Technical/legal question about plea bargaining in California/Federal court?

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  • Technical/legal question about plea bargaining in California/Federal court?

    Is it the usual practice in a California state or federal court for a plea bargain to be drawn up using the 11(c)1(b) type of plea agreement, or is in fact the use of 11(c)1(c) more common?

  • #2
    Re: Technical/legal question about plea bargaining in California/Federal court?

    Are you focused on whether the government's sentencing recommendation is most-typically binding/not-binding on the judge?

    If so, are you writing a brief or a screenplay? If the latter, aside from the few who may know the answer to your question, I don't think anyone cares. Even on TV shows and movies that employ real, experienced criminal lawyers as advisers, they screw-up/ignore such things all the time.

    IOW, if (B) is more common and your character says (C) is more common, I think you're OK.

    IOW #2, I don't know the answer.

    Comment


    • #3
      Re: Technical/legal question about plea bargaining in California/Federal court?

      Originally posted by Manchester View Post
      Are you focused on whether the government's sentencing recommendation is most-typically binding/not-binding on the judge? If so, are you writing a brief or a screenplay?
      Clearly I'm writing a screenplay (why else would I be here?).

      The idea is that the protagonist plea bargains, but gets a *much* heavier sentence than was agreed (15 years vs 18 months suspended).

      Under 11(c)1(b) the defendant is screwed and can't appeal, because the sentence in the agreement is only a recommendation, whereas 11(c)1(c) binds the court to the sentence agreed to.

      What I'm trying to figure out is whether the first of the two (11(c)1(b)) is a plausible scenario under current practices of the court system, so that the lawyer defending my protagonist gets taken unawares.

      Comment


      • #4
        Re: Technical/legal question about plea bargaining in California/Federal court?

        Long story short, a federal crime to which a defendant pleads guilty that could by statute carry an 18-month sentence or a 15-year sentence... And the gov't agrees or acquiesces to 18 months based on the federal sentencing guidelines... If the sentence handed down is 15 years, it seems to me that that would be outside the guidelines (even if within the statute). Below the guidelines, gov't may appeal; Above the guidelines, defendant may appeal.

        But IMO in a screenplay that doesn't matter. In any event, that's all I know.

        As for a lawyer being taken unawares... Guys end up on death row because a lawyer didn't know basic X, Y, Z rules of procedure/evidence. **** happens. Besides, it's not what's real, it's what you can cause an audience to believe. Even if it is real, it might not be believable.

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        • #5
          Re: Technical/legal question about plea bargaining in California/Federal court?

          Manchester, I appreciate your reply.

          Let's assume everyone in the scene is competent and that only the judge is corrupt. All I need, as you say, is for the audience to believe that the scene is plausible and doesn't respond with "no effin' way!". All I'm trying to do here is cut down on the amount of exposition I need to set things up.

          FYI, this scene is supposed to be the cold open to a new pilot I'm writing. So when the sentence goes down, we slam to the credits, and when we return it's 15 years later, and our protagonist is walking out of the prison gates into a brand new world.

          Comment


          • #6
            Re: Technical/legal question about plea bargaining in California/Federal court?

            I would suggest a pre-sentencing conference between the attorneys and the judge. The prosecutor explains why the recommendation is made and the defense attorney adds more good things about his client. The judge smiles and nods his head, leading all to believe the recommendation will be followed. Alternatively the judge comments, "I see this is an exceptional case" or language to mislead the attorneys. Then the hammer falls. Ideas to consider.

            Comment


            • #7
              Re: Technical/legal question about plea bargaining in California/Federal court?

              California has CR-101, a seven-page plea-bargain agreement form that closely follows the federal rules in the state courts.

              Under Rule 11 of the Federal Rules of Criminal Procedure:
              Rejecting a Plea Agreement. If the court rejects a plea agreement containing provisions of the type specified in Rule 11(c)(1)(A) or (C), the court must do the following on the record and in open court (or, for good cause, in camera):

              (A) inform the parties that the court rejects the plea agreement;
              (B) advise the defendant personally that the court is not required to follow the plea agreement and give the defendant an opportunity to withdraw the plea; and
              (C) advise the defendant personally that if the plea is not withdrawn, the court may dispose of the case less favorably toward the defendant than the plea agreement contemplated.

              Withdrawing a Guilty or Nolo Contendere Plea. A defendant may withdraw a plea of guilty or nolo contendere:

              (1) before the court accepts the plea, for any reason or no reason; or
              (2) after the court accepts the plea, but before it imposes sentence if:
              (A) the court rejects a plea agreement under 11(c)(5); or
              (B) the defendant can show a fair and just reason for requesting the withdrawal.

              Recording the Proceedings. The proceedings during which the defendant enters a plea must be recorded by a court reporter or by a suitable recording device. If there is a guilty plea or a nolo contendere plea, the record must include the inquiries and advice to the defendant required under Rule 11(b) and (c).

              Harmless Error. A variance from the requirements of this rule is harmless error if it does not affect substantial rights.

              In the script's opening, when the court informs the defendant it is rejecting the plea-bargain agreement, the defendant should withdrawn the guilty or nolo plea before the court pronounces sentence. The defendant didn't do that because he was not informed of his right to do so by either defense counsel or the court; not a harmless error in regards to substantial rights it should be argued.

              Why would the court not accept the negotiated plea-bargain agreement? A likely reason could be the pre-sentence report (gravity of other crimes), or a request by a victim that the court not accept the agreement in which the victim was not consulted or had little input. The judge might know the victim, which raises conflict issues, or the court might believe (as does Alaska) that mandatory prosecution is favorable to plea-bargains, which represent over 90% of all criminal cases today. Prosecution of the defendant could result in the same outcome: court pronouncing maximum sentence, but if this is the routine case with the judge it seems a conflict to try and effect legislation by failing to accept recognized plea-bargain agreements. It's unclear if the script will tell us the court's motivation in rejecting the plea agreement.

              Once sentence is pronounced, before which the court has informed the defendant it rejects the plea-bargain, and prior to which no withdrawal of guilty or nolo plea was made, the defendant's remedies seem to be to argue inadequate legal representation, or abuse of authority on the court's part in failing to inform defendant of his right to withdraw his guilty or nolo plea prior to said sentencing under both the federal and state rules of criminal procedure.

              You have defendant coming out of prison 15 years later, which suggests that he took what sentence the court pronounced, or appealed his case and lost (could be a contract vs. criminal procedure appeal). In either case, the defendant's had a lot of time to reflect upon 'justice' or the lack thereof. Revenge? Rehabilitated? Good luck with the script.

              Comment


              • #8
                Re: Technical/legal question about plea bargaining in California/Federal court?

                Scriptonian,

                thanks for the words, but let's see if I can be clearer:

                In my script, the judge *accepts* the plea bargain.

                But because it was negotiated up front under rule 11(c)1(b) (and I read the same pages you're pointing me to), he's not bound by the sentence agreed to between the prosecution and the defense. That sentence is a *recommendation* and not binding in this case (the defendant in the script is a hacker who agrees to plead guilty to a couple of counts of illegally accessing a computer system).

                The twist is while everyone's aware of the rules & terms, they negotiated in good faith, not expecting the judge to so dramatically ignore the prosecution's recommendations, given that he's never done anything like that before. And of course, when the sentence is issued, a point of no return is passed for the defendant (you can't appeal a sentence if you plead guilty except under some extraordinary circumstances).

                Comment


                • #9
                  Re: Technical/legal question about plea bargaining in California/Federal court?

                  i say this as an attorney who has done federal criminal defense and as a screenwriter: nobody is going to appreciate the distinction you are trying to draw here. not the casual viewer, not the professional lawyer. all they need to know is judges have discretion to reject plea bargains and are not bound by any agreement reached between the opposing counsel.

                  if you try and make this fine legal point in a script or movie not only will you likely bore the reader/viewer but there is nothing particularly dramatic about it, so it's probably not going to make for a strong plot point. the drama comes from the defendant thinking he's going to get the deal he bargained for but the judge, to everyone's surprise, throwing out the deal. focus on that, not the statutory minutae.

                  anyway, you can always appeal the judge's decision if you believe it was erroneous.

                  Comment


                  • #10
                    Re: Technical/legal question about plea bargaining in California/Federal court?

                    Originally posted by JoeBanks View Post
                    nobody is going to appreciate the distinction you are trying to draw here. not the casual viewer, not the professional lawyer.
                    THIS!

                    I say "this" as a practicing attorney. To be completely honest my eyes kind of glazed over when reading through the question and responses. And I do this law sh*t for a living!

                    I appreciate that you are trying to be accurate. I ABSOLUTELY appreciate that, because there is no shortage of lazy writers who don't bother doing any research.

                    I think I understand the scenario you are proposing and let me see if I can explain why the "corrupt judge" thing doesn't work in your scenario:

                    But because it was negotiated up front under rule 11(c)1(b) (and I read the same pages you're pointing me to), he's not bound by the sentence agreed to between the prosecution and the defense. That sentence is a *recommendation* and not binding in this case (the defendant in the script is a hacker who agrees to plead guilty to a couple of counts of illegally accessing a computer system).

                    The twist is while everyone's aware of the rules & terms, they negotiated in good faith, not expecting the judge to so dramatically ignore the prosecution's recommendations, given that he's never done anything like that before. And of course, when the sentence is issued, a point of no return is passed for the defendant (you can't appeal a sentence if you plead guilty except under some extraordinary circumstances).
                    You are sort of correct. Yes, at the end of the day ANY plea agreement is simply a recommendation to the court of a proposed sentence, whether it is a range, whether it is a stipulated sentence, whether the it is an open sentence to particular counts, whatever. The Court (judge) MUST accept any plea agreement before it goes into effect.

                    You are correct also that the judge can reject the plea agreement (had that happen) or more specifically the sentencing concessions. For example, let's say someone pleas guilty to a robbery and the statutory sentencing range is 4-12 years in prison (meaning if the person is sentenced to prison for the offense the judge cannot sentence him to less than 4 and cannot sentence him to more than 12). The plea agreement calls for a stipulated sentence of 4 years. The judge can say okey doke, plea goes into effect and dumbass is sentenced OR the judge can say, nope not going to agree to the recommended 4 years -- I want MORE years than that!

                    I think this is where you are misunderstanding what happens. You seem to be under the impression that if the judge rejects the agreement then the guilty plea has been irrevocably entered and tough sh*t for the defendant -- he's subject to the whim of whatever the judge wants to do at that point. That is not true. If that were the case no one in his right mind would enter a plea agreement because what would be the point? It's non-binding and the judge can sentence you exactly the same as if you'd gone to trial (and at least with trial you can hope for acquittal or hung jury or even that there will be sufficient appellate issues to get the case kicked back if convicted).

                    If the judge says I'm not accepting this sentencing concessions agreement then the defendant can say, fine, I'm not going forward with a guilty plea and then everyone is back to square one. It's one of those safeguards to prevent exactly the scenario you are proposing.

                    Now a defendant could agree to a range, say 4-12, hoping he gets 4 only to find the judge imposing the max 12. Disappointing to the defendant, no doubt, but that does not a corrupt judge make -- the defendant is still being sentenced exactly within the range he agreed to.

                    Take the Roman Polanski situation back in 1977 or whenever it was. That is held up by Polanski supporters as an example of corrupt judges etc, etc. As I understand it, not having studied that particular case in great detail, he entered essentially an open plea agreement, meaning the judge could sentence him to probation or prison. Polanski and his attorney knew that when he entered the plea. They just hedged their bets that the judge would grant probation (and Polanski freaked out and ran when it appeared that might not be the case). Ignoring improprieties of possible ex parte communications between the judge and prosecutor for a second, if the question is whether the judge would have been out of line to impose prison the answer is no. That was well within the agreement that was made.

                    Long story short if you are looking for the corrupt judge angle, the way you are going about it isn't going to work because it's not really possible and even if you did have a judge who pulled some crazy sh*t like that, the case would get kicked back on appeal fairly quickly.

                    Comment


                    • #11
                      Re: Technical/legal question about plea bargaining in California/Federal court?

                      Hey froonly, most likely any spark of life left in your idea has been crushed by the cruel heels of technical jargon. But don't be discouraged. A few weeks ago I watched for the umpteenth time one of my favorites, a legal drama that could not possibly occur as written. The trial scenes were full of major legal problems, the judge did things he could not have done and the whole premise was off-kilter. No, I won't go into the particulars. The Verdict. Keep on writing.

                      Comment


                      • #12
                        Re: Technical/legal question about plea bargaining in California/Federal court?

                        JoeBanks, sbbn, many thanks for the replies. I appreciate you guys giving me the straight answer I was looking for (although, while I humbly bow to your expertise, I'm not yet 100% convinced I'm wrong about this loophole )

                        jmpowell7: not discouraged. Far from it. Abandoning that scene has forced me to come up with a better teaser. Which is good, right? (and you're right: The Verdict is an awesome movie.)

                        Comment


                        • #13
                          Re: Technical/legal question about plea bargaining in California/Federal court?

                          froonly, I agree with what sbbn told you: "I appreciate that you are trying to be accurate. I ABSOLUTELY appreciate that, because there is no shortage of lazy writers who don't bother doing any research."

                          And I love researching the crap out of stuff. It inspires me. But then I have to give it up.

                          Consider the HBO show, Homeland. It seems to me that those guys don't even try to get certain things right. And since I used to work in that world, some of the liberties that show takes drive me up a wall. I mean, they coulda made a lot of that story stuff work within the way things really work but, as I said, it seems that they don't even try.

                          OK, so I care a lot about real life/real rules/real laws versus the way that show depicts them. But - It seems pretty clear that no one else cares. No one else cares that Carrie works with Top Secret stuff at her home. No one else cares how wiretap court orders really get issued. No one else cares about the lines between the CIA, NSA, and FBI. And this isn't MI or Bond or Bourne. This is a show that's pimped as being "real". But the audience and the Emmy voters just don't care. ****, even lots of people in the Intel Community don't care; lot's of 'em like the show.

                          You found the relevant criminal law/rule, you get the concept, you have your story idea. Plus, it's something an audience will accept. The fact that it is/isn't 100% spot on the state or fed rules does not matter. Which is what I tried to suggest to you at the top of this thread. And now others have said it to you with much greater detail and authority/experience.

                          Comment


                          • #14
                            Re: Technical/legal question about plea bargaining in California/Federal court?

                            Manchester,

                            I already moved on after sbbn's reply.

                            But I'd make one point: the audience will only disregard details if what's on screen *feels* true. It's not clear to me that I'm capable of making that minor plot line feel "real" without the background behind it.

                            Comment


                            • #15
                              Re: Technical/legal question about plea bargaining in California/Federal court?

                              as i tell my writers' group members when they are speccing legal dramas (and myself, when i am writing my pilot), there is "real law" and then there is "TV/movie law."

                              if you are practicing real law, in the real court with a real judge, yes, you have to get the details 100% right. if you don't, it's called malpractice.

                              if you are writing for TV/film, you only have to get it as right as makes plausible sense for the story you are trying to tell. subordinating your story to the law-as-it-is, at the expense of making it a compelling drama, is unwise.

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