Mimesis Law
6 April 2020

Fault Lines Debate: Judges Rejecting Pleas Is Proper & Legal, Whether We Like It Or Not

July 26, 2010 (Fault Lines) – Ed. Note: In light of Texas District Judge Kerry Neves order that he would no longer entertain plea bargains that involved deferred adjudication or probation in prosecutions involving law enforcement, unless the “victim” agreed, we charged Fault Lines contributors Chris Seaton and Josh Kendrick to debate the issue: Is it proper for a judge to categorically refuse to impose a lawful, agreed-upon sentence?  This is Chris’ argument:

Working in the criminal justice system carries a certain level of moral ambiguity that confounds spectators outside the profession.  When people not used to the trench lawyer’s daily grind hear of stories like Galveston County Texas Judge Kerry Neves’ staunch refusal to accept pleas where cops are “victims” unless the cop agrees, and the Defendant wraps the deal shut with a nice letter of apology, their first tendency is to scream, “That’s not fair!”  While Judge Neve’s comments might be out of line and his specific acts improper, there’s nothing wrong with a judge categorically refusing to accept a lawful, agreed upon sentence.  In fact, it’s a perfectly legal step in the contractual process that is a plea bargain.

A plea bargain is a contractual arrangement according to Texas case law.  There’s three parts to this special form of contract: the guilty plea, consideration, and the approval of the court.  The “consideration” is the defendant’s bargained-for sentence, approved by the State.  The entire thing isn’t binding until the judge signs off on the plea, however, and judges enjoy “broad discretion” when it comes to accepting or rejecting an agreed-upon sentence.  That discretion is broad enough to where a judge can accept a guilty plea on Friday, take the weekend to ponder the plea, then turn around on Monday and announce a rejection of the plea agreement.

How can a trial judge in Texas pull off such a feat?  The Texas Code of Criminal procedure spells out as part and parcel of accepting a plea agreement that the judge is required to ask if a plea agreement exists, and if one is in play, that agreement isn’t binding on the court.  Even if the judge doesn’t expressly spell that out when accepting a defendant’s plea of guilty, the Texas Court of Criminal Appeals held as long as the judge accepts the guilty plea and doesn’t immediately make a finding on the agreed-upon sentence, he or she can pull a judicial about-face without uttering the appropriate terminology when accepting a defendant’s plea.

Now that we’ve addressed the question of legality, the next step is determining the propriety of categorically refusing to accept a lawful, agreed upon sentence.  In addressing this issue, it’s important to keep the definitions of the words “proper” and “categorical” in mind.  For the sake of convenience, I’m using the linked versions from “The Free Dictionary.”  Taking into account the case law and definitions, and applying it to Judge Neves’ new “local rule” announced via Facebook, it’s certainly proper for a judge to categorically refuse to accept a plea agreement in cases where a defendant is accused of assaulting a cop unless that cop agrees to the plea.

If Judge Neves chooses to hinge his acceptance of a plea by a defendant, who tosses a bottle of water at a cop’s head and yells an anti-cop statement in the process, on an “okay” from an alleged “victim” and a letter of apology, the law treats that as a condition subsequent to the contract that is a plea deal.  It terminates the duty of the state and the defendant to abide by that particular contract and puts them in a position where they’re ready for trial.  As long as the judge doesn’t force the defendant to enter a guilty plea, and instead sets the matter for trial, with the defendant formally entering a “not guilty” plea, Judge Neves is well within the framework of the law to set every matter involving an assault on cops for trial.

Applying that to the Texas Code of Judicial Conduct, Judge Neves is actually adhering to the canon requiring the “Independence and Integrity of the Judiciary” and performing his duties in absolute compliance with the law.  The fact this is an election year and he’s potentially pandering to a very dedicated voter base doesn’t change the fact that a jurist’s right to reject a plea deal is accepted in other states and affirmed by the United States Supreme Court.  Judge Neves’ particular set of circumstances would call into question his ability to fairly adjudicate any case involving an assault on a law enforcement official, but that doesn’t change the legality or propriety of his decision.  It just gives a defense attorney wonderful grounds for a Motion for Recusal.

Situations such as those found in Judge Neves’ courtroom aren’t the most optimal conditions for a defense attorney, defendant, or a prosecutor who wants to clear one more case off his workload. It’s certainly not a good idea for a judge to openly advocate a political opinion in a time of national tension between law enforcement and civilians.  As unpopular or “improper” one may think actions like those Judge Neves’ took upon himself, or any other jurist choosing to side with those wearing a badge in an election year, it’s all perfectly within the bounds of the law. It may not be “fair,” but it’s the system with which we’re constrained to work.

REBUTTAL: On review of Josh’s remarks, I only offer the following response. Yes, a judge should strive for complete impartiality. In a perfect world, if a jurist saw two sides reach a deal that sought justice for an aggrieved party and achieved a function accomplished by sentencing, then to reach that degree of perfection where a judge only rules on whether a sentence is “legal” would be the highest function of our criminal justice system.

Unfortunately, we’re working with the best we have, which involves judges with biases and motives we might not be able to ascertain before taking a plea to a judge.  Making this argument doesn’t mean I’m on the side of “right” or “fairness.” I’m only able to say with certainty that it’s “legal.”

8 Comments on this post.

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  • Jeff Gamso
    26 July 2016 at 12:53 pm - Reply

    Texas, as the tourist board says (or at least used to say) is “a whole other country.” But at least up here in Ohio a court’s refusal to exercise discretion on a case-by-case basis is an abuse of discretion. And even “broad discretion” isn’t so broad as to allow abuse. (At least in theory.)

    So the problem isn’t that the judge kowtows to the cops. Hell, judges do that all the time (though they’re rarely so open about it). The problem is that the rule is categorical.

    • CLS
      26 July 2016 at 1:06 pm - Reply

      I would normally leave a smart ass retort here, but I have more respect for you than that, Jeff, so I’ll defer to your experience and ask you a question.

      If you know a judge is going to refuse a plea deal on a given case 90-100% of the time (maybe not through a Facebook post but just the usual “keeping book” attorneys do), do you move for a recusal the moment they step into sessions? Would it be too out of line to file a motion asking that judge to automatically recuse himself or herself on any cases you try involving that charge?

      • Jeff Gamso
        26 July 2016 at 1:18 pm - Reply

        It’s pretty rare in my experience for judges to refuse plea deals. (What? I don’t have to work any more on this case? Sounds good to me!)

        My understanding of Ohio’s recusal practice (if we’re talking felonies, recusal applications go directly to the Chief Justice of the Supreme Court who decides them unilaterally) is that I’d lose that motion. If it was 90%, I’d get nowhere because that other 10% demonstrated the judge’s actual use of discretion. If I could prove 100%, I’d maybe get the Chief to deny the motion while explaining that the judge would surely exercise her discretion properly in my case.

        And none of that would do to prove that the judge was so biased as to require recusal.

        In Ohio, we have the Mark Gardner Rule which I’ve written about a few times on my blog. http://gamso-forthedefense.blogspot.com/2009/09/in-which-imaginary-lawyer-believes-in.html. Essentially, it says that judges are always fair and honest and for a lawyer to say otherwise is sanctionable because it’s objectively false (because most lawyers won’t believe it, and the beliefs of most lawyers are the measure of truth). First Amendment be damned.

  • Mark Bennett
    26 July 2016 at 1:10 pm - Reply

    It what elected judges do.

  • Mark Bennett
    26 July 2016 at 1:10 pm - Reply

    “It’s “

  • Eva
    26 July 2016 at 1:23 pm - Reply

    As a non lawyer this argument from my perception is based on life in general is not generally “fair”.

    These rules you speak of only lead me to assume that any presumption of justice lays with human beings (or the persons who are given the power to base these decisions) who I feel by nature are imperfect beings.

    The idea of proper wouldn’t be something I would consider. You have rules of this legal system to abide by and what they allow (or not allow) is basically all that counts.

  • Greg Prickett
    27 July 2016 at 12:39 pm - Reply

    We’ll find out soon. The first motion to recuse has just been filed by a Texas Criminal Defense Lawyer Ass’n member, and it’s not even on one of the listed offenses. It’s on a controlled substance charge, and the motion is based on the bias of the judge for police officers, in a case where it is the officer’s word against the defendant’s.

  • TMM
    27 July 2016 at 1:41 pm - Reply

    The exact “rule” implemented by the judge is questionable (because it gives a non-party a veto over acceptance of the plea). It’s different from a judge creating a rule against a binding agreement on sentence (which a lot of courts do on the theory that sentencing is a judicial decision, not a decision to be made by the parties). It’s also different from a judge rejecting a plea because in that particular case it seems wrong (e.g., a defendant entering an open plea to capital murder or a murder charge being reduced to trespass and probation).

    I see acceptance of pleas (assuming the legal requirements of a knowing and voluntary plea are met) as somewhat comparable to approving the settlement of minors in civil cases. In most cases, it is fair to assume that the two parties who know the facts best have negotiated in good faith to reach a reasonable settlement. It is only when the deal suggests a breakdown in the process or something that is a serious departure from normal practice that a judge should reject the deal. (Especially as on the criminal side, the judge has little control over a prosecutor who wants to make the deal and can “back door” the plea by simply amending charges and trying the case on stipulated facts.)