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Argument recap: Nothing surprising except who sits where

This little-noticed case (United States v. Davila ) was argued Monday, addressing the question whether every “judicial participation” violation of Federal Rule of Criminal Procedure 11(c) requires “automatic reversal,” despite Rule 11(h)’s direction that harmless error review should be applied to all Rule 11 “variance[s].”  As my preview indicated, the answer plainly seems to be “no,” with reversal of the Eleventh Circuit’s “automatic reversal” standard foreordained.  The only question remaining seems to be “how, exactly?”   On that question the Justices expressed a number of thoughts, although none seem likely to supplant Rule 11(h)’s existing harmless error direction.  Justice Scalia, as well as Justice Thomas, saw no need to say a word.

Soon after Davila was indicted, a magistrate judge made some rather strong statements to Davila (an apparent tax protestor who filed false refund claims for dozens of state prisoners) that he should “accept responsibility” and look for mercy at sentencing.  A Rule 11(c) violation seems apparent, because that Rule directs that federal judges “must not participate” in plea discussions.  On the other hand, Davila did not plead guilty until three months later, and before a different judge (the district judge), who received Davila’s assurance at that time that no one had pressured him to plead guilty.  In addition, when Davila later moved pro se to vacate his plea, he did not mention the magistrate’s earlier statements as a reason.  And because the magistrate made his statements at an ex parte hearing where the prosecutor was not present, the government was unable to intervene and possibly correct, or at least address, the violation.  Despite these facts, the Eleventh Circuit reversed under an old “automatic reversal” precedent, even while noting that other circuits apply Rule 11(h)’s harmless error standard.

Arguing on behalf of the United States, Assistant to the Solicitor General Eric Feigin used only about half his allotted opening time (seventeen of thirty minutes), and spent only two minutes in rebuttal.  While the Justices seemed disinclined to adopt his failure-to-object “plain error” argument, they were otherwise untroubled by his arguments for reversal here.  He assured them that in some cases, a Rule 11(c) “judicial participation” violation would indeed be prejudicial, and at that they appeared satisfied.

Davila’s side was then argued by thirty-five-year old Robert Yablon,  an associate at Orrick who has the distinction of having clerked first for Justice Ginsburg, and then for Justice Sotomayor after the latter was appointed.  Yablon stressed the disturbing nature of the magistrate’s comments in this case, and argued that, in reality, such “judicial participation” comments that pressure a defendant to plead guilty will almost always be found prejudicial, so that a case-by-case harmless error review is unnecessary and inefficient.  The Justices did not appear to accept that, however, noting that various hypotheticals would make line-drawing necessary as well as difficult.  “This is really a job for the rules committee,” Justice Breyer opined at one point, and Justice Ginsburg noted that “one problem with calling [it] structural error” is that a number of states allow some degree of judicial participation in plea negotiations.  “No jurisdiction endorses judicial exhortations to plead guilty,” responded Yablon.  But ultimately he offered a fallback position: “at least … give very strong indications that comments like this cannot be written off.”  He asked that the Court “provide … guidance” by holding that the error in this case was not harmless.  However, no Justice appeared to agree with that fact-specific finding on this record, and so a remand for further review under the harmless error standard seems inevitable, even if some Justices express dissatisfaction with the judicial comments in this case.

Perhaps the most entertaining moment – a humorous “rookie moment” that even Yablon referred to as “embarrassing” – came when Justice Kagan fired a question at Yablon.  “First, Justice Sotomayor,” Yablon began to respond, and then he said “I’m so sorry.”  “That’s not the first time that has happened,” noted Justice Sotomayor, apparently referring to the misidentification (without the audio transcript it is impossible to hear the tone, but I imagine it was good-natured).  “You worked for her too,” noted Justice Kagan, apparently referring to Justice Sotomayor.  Responded Yablon:  “That makes it that much more embarrassing.  She used to sit over there.”  Yablon appeared to refer to the physical fact that, when a new Justice is added to the Court (as Justice Kagan was after Yablon clerked for Justice Sotomayor), the Justices “switch ends” of the bench, moving from the far right seat to the far left seat (as you face the Justices).  I only wish I could see the video to watch Yablon’s hand movements as he presumably indicated from right to left…. Oh, wait, there is no video.  When will that twenty-first century come, anyway?

Expect the nine-zero reversal soon, with another little-noted summary from yours truly.

Recommended Citation: Rory Little, Argument recap: Nothing surprising except who sits where, SCOTUSblog (Apr. 18, 2013, 4:08 PM),