Mar 25, 2009 Being human, prosecutors can act like Lucy van Pelt
As liars go, Lucy van Pelt was a pro. How else did she repeatedly convince Charlie Brown to try to kick a football that she always pulled away a split second before his foot touched the ball?
Being human, prosecutors, judges, criminal defense lawyers, and everyone else have the capacity to go back on their word, whether or not they do so intentionally, and whether or not they never intended to fulfill their part of the bargain in the first place. I, myself, recently had a client politely remind me that the fee I quoted him to take his case to the next highest court was higher than the fee I quoted in his contract; this was an innocent mistake, with my having forgotten that I had even quoted a fee before that date. I can relate to such honest mistakes, but honest mistakes are not always behind deviations from agreements.
The longer a criminal case lasts in trial court, the greater the chance is that prosecutors will be switched along the way. Anytime a prosecutor does something contrary to a previous agreement, it may just be because the prosecutor is not up to speed on the case, or it may be something more sinister.
Enter James Benjamin Puckett. He was indicted for armed bank robbery, and ultimately reached a deal with the prosecution to plead guilty and to spill the beans to the government on his participation in criminal activities. In exchange, the government agreed to recommend a three-level reduction in his offense level and to request a sentence at the lowest end of the resulting now-advisory federal sentencing guidelines range. During a three-year sentencing delay related to health problems, Puckett got nabbed for another felony, and confessed his guilt to his probation officer.
At sentencing, on the basis of Puckett’s post-plea criminal activity, the prosecutor objected to the three-level reduction in his offense level. The judge agreed with the prosecution, and sentenced Puckett at the bottom of the higher sentencing guidelines range that resulted from the elimination of the three-level reduction in the offense level. As a result, Puckett was sentenced to 262 months (nearly 22 years) in prison, instead of the 188 months (nearly 16 years) that he would have received had the prosecutor stuck to the original deal, and had the judge accepted the recommendation. Puckett’s trial lawyer did not object to this six-year sentencing difference between the plea agreement and what resulted at sentencing.
Today, in a 7-2 decision, the Supreme Court upheld Puckett’s conviction and sentence. Here is the essence of the majority’s opinion: "Such a breach [by the prosecution] is undoubtedly a violation of the defendant’s rights, see Santobello v. New York, 404 U. S. 257, 262 (1971), but the defendant has the opportunity to seek vindication of those rights in district court; if he fails to do so, Rule 52(b) [of the Rules of Criminal Procedure] as clearly sets forth the consequences for that forfeiture as it does for all others." Puckett v. U.S., ___ U.S. ___ (March 24, 2009).
All nine Supreme Court justices agreed that plain error review applied to Puckett’s appeal. With plain error review: "First, there must be an error or defect–some sort of ‘[d]eviation from a legal rule’–that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. [U.S. v. Olano, 507 U.S. 725 at 732-33 (1993)]. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. See id., at 734. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it ‘affected the outcome of the district court proceedings.’ Ibid. Fourth and finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error–discretion which ought to be exercised only if the error ‘"‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’"’ Id., at 736 (quoting United States v. Atkinson, 297 U. S. 157, 160 (1936)). Meeting all four prongs is difficult, ‘as it should be.’ United States v. Dominguez Benitez, 542 U. S. 74, 83, n. 9 (2004)." Puckett v. U.S., ___ U.S. ___ (March 24, 2009).
Both the Puckett majority and dissent agreed that the first and second of the four-prong plain error review test were met. The majority found that the third prong was not met. Dissenting Justice Souter, joined by Justice Stevens, made a strong point that the third prong was met in Puckett’s conviction itself that arose from Puckett’s pleading guilty in reliance on the plea agreement.
How dare the prosecution benefit from such a windfall after re-enacting Lucy van Pelt’s withdrawing the ball from Charlie Brown, with the only difference being that the prosecution probably had no sinister intent at the time of entering the plea agreement? Now, the prosecution can sit contentedly, letting Mr. Puckett twist in the wind as he waits to file and resolve a habeas corpus petition alleging ineffective assistance of counsel for his trial lawyer’s failure to object timely in the trial court to what the Supreme Court acknowledged was the prosecution’s clear breach of the sentencing agreement. The law does not automatically guarantee court-appointed counsel for federal habeas corpus petitions, but at least one can hope that Mr. Puckett will have a high chance of obtaining habeas relief. However, seeing that the sentencing guidelines are advisory only, will the sentencing judge reduce the sentence even if Puckett obtains habeas relief in the form of a resentencing with the prosecution sticking to the original plea agreement?
Puckett makes clear the Supreme Court majority’s aversion to permitting plain error relief in all but the most unusual circumstances. Until that changes, I hope that all criminal defense lawyers will leave a hockey puck on their trial tables to remind themselves of the name Puckett and the very unforgiving Supreme Court plain error caselaw. Jon Katz