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In a 2013 report titled “An Offer You Can’t Refuse,” Human Rights Watch reported that 97 percent of federal drug defendants plead guilty. The alternative, according to the report, is that the defendants will spend an exorbitant amount of time in prison if they elect to stand trial.
 
Rule 11 of the Federal Rules of Criminal Procedure permit the Government and defense attorneys to discuss and reach a plea agreement. These negotiations are off-limits to the trial judge. Once an agreement is disclosed, however, the judge is required to take a more active role by personally addressing the defendant in open court to determine that the defendant has voluntarily entered into the agreement free of any threats, force, or promises not specified in the agreement.
 
On May 2, 2014, the Fifth Circuit reversed a drug conviction in which the judge had inserted himself into plea negotiations. Emmanuel Hemphill pleaded guilty in a U.S. District Court in the Western District of Texas to two drug charges: conspiracy to possess with intent to distribute cocaine base and one count of possession with intent to distribute cocaine base. As part of a plea agreement, the judge sentenced Hemphill to two five-year concurrent prison terms.
 
Hemphill was represented by competent defense counsel who engaged in good-faith plea negotiations with prosecutors to fashion a fair and appropriate Rule 11 plea agreement. Hemphill was not interested; he was also being assisted by a fellow jailhouse inmate lawyer who helped him prepare and submit several pro se motions to the court prior to his scheduled September 24, 2012 trial date. Four days before the trial (September 20), the court conducted a pretrial docket call. The Fifth Circuit described what happened during this court hearing:
 
“ … Defense counsel announced that the defense was ready to proceed with trial as scheduled. The district court then noted that Hemphill faced two different charges, which could result in consecutive sentences. The court asked the prosecutor about the statutory minimum and maximum sentences, and the prosecutor informed the court that because of the notice of enhancement Hemphill faced a minimum of ten years and a maximum of life in prison. The court addressed Hemphill personally, stating that it ‘did not want to get too much involved in this, but you look like a nice young fellow.’ The district court noted that the handwriting on Hemphill’s pro se motions was the same as on motions filed by a defendant named Williams, who had appeared before the court the previous week. The district judge stated that Williams had been charged with similar crimes as Hemphill and had been facing a minimum of twenty years in prison, although the Government had offered a five year plea deal. The court stated, ‘[a]nd the case took a day and a half, two days. I mean I’ve got plenty of time’” The court then stated:
 
“’So that’s not a problem if you want to do that. But I — and by the way, we went through a very extensive, because of — and you may want to do this. I mean, it’s up to you. There’s a recent Supreme Court case where — it was on a writ I think. But at any rate, the allegation was — and I guess there were findings or something. But it got sent back because there wasn’t anything in the record that defense counsel had affirmatively explained to the defendant the downside of going to trial and losing. And so, frankly, given that case, I think we need to do that. In the case last week . . . the defense counsel acknowledged that he had told the defendant the same thing. So the defendant knew that if he went to trial, it was going from five to twenty. Now, obviously I’ve said that, but that’s not — I’m not his lawyer. I mean, I’ve said what happened last week.’
 
“In response to the court’s inquiry, the prosecutor then informed the court that the Government had offered Hemphill a plea agreement with an agreed-to sentence of seven years. Defense counsel confirmed that he had discussed the plea offer with Hemphill. Nevertheless, the district court then discussed the sentencing guidelines and Hemphill’s potential criminal history score, which could have led to a fifteen to twenty year sentence, and the court stated, ‘Well, Mr. Hemphill, I’m going to tell you one other true story, and then I’m going to give you 15 minutes to confer with [defense counsel] to decide.’
 
“The court then engaged in an extensive colloquy about two defendants, the Nutall brothers, who had appeared before the court facing robbery charges many years earlier. The court told Hemphill that the Government had offered the Nutall brothers seven years, but rather than accept the deal they had listened to the advice of a relative instead of their lawyers. They proceeded to trial, were found guilty, and were sentenced to 35 years in prison. The court explained that several years later the Nutall brothers wrote letters to the court, that they had been model prisoners, and that the court felt sorry for them and wanted to help get them released. The court was unable to do so, however, because the Government would not agree to release them. The court then stated:
 
“’So the Court doesn’t have any choice. And I don’t know whether ten years from now if [the prosecutor] would do something different or not, although [the prosecutor] and I may not be here ten years from now. But you’ll still be in prison if you lose. You understand that?’
 
“Hemphill asked the court several questions about the court’s impartiality, and the court assured Hemphill that it ‘was not for anybody.’ Hemphill stated, however, that ‘I’m not going to lay down because the federal people have a 90 something conviction rate on something that I feel like it’s not — it’s not righteous. That’s not cool.’ The court stated that it was up to the jury.
 
“The court turned to a discussion of Hemphill’s pro se motions. During this discussion, it was revealed to the court that the CI had worn a recording device. The district court immediately returned to the earlier case of Williams and informed Hemphill that in William’s case there had also been video and audio recordings admitted at Williams’s trial. The court stated that ‘we had a big screen TV here showing Mr. Williams getting into the car, talking about all the drug stuff. . . . And the jury found him guilty.’ Hemphill said he had a different argument to make, but the court noted ‘that’s factual stuff as to whether the jury wants to believe beyond a reasonable doubt the testimony of the . . . undercover agent.’ The court denied Hemphill’s motions and stated ‘what that leaves then are the facts that the government says it can prove. That’s not up to me. It’s up to the jury. And so if you want to do that, we’re going to do it Monday morning. So you’ve got 15 minutes to confer.’ Because Hemphill wanted to proceed to trial, defense counsel said there was no need to confer. The court then proceeded to take up other pretrial matters in anticipation of trial the following Monday.”
 
This colloquy indicates several things. The judge suspected that Hemphill was under the influence of the inmate named Williams who had apparently been convicted by a jury and received a stiffer sentence than one proffered in a proposed plea agreement. The judge did not want to see Hemphill make that same choice. The morality of that judicial intent is open to debate. What is not subject to debate is the fact that the judge violated Rule 11 by inserting himself directly into the plea negotiations with strong suggestions that Hemphill take the plea deal on the table.
 
After additional negotiations on the plea deal between the prosecution and defense and further involvement by the judge in the process, Hemphill agreed to the proposed plea deal of five-year concurrent terms. The court accepted the plea agreement on September 28. The court ordered a presentence investigation report. Less than two months later, Hemphill filed a motion to withdraw his plea on three grounds: he entered into the plea agreement under duress; he had not received information he had requested from his attorney; and the court had improperly participated in the plea discussions.
 
At a subsequent hearing, defense counsel disputed Hemphill’s allegation that he had not provided the defendant with requested information. Informing the court that “communication had broken down with his client,” defense counsel filed a motion to withdraw as counsel. The court granted that motion but denied Hemphill’s motion to withdraw his plea. The court then appointed the defendant new counsel.
 
In reversing Hemphill’s convictions, the Fifth Circuit said this about the sentencing judge’s conduct in the case
 
“Hemphill’s comments on the record indicate that he was reticent to accept a plea. The district court’s repeated and extensive description of adverse consequences to other defendants who rejected pleas, and its discussion of the ‘success story’ defendant who accepted a plea, were akin to the court advocating a preference for the proposed plea offer and the belief that the plea was in Hemphill’s best interest.  The district court’s actions, done with even the best of intentions, simply went too far, and there was error.”
 
Having found error in the sentencing judge’s conduct, the appeals then had to determine whether the error was harmless:
 
“The district court’s commentary occurred before Hemphill agreed to accept the offer and to enter his plea at the plea hearing. For the reasons noted above, the district court’s commentary thereby created pressure in Hemphill’s mind to accept a plea agreement or face a potentially harsher sentence as punishment.  Although the district court did indicate that it would be impartial and that Hemphill could proceed to trial, once a court has exerted pressure on a defendant it is difficult, if not impossible, to undo the coercive effects of that pressure.   “We have held that ‘it is difficult to imagine a situation in which the court would find a judge’s participation in the plea negotiation process to be harmless given the inherent pressure placed on the defendant.’ The Government argues, however, that rather than attribute Hemphill’s acceptance of the plea offer to coercion by the district court, we may logically conclude that Hemphill accepted the plea offer on September 28 because the Government had reduced the agreed-to sentence from seven years to five years. But what ‘we do not and cannot know [is] whether [Hemphill] would have accepted the plea agreement absent participation by the court.’ The record in fact suggests otherwise.”
 
While a sentencing judge may offer “generic commentary” about the pros and cons of plea agreements, the court must bend over backwards to avoid even the appearance that it is encouraging a defendant to enter a guilty plea. Judges, prosecutors, and defense attorneys know what the Human Rights Watch report pointed out: nine out of 10 drug defendants who go to trial are found guilty. This fact prompts some federal prosecutors to threaten additional charges if a drug defendant does not plead guilty. As one former prosecutor told Human Rights Watch, these prosecutors “penalize a defendant for the audacity of going to trial.”
 
This does not appear to be the situation in the Hemphill case. Prosecutors proposed seven-year concurrent terms in their initial plea proffer and reduced it to five-year terms after Hemphill indicated some reticence about pleading guilty. Prosecutors can now give Hemphill the trial he wanted, and if he is convicted, the Court will most likely have no choice but to impose a harsher sentence as the Sentencing Guidelines will most certainly suggest.
 
The lesson here is that judges, for whatever reason, cannot let themselves get personally involved in cases before the court.  Even if they have the best of intentions…