Commentary: Dealing with presumptuous judges

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Several years back, I told a friend of mine who sits on an appellate court that she was a much better appellate judge than she ever was a trial judge.

When she asked why I said that, I told her it was because she didn’t know her proper role back when she was on the trial court. She thought she knew more about the cases, after presiding over a few brief hearings, than did the attorneys who had spent dozens of hours on the cases and been immersed in them for months.

“I was independent,” she declared. “You were presumptuous,” I replied.

And now, our state supreme court has given circuit court judges a blank check to be as presumptuous as they want to be.

In State v. Conger, the court not only held that circuit courts have authority to reject a plea agreement, they rejected the argument of both the State and the defendant that the circuit court must at least give a high degree of deference to the prosecutor’s decision to enter the agreement.

Instead, all discretion was given to the circuit courts themselves. A circuit court need only find that the plea agreement is not in the “public interest” to reject it.

How limitless a grant of power is that? Well, just consider: Some people in this country think it’s in the public interest to outlaw abortion; others think it’s in the public interest to compel the taxpayers to pay for abortions.

In effect, as long as a circuit court can come up with some plausible reason why rejecting a plea agreement is in the “public interest,” that decision cannot be reversed on appeal.

The court’s grant of authority is so broad that a judge could reject a plea agreement in any case. In its discussion, the court actually goes so far as to adopt the factors set forth by those knuckleheads at the American Bar Association as to when courts should accept plea agreements to lowered charges.

ABA Standard 14-1.8 says that courts should accept such plea agreements when: (i) the defendant is genuinely contrite; (ii) the concessions will enable better sentencing alternatives; (iii) avoiding trial will spare the victim unseemly public scrutiny; or (iv) the defendant has cooperated in prosecuting others.

The corollary to the standard is that, if none of those factors are present, the court should reject it. Any judge, in almost any case, could find that these considerations are not present, and therefore reject a plea agreement that involves reduced charges.

Noticeably absent from the ABA standards are many factors that drive plea agreements every day. Here’s one: The defendant may be guilty as sin and wholly lacking in remorse, but the state’s case is weak.

But apparently, no one at the ABA has ever actually represented a real client, so they don’t realize that a plea to a reduced charge in such a case can be a better alternative than the all-or-nothing result that going to trial entails.

Of course, Wisconsin has a very high quality judiciary, and I certainly don’t expect that our judges will use this decision as a license to arbitrarily reject plea agreements. But why create an opportunity for it at all?

Who knows? Perhaps there will even be a benefit from this. Maybe prosecutors will refrain from overcharging for fear they might actually have to try defendants on a kitchen sink of charges that overstate defendants’ actual criminal culpability.

Or perhaps defendants will hire attorneys before arraignment and we can prevent prosecutors from overcharging them in the first instance (stop laughing; it could happen).

But that’s unlikely. What attorneys need is a plan for dealing with a judge who won’t let a heavy-duty felony be lowered to a misdemeanor.

Try this. Drag the case out as long as you can. Eventually, your client will do something, however minor, that constitutes a violation of some law or a condition of his bail. No matter how petty, it’s a felony bail jumping, because the underlying charge is a felony.

Then, you can plead to felony bail jumping, the prosecutor can dismiss the more serious felony that no one wants to go to trial on anyway, and the presumptuous judge who doesn’t know anything about the case in the first place can’t say, “This is too serious to be reduced to a misdemeanor.”

Just don’t reach any actual agreement with your client and the prosecutor to do this. I’m no ethics expert, but I think that might violate the Rules of Professional Responsibility.