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Sat, 19 Jul 2003 - Copyright: 2003 The Charlotte Observer
Contact: opinion@charlotteobserver.com
Website: www.charlotte.com/mld/observer
Author: Gary L. Wright

Federal Judge Not Taking Plea Deals

Prosecutor Says Process Will Grind To A Halt

Charlotte's chief federal judge has stopped accepting virtually all plea agreements, a move that could dramatically slow prosecutions of bank robbers, drug dealers and white-collar criminals.

U.S. Chief District Judge Graham Mullen's new policy affects plea agreements that force criminals to give up their right to appeal. Those account for almost all plea agreements in federal courts in Charlotte and the Western District of North Carolina.

Mullen, in an order issued in June, called such agreements "unconscionable" and announced he would no longer accept the deals.

"I don't think it's right," the judge told The Observer.

Noting that federal prosecutors retain their right to appeal, the judge added: "Defendants have to take their chances with judges and the government does not. Even in guilty pleas, judges can make mistakes."

Mullen also believes that appeals would pave the way for appellate courts to clarify sentencing guidelines and give judges more direction in their powers.

Federal prosecutors have asked Mullen to reconsider.

"Refusal to enforce current and future plea agreements ... is likely to bring the administration of justice in this jurisdiction to a grinding halt," Assistant U.S. Attorney David Brown wrote in a motion asking the judge to reverse his order.

Prosecutors pointed out that plea agreements require defendants to give up many of their rights, including their rights to jury trials, to confront and cross-examine witnesses, and to refuse to incriminate themselves.

Mullen's controversial order is a hot topic among Mecklenburg's criminal defense lawyers.

"It's a test of wills between Judge Mullen and the U.S. attorney's office," said one defense lawyer who practices in federal court and didn't want to be quoted by name. "Something is going to have to give. Somebody is going to get their nose skinned up over this."

Mullen doesn't talk as if he will budge -- short of a compromise that allows at least some appeals. "If the system breaks down, it breaks down," the judge said.

Some defense lawyers praise the judge's decision. Others worry that defendants without deals from prosecutors might get harsher punishments.

"Some lawyers think Judge Mullen is a hero for standing up to the government for the little guy," defense lawyer Deke Falls said. "At the same time, if the government sticks to its guns and won't change its plea agreements, defendants could be in trouble."

The plea agreements used by prosecutors in the Western District of North Carolina haven't prohibited all appeals. Defendants have had the right to appeal if they believe they didn't receive effective assistance from their lawyers or if they allege prosecutorial misconduct.

Since Mullen's order last month, prosecutors have met with the judge in hopes of reaching a compromise. They've also modified the wording in plea agreements giving defendants another limited right to appeal if judges impose stiffer sentences that are outside the deal.

Mullen is still looking into the word changes but remains skeptical the new plea agreements will satisfy his concerns about defendants' rights to appeal.

If a compromise can't be reached, the nearly 200 defendants assigned to Mullen's courtroom each year will either have to plead guilty to all charges without a deal or go to trial. Either way, they risk tougher penalties.

Most federal defendants -- about nine out of every 10 -- plead guilty. The majority do so after striking deals with prosecutors.

Mullen recognizes he wouldn't be able to hold trials for all the defendants assigned to him each year. In the past three years, 568 defendants have been assigned to the chief district judge.

"No one judge can try all the cases filed each year," Mullen said. "The system would get kind of clogged up."

In a worst-case scenario if a compromise can't be reached over the controversial plea agreements, Mullen would have no choice but to dismiss charges if defendants can't be tried to meet speedy trial laws.

Federal law requires that defendants be tried within 70 days after they are indicted. But prosecutors, because of delays from pretrial motions, often have a year or more to put defendants on trial.

"No, I don't want to be dismissing charges," Mullen said. "But if the 70-day rule gets violated, the court is required to dismiss charges."

U.S. District Judges Lacy Thornburg in Asheville and Richard Voorhees in Charlotte have not issued orders refusing to accept such plea deals.

Defense lawyers worry about their clients giving up their right to appeal, particularly if something unexpected and not addressed in the plea agreement comes up months later at sentencing that leads to a harsher punishment.

"It's a questionable practice," said defense attorney Noell Tin. "There are legal issues that can come up at the sentencing that ought to be appealed."

Defense lawyer Falls said: "I think Judge Mullen sees it as inequitable that prosecutors get to retain their right to appeal and defendants have to give up their right to appeal. There's something inherently unfair about that."

Mullen has long been frustrated with federal sentencing guidelines, which limit judges' discretion in tailoring punishments to the criminals and the facts of the case.

Mullen said his sentiments are shared by federal judges nationwide.

"There's only one person in the courtroom who is supposed to be neutral," Mullen said. "It's my belief that the sentencing guidelines restrict judicial discretion too much. They are not guidelines but legal rules judges are required to follow."

The 63-year-old federal judge said allowing defendants who plead guilty to appeal would help develop a body of appellate law on sentencings. That, he believes, would provide him and other judges with more guidelines on what they can and can't do in imposing punishments, leading to more certainty in sentences and reducing the need for appeals.

U.S. Attorney Bob Conrad declined to comment on the controversy. "We are accustomed to litigating sentencing guidelines issues in the courtroom -- not in newspapers," the prosecutor said.

In court documents, prosecutors warned that both the government and criminal defendants will be harmed by Mullen's refusal to accept the plea agreements.

Such agreements, prosecutors said, have been used in the Western District of North Carolina since at least 1995. In other districts within the 4th Circuit, which includes the Carolinas, these waivers in some form date back to at least 1989.

The 4th U.S. Circuit Court of Appeals in Richmond, Va., and other federal appeals courts have upheld plea agreements that require defendants to give up their right to appeal, the prosecutors' motion said.

Plea agreements prohibiting appeals, Brown argued in his motion, benefit both the government and defendants.

Defendants can gain concessions from the government for lenient sentences by agreeing not to appeal, the prosecutor said. The government, on the other hand, benefits by conserving resources when the cases are concluded and not appealed.

But Mullen says appeals would serve an important purpose-for both defendants and judges.

"There are issues that come up that ought to be appealable," the judge said. "The order I've issued is the only way I can assure that issues that are appealable are appealable

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