You've got the deal pretty much worked out, and while your client has resigned himself to a plea -- and you got him a good one -- he understandably wants to know what kind of time he's looking at. So you and the prosecutor troop into the judge's chambers to get his feelings about that. The two of you lay out all the pertinent facts, and your client's record. If the judge has a policy against discussing sentencing, you won't have gotten this far, but most judges will get involved in some point in the plea bargaining process. They may give you at least something vague -- "I'm looking at a midrange sentence," "Your client's a good candidate for probation" -- and sometimes they'll even tell you the specific sentence they'd impose on a plea.
On one level, that's the way it should work. The criminal justice system is basically a marketplace for prison sentences. Twenty-four out of twenty-five criminal cases will be resolved by a plea. The predominant, and often the sole, determinant factor in that bargain will be the sentence -- does the defendant go to prison, and if so, for how long. Under Ohio law, a judge exercises a huge amount of discretion in sentencing. Child porn sentences in this county run anywhere from probation to twenty-plus years. A plea bargain is a contract, and a contract is most likely to be fair if all the parties have access to all relevant information. How much time your client is going to get is the most relevant piece of information you can give him.
Of course, there's a downside to that, as could be seen from case I argued in the 8th this week. It was a stranger rape, and the case was untriable: there was a videotape, DNA, prior convictions... Four days before the trial date, the judge calls a pretrial, goes on the record, has the prosecutor recite the evidence, makes comments about the evidence to the defendant -- "I certainly think you should consider pleading," "you want to go to trial without any explanation for your DNA being there?" -- tells the defendant he's looking at 33 years on conviction, and 23 years max on the plea (and on the plea "it could be much less"), asks the prosecutor to keep the plea deal open until the trial date, and caps it off by telling the defendant that if he pleads he'll get 13 to 15 years. Four days later, on the day of trial, the defendant copped to the plea.
Now, this is low-hanging fruit. You can argue about when in particular this courtroom session jumped the shark, but you can't argue that it didn't. So if you're an appellate panel, you just write an opinion reciting what I just said and concluding that under the facts here, the judge went over the line.
The problem with that approach is that this is going to come up a lot. Last year, in Missouri v. Fry, the Supreme Court reversed a conviction because the defendant hadn't been told by his lawyer of a plea offer. Before that decision, you had a couple of judges having a session before trial where the plea offer was put on the record; now, it's commonplace. Just how far a judge can go in his conduct of that hearing is a critical issue, and it needs to be resolved. One of your jobs as an appellate court is to give guidance to the courts below. If you decide this on a case-by-case basis, you're going to wind up with a lot of cases. The better course is to lay down some hard and fast rules, some bright lines to guide the common pleas judges.
What would those rules be? Well, one of general guidance: the purpose of this hearing is to let the defendant know what the plea offer is, and the farther you get away from that, the more likely you get into trouble. I have a problem with the judge even telling the defendant of the potential maximum sentences; as I explained here, because of a variety of factors -- allied offenses, restrictions on consecutive sentencing -- what a judge tells your client he could be facing on conviction can be decades away from the likely sentence. I don't think there's any way to really avoid that, though. Like I said, a plea bargain's a contract, and the maximum, however unlikely it is to be imposed, is relevant information. A fairer way of doing it, though, would be to give the minimums, too.
Second rule: You don't talk about the evidence. Ever. There's no reason to do this. Wouldn't the evidence be information relevant to a plea? Absolutely, but it's the lawyer's job, not the judge's, to communicate it. You simply can't have the judge giving the defendant his evaluation of the evidence. We'd be talking a lot more about the Super Bowl right now if the refs had come out right before the game and announced that to them, it looked like the Ravens were the better team. Same thing here. Speculating on the outcome of a trial that you're going to be conducting is wholly inconsistent with any concept of impartiality.
Third rule: You don't promise a particular sentence. It's hard to conduct this kind of hearing without implicitly conveying to the defendant that you want him to plead. If you promise him x number of years, the unspoken premise is that if he doesn't plead, you're likely to be unhappy, and he'll get x + y years.
This has to be narrowly construed, though, because of what I said at the top: information as to the particular sentence is highly relevant. Completely forbidding a judge from imparting that information, even to counsel, is not desirable. The rule should apply only to Frye hearings; again, the purpose of the hearing is to inform the defendant of the plea offer, not the wisdom of accepting it. Of course, that line can be easily blurred, too; a lot of judges have the Frye hearing just before they bring the jury out. That's one reason to have the Frye hearing at least a few days in advance of trial, and here's another: the purpose is to make sure that the defendant is informed of the plea offer, and it doesn't make much sense to do that if he has no time to evaluate that offer.
It's a tough balancing act, though, because context is all important here. There's a fine line between giving the defendant relevant information and implicitly coercing him into taking a plea. A judge telling a defendant during a plea hearing that he's indicated to the lawyers that he's likely to impose a mid-range sentence, depending on what is presented at the sentencing hearing, is a long way from telling a defendant you'll give him thirteen years on a plea right after you've told him you don't think much of his chances of winning a trial.
We'll see what the court comes up with, but it's likely that in a month or so we'll know more about what a court can do in a Frye hearing than we do now.