Improper involvement by a judge in plea bargaining doesn’t automatically mean a guilty plea must be tossed out, the U.S. Supreme Court ruled on Thursday.
The 9-0 decision came in a federal tax fraud case out of Augusta, Ga. The high court called remarks by a federal magistrate judge who handled the case "beyond the pale." But it added that the Atlanta-based U.S. Court of Appeals for the Eleventh Circuit should have considered, before tossing the conviction, whether the remarks actually led the defendant to plead guilty.
Thursday’s ruling was remarkable not just because the high court tossed a pro-defense decision by the Eleventh Circuit, generally perceived as friendly to prosecutors. The case made it all the way to the Supreme Court — a rare feat — even though the defendant’s court-appointed counsel initially told the Eleventh Circuit there was no basis for the defendant to appeal.
The high court sent the case back to the Eleventh Circuit to consider whether the defendant was harmed by the magistrate’s comments.
At the heart of the case was a 2011 hearing addressing Anthony Davila’s request to fire his court-appointed attorney, Michael Loebl of Fulcher Hagler in Augusta. A court reporter, but no prosecutor, was invited to the hearing.
Davila, who, according to an appellate brief by Loebl, was being treated for schizophrenia, complained to U.S. Magistrate Judge W. Leon Barfield that Loebl hadn’t discussed any defenses with him. Barfield responded that advising a client to plead guilty was "oftentimes…the best advice a lawyer can give his client."
Barfield told Davila that "there may not be viable defenses to these charges" and that the only thing at his disposal was accepting responsibility for his crimes as a way to get a reduced sentence, according to transcript excerpts in court records.
Accepting responsibility, Barfield told Davila, would require him to "go to the cross" and "tell it all, Brother" to the probation officer preparing his sentencing report.
Barfield rejected Davila’s request for a new lawyer, telling Davila that Loebl was "one of the finest law clerks I ever had." Three months later, before U.S. District Judge J. Randal Hall, Davila pleaded guilty to one count of the 34-count indictment, conspiracy to defraud the United States by obtaining false tax refunds.
Davila later was given permission to represent himself as the case proceeded in the district court, with Loebl assigned to the role of standby counsel. Hall subsequently sentenced Davila to 115 months in prison.
When Davila appealed, the Eleventh Circuit assigned Loebl to handle the case, but Davila persisted in trying to fire the lawyer, and Loebl asked to be allowed to withdraw. He filed a so-called Anders brief, named after the 1967 U.S. Supreme Court decision Anders v. California, 386 U.S. 728, which says an appointed defense attorney who finds a client’s appeal wholly frivolous should so advise the court.
But the Eleventh Circuit, in an order signed by now-Senior Judge J.L. Edmondson, directed Loebl to review the issue of Barfield’s comments and either file a new Anders brief addressing the matter or file a brief supporting Davila’s appeal on the merits. Loebl chose the latter option, arguing that the magistrate’s comments meant the appeals court should vacate Davila’s guilty plea and reassign the case to another judge.
In response, federal prosecutors conceded that Barfield committed error in that his comments "strayed beyond" the Federal Rule of Criminal Procedure 11(c)(1)’s prohibition against judicial involvement in plea negotiations. The government argued that Davila’s conviction should be upheld because he had not shown it was likely that, but for the magistrate’s comments, he would not have pleaded guilty. The government noted that Rule 11(h) provides that a violation of Rule 11 "is harmless error if it does not affect substantial rights."
In December 2011, the Eleventh Circuit panel of judges Gerald Tjoflat and William Pryor Jr. and Senior Judge Phyllis Kravitch sided with Davila. The unsigned opinion said the rule against judges stepping into plea negotiations was a bright line and, under the court’s precedent, Davila didn’t need to show he had been harmed in any way. The judges directed the district court’s chief to reassign the case to a new district judge with instructions that Barfield be disqualified from handling the case further.
Citing a circuit split on the issue, and noting that the Eleventh Circuit was in the minority on the matter, the Justice Department persuaded the Supreme Court to take up the case. In April, assistant to the solicitor general Eric Feigin argued for the government and Robert Yablon, a senior associate in Orrick, Herrington & Sutcliffe’s Washington office, appeared for Davila.
"The Magistrate Judge’s repeated exhortations to Davila to ‘tell it all’ in order to obtain a more favorable sentence…were indeed beyond the pale," Justice Ruth Bader Ginsburg wrote for the court. She noted the government’s concession that Barfield had violated Rule 11(c)(1). But she said that didn’t mean Davila’s conviction must be reversed, pointing to Rule 11(h)’s admonition that a violation of Rule 11 may be harmless error.
Had Davila pleaded guilty soon after Barfield told him that might be the best thing to do, Ginsburg wrote, the Eleventh Circuit’s mistake "might have been inconsequential." But, she said, "Our essential point is that particular facts and circumstances matter."
She noted that Barfield’s comments came more than three months before Davila pleaded guilty before a different judge. There’s nothing in the record to suggest that the judge knew about the magistrate’s remarks, Ginsburg noted, adding that Davila told the district judge that no one had pressured him into pleading guilty.
Ginsburg also noted that when Davila, proceeding pro se, asked the district judge to let him withdraw his guilty plea, he never pointed to Barfield’s comments as a basis for relief. Instead, he argued that his decision to plead guilty was "strategic," designed to get the prosecutor to correct misinformation about the conspiracy count.
The justices told the Eleventh Circuit to consider "all remaining issues," including, Ginsberg suggested, the standard by which the extent of any harm to Davila should be judged.
Justice Antonin Scalia, joined by Justice Clarence Thomas, wrote a one-page concurrence quibbling that Ginsburg shouldn’t have considered the notes of the committee that advises the federal judiciary on the drafting of the Federal Rules of Criminal Procedure, given that the committee’s view is not authoritative and the text of the rule is clear.
Efforts to obtain comment from Yablon and the Justice Department were unsuccessful.
The case is United States v. Davila, No. 12-167.
Alyson M. Palmer can be contacted at firstname.lastname@example.org.
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