Nov. 18, 2009 – The Wisconsin Supreme Court is to consider how much deference the trial court owes the district attorney when reviewing a proffered plea deal in a case set for oral arguments next month.

In State v. Conger, 2008AP755, the Wisconsin Attorney General and the defendant argue that the trial court ought to give “substantial deference” to the prosecutor, only refusing to approve plea bargains lacking a legitimate basis. But the trial judge responds that the judiciary has authority to review the plea bargains independently of executive branch determinations of the “public interest.”

Nearly 70 years ago, the Wisconsin Supreme Court found that the trial court has supervisory authority regarding plea bargains in Guinther v. City of Milwaukee, 217 Wis. 334 (1935). In this case, it could explain how that power relates to the prosecutor’s wide discretion in handling a criminal case.

Felony reduced to a misdemeanor

Police arrested Joshua Conger following a search of his home, recovering individually wrapped baggies of marijuana totaling 794 grams, a digital scale, sandwich baggies, and a large amount of marijuana stems and seeds.

A two-count information charged Conger with one felony count of possession of marijuana with intent to deliver and one misdemeanor count of possession of drug paraphernalia. In a plea agreement, the felony count would be dropped in exchange for Conger’s guilty plea to three misdemeanor counts of marijuana possession. The drug paraphernalia charge would be dismissed, but available as a read-in. The state recommended two years’ probation, sentence withheld, conditioned in part on a 90-day jail term.

The prosecutor told Fond du Lac Circuit Judge Peter Grimm that Conger had no significant criminal history, that he had been doing well while on bail, he had participated in drug and alcohol counseling, and that he was cooperating with police in their other investigations. Further, the prosecutor said that the deal would hopefully give the 23-year-old a chance to “clean up his act and move on” without the handicap of a felony record.

But Grimm rejected the deal, finding that the reduced charges depreciated the seriousness of possessing that much marijuana for sale – an activity in which Conger allegedly engaged earlier. At 23, Grimm remarked that Conger should know better. The prosecutorial rationales for the plea agreement “are matters for sentencing and for leniency,” Grimm stated.

Grimm also noted that the police generally disfavored plea deals reducing felony charges to misdemeanors and that they “decrease the morale of law enforcement.”

Prosecutor’s discretion

In its brief, the attorney general asks the justices to find that “unless the prosecutor has wholly failed to consider the interests of victims, if any, or has shown some improper discriminatory motive,” a trial court cannot substitute its view of the “public interest” for the prosecutor’s well-reasoned determination.

The attorney general explained that the district attorney’s duty is to administer justice, not merely obtain convictions. Accordingly, the district attorney is given great discretion as to which charges to pursue. That discretion extends to the use of plea bargaining, the attorney general said.

A prosecutor’s decision to offer a plea bargain weighs not just the factors particular to a case but also that case’s relationship to the government’s other enforcement priorities. As such, the reasoning behind a plea bargain is ill-suited for judicial review, the attorney general said. The court’s review of a plea bargain should be like the highly deferential judicial review of an administrative agency’s decision in an area of its special expertise, the attorney general said.

Judge’s discretion

But in his brief, Grimm argued that “[o]nce the defendant has been charged, prosecutorial discretion is no longer unbounded. It is limited by the court’s supervisory responsibility.” The discretion to amend or dismiss a charge is a shared power under the separation of powers doctrine, Grimm argued, citing State v. Dums, 149 Wis. 2d 314 (Ct. App. 1989).

Following State v. Kenyon, 85 Wis. 2d 36 (1978), Grimm argued that he had the discretion to accept or reject a plea agreement according to his view of the public interest. “[T]he public interest is hardly limited to the victim’s interests or to the prosecutor’s motives,” Grimm asserted. “The ‘public interest’ standard … is a ‘reasonable’ one that allows the court to ‘examine all relevant factors’ and exercise its discretion, ‘depending on the nature of the case,’” Grimm argued, quoting Dums.

Consequently, Grimm argued that the case is only about whether the trial court properly used its discretion.

The attorney general challenged Grimm’s reading of the case law. “As support for these arguments, Judge Grimm relies in part on Wisconsin Supreme Court cases that involved prosecutorial motions to dismiss outright pending prosecutions, not cases involving proffered plea agreements,” the attorney general wrote. Wisconsin case law “weights the balance heavily” toward prosecutorial discretion in cases of proposed plea agreements, the attorney general said, citing State v. Roubik, 137 Wis. 2d 301 (Ct. App. 1987), State v. McQuay, 148 Wis. 2d 823 (Ct. App. 1989), and State ex rel. White v. Gray, 57 Wis. 2d 17 (1973).

Conger similarly attacked Grimm’s reliance on Kenyon, concerning the dismissal of charges, in a case regarding the amendment of a felony to a lesser charge. Courts use a different standard for amendments which “may simply reflect that where a prosecution is not terminated, more flexibility is needed and granted to the district attorney,” Conger wrote. In addition the standard enunciated for amendment of a criminal charge under Wis. Stat. § 971.29 has its focus only on the prejudice such amendment may work on the defendant, Conger said.

But Grimm brushed off the distinction. “That argument ignores both the case law and the practical reality of many plea agreements, especially where, as here, the charged offense would be literally dismissed and the defendant would plead guilty to a lesser offense,” Grimm argued.

Grimm also rejected Conger’s understanding of § 971.29, arguing that it actually codifies the judiciary’s inherent independence because it permits the court to direct the entry of amendments. Reinforcing the point, Grimm contrasted the apparent breadth of judicial discretion in § 971.29 with the expressly limited discretion of § 967.055(2), which permits a court to approve an amendment or dismissal of a drunk driving charge only if the proposal is consistent with the public interest in deterring intoxicated operators.

“The statutes, therefore, circumscribe the charging and plea approval process for only this one category of offenses and, by implication, not for any others,” Grimm remarked. “Certainly, if the legislature wanted to limit judicial authority in plea bargains generally, it knew how to do so.”

Public policy

“Trial courts are not nor should they ever be, ‘rubber stamps’ for the decisions of prosecutors – with or without the defendant’s concurrence,” Grimm said. “[I]ndependent judicial consideration of ‘the public interest’ discourages – and protects the public from – potential misuses of power by district attorneys because they are overworked, inexperienced or, rarely but far worse, even corrupt.”

Grimm referred to a judge’s publicized refusal to accept a civil settlement between the Securities and Exchange Commission and the Bank of America in SEC v. Bank of America, No. 09 Civ. 6829 (S.D.N.Y Sept. 14, 2009). The judge concluded that the settlement victimized company shareholders who had already been lied to by the firm’s management.

But the attorney general warned against turning trial courts into “super prosecutors” permitted “arbitrary speculation in any particular case” without appreciation for the larger effort to uphold the law. Prosecutors do not have unlimited resources and the court system could never handle every defendant insisting on a trial. Accordingly, prosecutors punish more criminals overall by extending leniency in some cases for a guilty plea, freeing them to prosecute other cases.

“[W]hat may appear at first blush to a trial court as ‘too lenient’ a plea agreement may actually have a ‘punishment-maximizing effect’ in a truer, broader sense of the ‘public interest,’” the attorney general wrote.

Police opinion

The attorney general argued that Grimm should not have sought the police opinion of the proffered plea agreement in light of State v. Matson, 2003 WI App 253.

In Matson, the attorney general explained, “the court of appeals held that the State breached a plea agreement when an investigating police detective asked the court in a letter to impose the maximum sentence, contrary to the prosecutor’s promised recommendation.” The court of appeals concluded that the detective’s acts are those of the prosecutor on the theory that the police are the investigating agent of the prosecutor

“Unless a law enforcement officer or agency is the actual crime victim, the trial court should not solicit or consider the officer or agency’s opinion in deciding whether to accept a plea agreement,” the attorney general wrote. “Rather, the prosecutor speaks for the State in how best to resolve a pending prosecution in ‘the public interest,’ and the opinion of law enforcement are matters for internal discussion between prosecutor and law enforcement.”

But Grimm distinguished Matson, noting that the plea agreement of that case included a joint sentencing recommendation by the State and the defendant so the court’s focus was on whether the investigator’s letter breached that deal. “The case did not question the trial court’s consideration of the plea agreement in the first instance,” Grimm argued. “In fact, had the plea agreement in Matson not included a joint sentencing recommendation, the investigator’s letter regarding sentencing may well have been proper.”

Further, Grimm denied that he gave greater weight to the police opinion than the other considerations listed in his ruling.

No longer a neutral tribunal?

Prosecutorial discretion is a function of the executive branch, Conger said. When judges “second guess and overrule” district attorneys’ prosecutorial discretion, it is no longer the constitutionally required neutral and detached magistrate, he said. Accordingly, Conger argued that he has been denied his right to an impartial judge.

Grimm responded that the executive and judicial branches share “charging discretion” by which the prosecutor negotiates a plea agreement and the court supervises.

But Conger doubted that the two roles Grimm identified would remain separate in practice. “Prosecutors subject to such supervision will be eventually tempted to subjugate their exercise of discretion to the goals of the trial court, through trial and error, lest any plea agreement be rejected,” Conger wrote.

“Such broad review further suggests that a trial court will gain an implied authority to negotiate the outlines of any settlement through its rejection of any portion of a plea agreement the court does not like, forcing compromise in one way or another,” Conger said.

The Wisconsin Supreme Court will hear oral arguments in this case on Dec. 1.