SAN FRANCISCO — There’s at least one group that won’t be gathering around the table this holiday season: federal prosecutors, defense lawyers and Northern District judges.
Responding to a recent Supreme Court decision frowning on judicial involvement in plea discussions, the U.S. attorney’s office has quietly withdrawn from criminal settlement conferences, to the disappointment of the Bay Area defense bar.
Local lawyers say the conferences obviated the need for trial in many cases. The magistrate judges often tapped to supervise the sessions could break a logjam in a case by prompting a prosecutor to see the matter in a new light or prodding a defendant to come to grips with his predicament, said Palo Alto defense lawyer Thomas Nolan Jr. of Nolan, Armstrong & Barton.
“You’re going to have people going to trial who have no interest in going to trial,” Nolan said. “They only want to be able to get fairness in the resolution of the case, and the only way to do that is for each side to be able to privately talk to the judge about their strengths and weaknesses.”
U.S. Attorney Melinda Haag said she suspended the conferences after the Supreme Court heard oral arguments in U.S. v. Davila, a case in which a Georgia defendant pled guilty after a magistrate judge advised him that he would receive a softer sentence. After the Supreme Court and the solicitor general concluded that the sessions violated Rule 11 of the Federal Rules of Criminal Procedure, Haag made the suspension permanent.
“When the solicitor general and the Supreme Court tell us that it violates Rule 11, to agree to a settlement conference would be to invite error into the record,” Haag said in an interview.
But some local defense lawyers question whether the Supreme Court’s June decision required the U.S. attorney’s office to change course.
“I don’t think Davila really changes the law but simply reaffirms it,” said Walter Brown, a white collar partner at Orrick, Herrington & Sutcliffe who served as an assistant U.S. attorney in the Central District. “I don’t think that is a reason to abandon wholesale a practice that a lot of people felt was valuable.”
Northern District judges had tried to toe the line by ensuring that the conferences were not supervised by the same judge steering the case. But Haag noted that the court took the same precautions in Davila.
“The concern is that judicial involvement in plea dicussions places undue pressure on defendants to enter into guilty pleas, which is the reason that Rule 11 was promulgated to begin with,” Haag said.
State courts allow judges to have a hand in plea bargaining. But given Rule 11, the Northern District was one of few federal courts in the country to sponsor settlement conferences. And the local U.S. attorney’s enthusiasm for them waxed and waned. Former U.S. Attorney Joseph Russoniello refused to send line prosecutors to the meetings, sparking a firestorm of criticism in the defense bar, lawyers say. Under Haag, the office participated until the Davila decision came down.
The settlement conferences were typically requested by defense lawyers who held them more dearly than federal prosecutors. But Nolan is hopeful that the powers that be in the Northern District will want to revive the sessions once federal prosecutors and judges see the costs of trying cases that might otherwise settle.
“It’ll have a negative impact on all of the Northern District’s functions,” he said. “We don’t have the resources to try multidefendant cases that should be settled.”
Nolan said the U.S. attorney’s office withdrew from a settlement conference that had been scheduled in one of his cases, which involves allegations of illegal gratuity bribery with a public entity. The case is now headed to trial.
Asked if that trial could have been avoided with a settlement conference, Nolan responded, “No doubt in my mind.”
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