Opinion analysis: Court rules unanimously that federal judicial participation in guilty pleas is subject to harmless error review
on Jun 13, 2013 at 6:53 pm
Given the clear language of Federal Rule of Criminal Procedure 11(h) — providing that “a variance from this rule is harmless error if it does not affect substantial rights” — it didn’t take the Court long to rule unanimously that an error under Rule 11(c)(1) – directing that “the court must not participate in [plea] discussions” – has no different and unwritten “automatic reversal” standard. The only question among the Justices was, it turns out, how clear is this, really? Justice Ginsburg’s opinion for the Court carefully reviews the facts, the federal Rules, relevant precedents, and the “legislative history” (consisting of the Advisory Committee notes to the 1974 and 1983 amendments to Rule 11 that added the subsections at issue). This last move unsurprisingly exhorts Justice Scalia (joined by Justice Thomas) to demur that although he concurs in the Court’s ruling, the plain language of Rule 11(h) is “the beginning and the end of this case. We should not rely on the notes of the Advisory Committee.”
As detailed in my prior accounts, after Davila was indicted on multiple counts of tax fraud, and complained that his appointed lawyer “never mentioned a defense,” a magistrate judge in the Southern District of Georgia advised Davila that pleading guilty and showing acceptance of responsibility might be the only sensible course. “That means you’ve got to go to the cross,” the magistrate judge repeatedly said – the comment that probably most attracted later judicial attention. Justice Ginsburg reviews the history of the 1974 amendment to Rule 11 that added the no-judicial -participation rule, including Advisory Committee notes explaining that it is to reduce possible judicial pressure to plead guilty and to make review for “voluntariness” more clear. In this case, as Justice Ginsburg takes pains to note, the magistrate judge’s comments “were indeed beyond the pale.”
Thus the Rule 11(c)(1) violation was clear. In fact, the government conceded the error from the moment that the Eleventh Circuit, sua sponte, directed appellate counsel to brief the issue. But the question remained, in the government’s view, whether this error “affected substantial rights” under Rule 11(h). The Eleventh Circuit disagreed, however, and applied an “automatic reversal rule” (perhaps driven by the extreme remarks, as well as two other circuits that had so ruled). The Court granted certiorari to resolve the five-to-three circuit split on the question.
As the Court’s opinion notes, the government presented some plausible, even powerful, record-specific reasons to answer the “affected substantial rights” question in the negative. For example, Davila did not plead guilty until three months after the magistrate judge’s remarks; he pled guilty before a different district judge who may not have known of the prior exchange at all; and he swore he had not been pressured by anyone to plead guilty. Indeed, Davila never mentioned the magistrate judge’s remarks despite a number of district court opportunities. And even when he moved to withdraw his plea, he told the court his decision to plead guilty had been a “strategic” one to get discovery, and he did not invoke the prior judicial exchange.
The Court now explains that Rule 11(h)’s harmless error rule is subject to Rule 52’s rules “for trial court errors generally.” Thus Rule 11 errors can be subdivided into those errors which are raised in the trial court, and those that are not. The latter are subject to Rule 52(b)’s more stringent “plain error” standard – and Rule 11(c)(1) contains no “automatic vacatur” exception to these rules “without regard to case-specific circumstances.” Furthermore, while some judicial-participation errors might be so clearly prejudicial such that a circuit error would “not … warrant our attention,” that is not the case here. “Our essential point is that particular facts and circumstances matter,” and because there was no trial court objection by Davila here, his claim must be assessed “in light of the full record” to examine, on remand, “whether it was reasonably probable that, but for the Magistrate Judge’s exhortations, Davila would have exercised his right to go to trial.”
As an aside, note that while the Court understandably makes no reference to last Term’s Frye and Lafler decisions (which hold that ineffective assistance of counsel in the plea bargaining context can constitute reversible error), the Court does note that denial of counsel errors are different. They are considered “structural” and thus subject to more stringent review rules. A case granted for next Term, Burt v. Titlow, will provide the Court with an opportunity to examine the Frye-Lafler doctrine more closely, including (perhaps) standards for review and remedial questions.
But ineffective assistance errors are not Rule 11 errors. The Court reminds us today that it has previously ruled, in Vonn (2002), that a Rule 11(c)(3) error (failing to inform a guilty pleading defendant that he would have a right to counsel at trial) is subject to the general Rule 52 harmless error rule, and there is no distinction made in Rule 11 between various types of possible errors. Thus Rule 11(h) and Rule 52 apply generally, and “a silent defendant has the burden to satisfy the plain-error rule,” under Vonn and, today, under Davila. Unlike the Sixth Amendment’s guarantee of assistance of counsel, the no-judicial participation rule is “not one impelled by … any … constitutional requirement.” Indeed, the Court notes, a number of states provide for judicial participation in plea discussions by statute.
“Having explained why automatic vacatur of a guilty plea is incompatible with Rule 11(h),” the Court left “all remaining issues” for remand.
Justice Ginsburg’s discussion of the Advisory Committee notes drove Justice Scalia (joined by Justice Thomas) to publish a one-paragraph opinion “concurring in part and concurring in the judgment.” Justice Scalia has previously written in concurrence (as he reminds us here) that the Advisory “Committee’s view is not authoritative,” and that when “the text of the Rule conclusively resolves the question” the Court ought not rely on the Committee’s notes. Because Rules 11(h) calls for, “as the Court recognizes, … across-the-board application of the harmless error prescription,” the Court ought say no more.
In Plain English: A federal procedural rule (Federal Rule of Criminal Procedure 11) prohibits judges from “participating” in guilty plea negotiations (even though a number of states allow it). Here, a magistrate judge told Davila that maybe he should “go to the cross” and consider pleading guilty and asking for mercy. Three months later, Davila did plead guilty, but in front of a different judge who may not have even known of the prior judge’s remarks. Moreover, Davila swore under oath that no one had pressured him to plead guilty, and he later said that he had pled guilty for “strategic” reasons and he never mentioned the first judge’s remarks. Subsection (h) of Rule 11 says that errors under the rule should not result in reversal unless they “affect substantial rights.” But the appellate court here said reversal was “automatic.” Today the Supreme Court unanimously reversed, ruling that the appellate court must decide “in light of the full record” whether Davila would have decided to not plead guilty if not for the first judge’s remarks. Otherwise, the error of the first judge “participating” in plea discussions is harmless and should not cause a reversal of Davila’s guilty plea.