US Supreme Court ponders if judge’s meddling must be material

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When a meddling judge breaks the rules by giving a criminal defendant a little advice, must a subsequent guilty plea be vacated, or does the defendant have to demonstrate that he was prejudiced?

That question has landed before the U.S. Supreme Court, which heard oral arguments in U.S. v. Davila on Monday.

The case involves Anthony Davila, a Georgia man who sought to replace his court-appointed lawyer in connection with a tax fraud charge. When the defendant complained to a magistrate judge that the only advice the attorney gave was to plead guilty, the judge offered his own thoughts.

Sometimes “the best advice a lawyer can give his client” is to plead guilty, the judge said. He advised Davila to “come to the cross” and make a guilty plea so that he could “get that three-level reduction for acceptance.”

“Mr. Davila, someone with your criminal history needs a three-level reduction for acceptance,” the judge said.

Davila pleaded guilty, but changed his mind and sought to have the plea vacated. The district court denied the motion and sentenced him to 115 months in prison.

He appealed, arguing that the judge violated Federal Rule of Criminal Procedure 11(c)(1) with his unsolicited advice.

The 11th U.S. Circuit Court of Appeals agreed and vacated the guilty plea, ruling that Rule 11(c)(1) creates a bright-line rule that does not allow for harmless error, so the defendant need not show that he was prejudiced.

On Monday, Eric Feigin, assistant to the U.S. solicitor general, told the court that the automatic vacatur rule adopted by the 11th Circuit is “flawed.”

“It would be especially inappropriate to apply an automatic reversal rule in a case like this one that comes to the appellate courts in a plain error posture,” which requires a showing of that the error was prejudicial, Feigin said.

Justice Ruth Bader Ginsburg worried that a finding to the contrary would put defendants in an unfair position.

“It’s plain error because the defendant didn’t make an objection in the lower court,” Ginsburg said. “But the defendant doesn’t know about Rule 11 [and] his lawyer doesn’t tell him the judge is doing something wrong because his lawyer wants him to plea. So he lacks the information necessary to make a prompt objection.”

Robert M. Yablon, as associate in the Washington office of Orrick, Herrington & Sutcliffe LLP, argued on the defendant’s behalf that “the magistrate judge abandoned his role as neutral arbiter and fundamentally distorted the pretrial process.”

Chief Justice John G. Roberts Jr. doubted that a one-solution-fits-all approach fits Rule 11.

“What if you have the situation where the judge is conveying purely factual information?” Roberts asked. “‘The last 10 cases that went to trial where the defendant was found guilty, I sentenced them to a minimum of 12 years.’ Pure facts.”

Yablon said the concern didn’t apply in cases like Davila’s when the violation of Rule 11 was clear and conceded by the government.

When there is a violation, the defendant should automatically get relief “particularly when you consider the context of the rule and its underlying purposes,” he said.

A decision is expected later this term.