When 98% of federal criminal cases are resolved by plea agreements, you may expect that courts would fiercely protect defendants’ constitutional rights during the plea bargaining stage. Nothing could be further from reality. In fact, the Supreme Court does not require the Department of Justice to disclose exculpatory evidence under Brady v. Maryland[1] before a defendant pleads guilty and Department of Justice’s policies do not require prosecutors to do so voluntarily. Particularly in white-collar criminal cases, this state of play means that defendants routinely enter into plea agreements that are not truly “knowing” or “voluntary.”
Brady Rights Generally
The Sixth Amendment guarantees a defendant’s right to a fair trial, The Supreme Court held that government disclosure of material exculpatory and impeachment evidence is part of this guarantee in Brady and Giglio v. United States.[2] Yet the Supreme Court also held in United States v. Ruiz that a defendant does not have a right to exculpatory impeachment evidence during plea negotiations.[3] Some circuits extend Ruiz to all exculpatory material.
When a defendant does not plead guilty and instead proceeds to trial, the government must disclose evidence in its possession that may result in an acquittal. In a white-collar criminal case, exculpatory or impeachment evidence includes interview memoranda in which a witness offered information that calls a defendant’s guilt into question and emails or other documents that do the same.
Plea Negotiation Process
A plea agreement is, at heart, a contract. It’s an agreement between the government and the defendant to govern the resolution of the defendant’s case. A federal court must approve the plea agreement.
Effective plea bargaining is vital to representing individuals in white-collar criminal cases. As much as we wish every defendant would take their case to trial and challenge the government’s narrative, some cases are unwinnable. Spending money on a trial does not make sense. A favorable plea agreement can be the best outcome, particularly when courts nearly always impose a higher sentence after a trial than following a plea to the same charges. (This “trial penalty” is very real, but beyond the scope of this post.)
A plea agreement generally includes a promise by the defendant to plead guilty to certain charges and by the government to limit the charges. It often includes the government’s agreement as to a sentencing recommendation or to the sentencing guidelines numbers.
Agreeing to specific charges can shape a defendant’s ultimate sentencing exposure. For example, the statutory cap on a sentence for conspiracy to commit wire fraud is five years in prison; the statutory cap on a sentence for substantive wire fraud is twenty years in prison. A plea agreement will also include the defendant’s waiver of crucial constitutional and other due process rights: the right to a jury trial, the right to appeal, and the right to pretrial discovery.
Plea negotiations often focus on what the government will or will be unable to prove at trial. Successful negotiations—from the defense side—include explaining to the government why the evidence will not persuade the jury to convict the defendant. The ability to review and evaluate exculpatory evidence and use it to convince the government to agree to a more favorable plea agreement is key to a successful outcome. The client may have some of this exculpatory evidence already, but the government always has far more.
During a plea colloquy in court, the judge will review the terms of the proposed plea agreement and ensure the validity of the plea. As Brady held, “[w]aivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.”
Every day, federal courts approve plea agreement when the defendant does not know the full scope of exculpatory evidence that he could use to challenge the charges at trial. It is hard to understand how a defendant can enter into a “knowing” waiver of constitutional rights or have “sufficient awareness of the relevant circumstances” when the government need not disclose the evidence that the defendant could use to win an acquittal.
The ABA’s Plea Bargain Task Force
Last August, the American Bar Association’s Plea Bargain Task Force issued a report about the plea negotiation process.[4] Working from the premise that “trials are essential to a healthy criminal justice system and central to our system of justice,” the Task Force recommended 14 principles to improve the process. Principle No. 9 reads:
Defendants should receive all available discovery, including exculpatory materials, prior to entry of a guilty plea, and should have sufficient time to review such discovery before being required to accept or reject a plea offer.
The report acknowledges the reality that defendants “often make life-altering decisions without any sense of the evidence against them. In addition, there are examples of prosecutors withholding evidence of actual innocence from defendants who pleaded guilty.” This decision-making process casts doubt on the fiction that defendants knowingly waive their constitutional rights.
Imagine a situation where the defendant is the CEO of a small government prime contractor. The government plans to indict him for knowingly submitting false invoices to the government that include inflated charges for certain labor performed by a subcontractor. When DOJ interviewed the prime contractor’s project manager, however, she explained that the labor costs were buried in a confusing bill submitted by the subcontractor, that the program manager had approved the bills without checking them against the subcontract’s fee schedule, and that the CEO had no idea that the charge were too high when he submitted the invoice. Through a subpoena to the subcontractor, DOJ unearthed emails where the subcontractor worked to keep the inflation of labor costs a secret from the CEO. This evidence would be highly relevant to whether the CEO would plead guilty, but he would have no idea it exists unless the government disclosed it to him.
A Practical Solution
Overturning precedent like Ruiz is an uphill battle. And we cannot expect DOJ to acquiesce in improving the fairness of the process. Indeed, the Justice Manual does not require disclosure of exculpatory material during plea negotiations. Instead, the official policy provides that “disclosure of exculpatory and impeachment evidence material to guilt or innocence be made in sufficient time to permit the defendant to make effective use of that information at trial,” and that this means “in advance of trial.”[5] Requiring earlier disclosure–before there is even a trial date–makes it less likely defendants will plead guilty and more likely defendants will demand a trial. DOJ disfavors both outcomes.
But all hope is not lost. There are two practical solutions to the problem.
First, Supreme Court precedent sets a floor, not a ceiling, for disclosures. Federal district courts could adopt local rules, or even a practice, to require the prosecutors in its court to (a) disclose Brady material during plea negotiations, and (b) certify such a disclosure as a condition to approve plea agreements.
Second, on an even more granular level, individual judges could include a requirement to produce exculpatory materials during plea negotiations. For example, Senior Judge Emmet Sullivan of the District Court for the District of Columbia has a standing Brady order that “[t]his government responsibility [under Brady] includes producing, during plea negotiations, any exculpatory evidence in the government’s possession.”
One final practical note from the trenches: The ABA report recommends that the government disclose all discovery material, not just Brady material, at the time of plea negotiations. This recommendation is laudable but can create problems for complex white-collar cases. With the exponential rise of electronic evidence—and the liberal use of grand jury subpoenas—the government can easily collect terabytes of evidence. Dumping this evidence on a defendant creates serious logistical and cost issues. Few of our individual clients have an unlimited budget. Processing and searching all the discovery may be impossible. But this problem can be mitigated if the government specifically identifies the potentially exculpatory material within the discovery produced. That way, clients who have a more limited budget, or are eager to end the matter quickly, can still engage in meaningful and knowing plea negotiations.
Pleading guilty to a felony has immediate consequences for a defendant, including substantial prison time. It also has collateral consequences for the person’s family, business, and future. There is no reason to deny a person the ability to fairly evaluate the strength of the charges against him before this “life altering” decision. If the Supreme Court will not fix the problem, then judges should.
Pleading guilty to a felony has immediate consequences for a defendant, including substantial prison time. It also has collateral consequences for the person’s family, business, and future. There is no reason to deny a person the ability to fairly evaluate the strength of the charges against him before this “life altering” decision. If the Supreme Court will not fix the problem, then judges should.
[1] 373 U.S. 83, 87 (1963)
[3] 536 U.S. 622, 629 (2002)
[4] https://www.americanbar.org/groups/criminal_justice/committees/taskforces/plea_bargain_tf/
[5] Justice Manual § 9-5.001(D).