EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, September 21, 2018

Serial, Season 3, Episode 2: Judge Gaul & My Research on Judicial Participation in the Plea Bargaining Process

The second episode of the third season of Serial is interesting to me because it deals with one of my primary areas of research: judicial discretion. Sarah Koenig primarily explores the issue by looking at the behavior of Judge Daniel Gaul, whose name is even featured in the episode's title: "You've Got Some Gauls." This article from cleveland.com does a good job of laying out some of the many "colorful" decisions made by Judge Gaul based upon the discretion he's been given as a judge. In particular, the article discusses the Carlton Devon Heard case that Sarah Koenig mentions toward the end of the episode. Heard was charged with crimes such as attempted murder and felonious assault and ended up pleading guilty after Judge Gaul encouraged/coerced him to enter a guilty plea based upon saying he'd throw the book at him if he were convicted after a trial. Here's the end of Sarah's discussion of the Heard case on Serial

02 S03 Episode 02_ You_ve Got Some Gauls

So, how does the Heard case relate to my research? A few years ago, I published the article, Anchors Away: Why the Anchoring Effect Suggests that Judges Should be Able to Participate in Plea Discussions, in the Boston College Law Review. Here's the abstract:

The “anchoring effect” is a cognitive bias by which people evaluate numbers by focusing on a reference point – an anchor – and adjusting up or down from that anchor. Unfortunately, people usually do not sufficiently adjust away from their anchors, so the initial choice of anchors has an inordinate effect on their final estimates. More than 90% of all criminal cases are resolved by plea bargains. In the vast majority of those cases, the prosecutor makes the initial plea offer, and prosecutors often make high initial offers. Assuming that the prosecutor’s opening offer operates as an anchor, nearly all criminal cases in this country produce unjust results based upon an unconscious cognitive bias.

This article thus proposes a solution that most jurisdictions have rejected: Judges should be able to participate in the plea discussions. Federal Rule of Criminal Procedure 11(c)(1) and most state counterparts strictly preclude judges from participating in plea discussions, but a few jurisdictions permit judicial participation. In these jurisdictions, plea discussions commence with the prosecutor and defense counsel laying out their cases and asking for particular dispositions and the judge responding with the expected post-plea sentence. This article contends that this type of judicial participation would reduce the anchoring effect because the expected post-plea sentence would replace the prosecutor’s opening offer as the anchor and produce fairer final plea bargains. This article also argues that such judicial participation would ameliorate many of the problems associated with the current plea bargaining system.

So, essentially, I was looking at two problems with plea bargaining: (1) if the judge is completely uninvolved, the anchoring effect likely results in defendants accepting unfair plea deals; and (2) judges are sometimes informally involved in plea bargaining, resulting in the type of coercion seen in the Heard case. This is even more pronounced in a jurisdiction like Ohio, which does not explicitly ban judges from participating in plea bargaining. Instead, as the appellate court held in Heard,

Judicial participation is strongly discouraged but does not render a plea per se involuntary; the ultimate inquiry is whether the judge’s active conduct could have led the defendant to believe he could not get a fair trial, including a fair sentence after trial, and whether the judicial participation undermined the voluntariness of the plea.

Of course, a jurisdiction like Ohio has three options: First, discourage but allow judges to participate in plea bargaining, which occasionally results in reversals in cases like the Heard case but often ends in judges acting in sort of a gray area where they make their own rules. Second, adopt the federal rule and completely ban judges from being able to participate in any way in plea discussions, meaning that any participating is erroneous.* Or, third, create a formal process and formal rules for judges having a clear role in the plea bargaining process. That's the route I advocate in the paper, and it's the route taken by jurisdictions such as Florida and Connecticut, with most of the players being content with how the process plays out.


*The Supreme Court held in United States v. Davila that a judge's error in participating in plea bargaining is still subject to harmless error analysis and does not lead to automatic reversal.



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