that where a statutory scheme is setup which automatically subjects an individual to a penalty not — that doesn’t mean he has to get it, but automatically subjection to a penalty which would not be available if he pleaded guilty that would come under Jackson and violate due process.

In other words the statute would say defendant on armed robbery cases get 15 years, if he pleads guilty, he automatically gets 7 years.

I would have difficulty with that situation.

Byron R. White:

What about Corbett, what about the situation of Corbett?

Richard Elliot Mischel:

In Corbett, Your Honor, the defendant whether or not he pleaded non vogue, or went to trail was subject to the same type of penalty if he pleaded non-vogue, the trial —

Byron R. White:

But if he went to trail, there was no way he could and was found guilty, there was no way he’d get a lesser sentences in the statute stated.

Richard Elliot Mischel:

That is correct Your Honor, but —

Byron R. White:

So it’s a flat rule, if you go trail you have a certain penalty.

Richard Elliot Mischel:

My understanding in Corbett, Your Honor and I maybe mistaken was that if was that if you went to trail and jury found him guilty of murder in the first degree, he got a definite sentence.

If he pleaded non vult, he could be found on the same facts.

Byron R. White:

He could less.

Richard Elliot Mischel:

He could, but the point is that he could also be subject to the same penalty.

Byron R. White:

I understand.

Richard Elliot Mischel:

The judge could penalize him for the same thing and that there was no discrimination or discrepancy between the two situations.

In fact in Jackson, the opinion pointed out that if the jury could find him guilty and penalize him and —

William H. Rehnquist:

So what if the trail judge says to that, well, look, if you got a trail, there isn’t any statute.

If you got a trial, you are going to get X, that’s I always just armed robbery, I always give 30 years that’s just the way I did.

But, if you plead guilty, I may give you less.

I could give you 30 years, but I may give you less and you have just said that is unconstitutional, but that’s the only difference between — what I’ve just said in Corbett is that the 30 years isn’t a statute.

Richard Elliot Mischel:

I would have to retreat on that.

William H. Rehnquist:

Which one are you going to retreat on?

Richard Elliot Mischel:

I think that when a trial judge —

William H. Rehnquist:

You don’t need to answer right now.

Richard Elliot Mischel:

If I may articulate, I think that a trial judge, take a step back.

It’s certainly, there is no question that a trial judge is going to impose sentence, it’s no secret, number two that when a trial judge imposed a sentence that if a defendant pleads guilty, it will definitely or in most cases would be more lenient sentence.

The state is certainly encouraged either through the trial judge, prosecutor or the legislature to encourage the taking of pleas by the offering of substantial benefits.

But I think that when a judge announces before trial, without considering the facts and circumstances of the case, without knowing anything about —

Potter Stewart:

Well the legislature would be announced before all trials that for certain crimes, there is a mandatory penalty.

Richard Elliot Mischel:

I understand that, but I think the difference between the legislature, Your Honor and trial judge was succinctly pointed out by Mr. Justice Brennan, in Parker v. North Carolina in Footnote 8, where he said that there is a distinction a human distinction between the statute, which is rigidly implied, and a judge who can be approached and any evidence of over bearing or overreaching will appear on the record.

I think that when a judge goes on the record and says, this is what I’m going to do to you.

Under certain circumstances that can only be construed as a threat.

A statue is a neutral across the board type of application.

The judge on the other hand is — may through his rulings, as petitioner points out through his personality, influence the conduct of the trial, which may not be, well I would hesitate to say this, but made to say this, but may not be readily apparent in a record of trial.

Potter Stewart:

What if prosecutor says if you go to trial, my recommendation to the trial judge is always 30 years if he is not guilty?

Richard Elliot Mischel:

I’m sorry, Your Honor, could you?

Potter Stewart:

What if a prosecutor says, if you go to trail in armed robbery and you are found guilty, I always recommend 30 years without exception.

But I’m certainly willing to plea bargain, if you want.

Richard Elliot Mischel:

Your Honor, that what seemed to come under Bordenkicher and I still maintain that there is a very definite distinction between the prosecutor’s threat to recommend a sentence and a judge’s threat to impose the sentence because —

Potter Stewart:

He had the power to impose it.

Richard Elliot Mischel:

That is correct, Your Honor and by threatening to impose the sentence based on nothing more than the defendant’s assertion of his rights to go to trial.

I think that at that point, the defendant can only assume that the trail judge has become in fact the prosecutor and is no longer that attached neutral magistrate, which we have all heard so much about.

Warren E. Burger:

Just a minute, you and your friend too have referred from time-to-time to the American Bar Association reports that cover this area, several of them and they might have or rather sweeping concessions you seem to be made — I wonder if you are aware that in everyone of those reports the American Bar pointedly said, they were not addressing the constitutional question with nearly good sound practice.

Richard Elliot Mischel:

Yes, Your Honor.

Warren E. Burger:

None of those were suggesting a constitutional question in this problem.

Is that, are you aware of that?

Richard Elliot Mischel:

Yes I’m, Your Honor.

Now, I would only suggest that the American Bar Association while they are not considering the constitutional ramifications of what they are doing certainly would not suggest that the practices that they advocate would also run counter to the constitution.

My problem with sentencing in this particular case is that when a judge without regard to any factors, other than the fact that an individual —

Warren E. Burger:

I was approaching this from — the observation that I was making from the other end of the spectrum namely that even when they recommended something was a desirable practice.

It expressly, disclaimed any notion that failure to follow that — desirable practice would be a violation of the constitution.

Richard Elliot Mischel:

Your Honor, I understand that to be correct and in addition to the proposals of the American Bar Association or the standards certainly would not be required in the States and the State would be able to adopt the system of contract, but I think of the system in Kings county fully comports with due process.

Warren E. Burger:

Very Well.

Thank you, Gentlemen.

The case is submitted.