Federal Rule of Criminal Procedure 11(c)(1) is clear.  It states that federal judges “must not participate” in plea discussions between a defendant and the United States.  There are sound policy reasons that support such a strong line. There is an inherent friction between the roles of judge and participant in plea negotiations.  The involvement of a district court judge or Magistrate-Judge in what is by nature a rather adversarial process could easily be perceived a coercive by a defendant, especially if the judge comments, even in passing, on the case’s eventual outcome or the quality of the evidence.

But what should the remedy be is this rule is broken?  If a federal judge undertakes a role in plea negotiations, must a resulting plea be thrown out in all circumstances? Can there be no middle ground? This issue is now before the United States Supreme Court, which this past week agreed to hear United States v. Davila, a case out of the 11th Circuit.

Mr. Davila was indicted by a federal grand jury in Georgia. He was charged in a 34-count instrument alleging that he had submitted false federal income tax refund claims utilizing stolen identities belonging to Georgia state prison inmates.  He supposedly garnered over $400,000 as a result of this conduct.

Mr. Davila was represented by court appointed counsel whom (he says) never discussed any option with him other than pleading guilty.  At some point, Mr. Davila sought a hearing before the court seeking to replace this lawyer.

At the resulting proceeding before a Magistrate-Judge, the court denied Mr. Davila’s application for new counsel, but then went on to tell Mr. Davila that there might be no viable defense to his case, that a plea of guilty might serve to reduce his eventual sentence and that pleading guilty is often “the best advice a lawyer can give.”

Mr. Davila ended up taking this advice.  He pled guilty to one count of conspiracy—the other 33 counts were dismissed.  He was sentenced to 9 and one half years in jail.

The 11th Circuit threw out this conviction, entered a plea of not guilty and disqualified the Magistrate-Judge from future participation in Mr. Davila’s matter.  The court found that even if motivated by a good faith desire to help the defendant understand his rights, the comments by the Magistrate-Judge were inherently coercive and prejudicial.

The government then appealed, relying on several other appeal court decisions that require an actual showing of prejudice to the defendant by the court’s comments before relief can be accorded.  The government also seems to be arguing that there was a three-month “gap” between the offending comments and the guilty plea and that this passage of time served to dissipate any impact of the court’s comments.

For what it is worth, my view is that the rule was written in absolute terms for a reason.  While there might well be times that the participation of the Court in difficult plea negotiations could be helpful (very often to the defense), the risks clearly outweigh the potential benefits. Moreover, the appearance of federal judges as unbiased and “above the fray” in plea negotiations is an important value well worth preserving.   Plea negotiations should be between the defendant, his counsel and the United States.

A decision may come as soon as this June.