I get this a lot: “Can a judge do that?”
If I answer “Yes,” I’m usually right.
But let’s take a quiz: It’s Oct. 4, 2012, your name is Fred Miles Thompson and you sport a lively criminal history. You have a decision to make after breakfast.
Take your gun and drug charges to trial, where conviction carries a mandatory life sentence. Or accept the plea deal, which guarantees a minimum 12-year sentence. The judge still could dish out a life sentence, but at least it’s not mandatory life.
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Then you hear Ralph Erickson, a North Dakota federal judge say: “Mr. Thompson, this is a high-risk strategy.… (O)n one hand you’ve got 12 years. You’re a young enough man that it seems probable that you will be able to serve that sentence and walk out of prison someday, all right? If you try this case and you win you’ll be free sometime next week. If you try this case and you lose you will never be free.”
Imagine how someone facing life in prison might understand that: Take the deal, get 12 years.
Thompson took the deal and got — life.
Thompson argued on appeal that his judge had participated in plea negotiations and coerced him to plead guilty, both definitely against the rules.
So, can a judge really show that much sentencing leg at a plea hearing? The answer came only after much judicial reflection.
An 8th U.S. Circuit Court of Appeals panel ruminated over the case for almost a year before issuing its opinion last month.
“Whether the district court’s comments constituted improper participation in plea negotiations is a close question,” the appeals court wrote. (Translation: “You danced on the line, judge. Never say that again.”)
But the appeals judges stood by their district court brother. They blamed Thompson for his predicament and carefully dissected the record to show how many times he’d been told that he still could get a life sentence. The appeals judges said Thompson could have swayed them had he said something — anything — on the issue at sentencing.
“If Thompson had taken any action to show that … there is a reasonable probability he would not have entered a guilty plea, we might come to a different result than we do,” the panel wrote. “However, even during the sentencing hearing, Thompson failed to give any indication that the district court had led him to expect a particular sentence in exchange for pleading guilty.”
So, did you choose “Yes?”