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The 9th U.S. Circuit Court of Appeals ruled this week that judges can’t nix pleas if they later decide they don’t like the sentencing conditions included in the plea bargain. In Ellis v. U.S. District Court, 04 C.D.O.S. 1029, a divided en banc panel held Wednesday that a Washington federal judge went too far in forcing a defendant, who was 16 years old at the time of the crime, to face first-degree murder — a charge that the prosecutor and defense attorney had negotiated away. In sending the case back, the court ordered that the judge be removed. “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 ongoing 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 draws 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.” The case stems from a 1999 killing that took place on federal land in Washington. Marciano Ellis was originally charged with first-degree murder in connection with the shooting death of cab driver Donald Ray Barker. A previous 9th Circuit decision held that Ellis could be charged as an adult. Ellis pleaded not guilty to first-degree murder but eventually reached an agreement with prosecutors in which he would plead to second-degree murder and receive 132 months in prison. If that agreement was rejected, Ellis had the option of backing out. The court accepted his guilty plea and ordered a pre-sentencing report. Four months later, Ellis appeared in court again to be sentenced. What exactly happened next is a subject of dispute. “Attempting to glean from the transcript of the hearing on Ellis’ motion an understanding of what actually transpired next is a bit like peering into an ever-shifting kaleidoscope,” Wardlaw wrote. Judge Stephen Trott even wrote a dissent to argue his interpretation of the record — that Judge Tanner never actually accepted the plea. After reading the sentencing report, Tanner decided that 132 months wasn’t long enough, so he rejected the whole deal, including Ellis’ plea. At that point, according to the majority, the next option should have been up to Ellis, not Judge Tanner. “The option the district court chose — injecting itself into the charging decision by vacating the plea and requiring Ellis to plead to higher charges — was not one of” Tanner’s options, Wardlaw wrote. Instead, Tanner should have kept Ellis’ guilty plea on the record and let him decide whether he wanted to continue with what would likely be harsher sentencing, according to the opinion. Both the prosecution and defense asked Judge Tanner to stick to the initial plea, which he wouldn’t do. The defense applied for a writ of mandamus, which the government did not oppose. In concurrence, Judge Alex Kozinski chimed in “to confess my befuddlement that we’re not unanimous.” He downplayed the broader implications of the decision. “While the dissent tries to swaddle the case in all sorts of meta-considerations about the titanic struggle between the judicial and executive branches over the soul of the criminal justice process � the question presented is narrow: Does a district court have � authority to vacate a previously entered and accepted guilty plea?” Kozinski wrote. “The dissent’s cataclysmic predictions about a seismic shift of power from the judiciary to the executive branch are greatly overstated. This is a single mistake by a single judge in a single case, not the sacking of Rome by the Visigoths,” he added. In order to avoid future surprises, Kozinski suggested, judges should ask a defendant’s permission to examine a presentence report prior to accepting a plea. In recent years, some judges have argued that prosecutors write plea agreements in a way that ties their hands when it come to sentencing. Stringent new sentencing laws, such as the Feeney Amendment, have reinforced for many judges that their independence is being eroded. A lawyer at Seattle’s McKay Chadwell, which represents the district court, said the office had not yet decided whether to appeal the ruling to the U.S. Supreme Court. Others involved in the case were still digesting the 84-page opinion and did not comment.

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