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San Francisco�The 9th U.S. Circuit Court of Appeals has ruled that judges can’t later disallow a plea if they decide that they don’t like the sentencing conditions included in the plea bargain. A divided en banc panel held that a Washington federal judge went too far in forcing a defendant, who was 16 years old at the time of the 1999 crime, to face a charge of first-degree murder, which the prosecutor and defense attorney had negotiated away. In sending the case back, the court ordered that the judge be removed. Ellis v. U.S. District Court, No. 04 C.D.O.S. 1029. “Because the prosecutor represents the executive branch, the district court’s reinstatement of the first degree murder charge over the government’s objection disregarded the traditional requirement of separation of powers-that the ‘judiciary remain independent of executive affairs,’ ” Judge Kim McLane Wardlaw wrote for the majority. In dissent, judges Andrew Kleinfeld and Ronald Gould were blunt about what they believe the case will do in the debate over whether prosecutors have gained too much control over sentencing at the expense of judges. “Today’s decision marks a substantial shift from judicial to executive control over much of the criminal law process,” according to their dissent, which then drew a distinction between charge bargains and sentencing bargains. “Today we have cut the judiciary out of the charge-bargaining process.” Wardlaw disagreed, saying it was Judge Jack Tanner who stepped on prosecutors’ toes and violated the federal court rule that governs plea bargains. “While the district court did not violate Rule 11′s proscription against participating in plea negotiations, it effectively and improperly inserted itself into the charging decision by vacating Ellis’ plea and reinstating the first degree murder indictment,” Wardlaw wrote. “The procedures contemplated by Rule 11 guard against an intrusion of this nature into the separate powers of the executive branch.”

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