The disciplined judicial mind should not be subjected to any unnecessary strain;…the most austere intellect has a subconscious.
How great is this language?
Although the language dates back to 1972, it did not come to my attention until it was quoted in a opinion issued this month by the D.C. Court of Appeals, Plummer v. United States, ___A.3d ___, ___ (D.C. 2012). And, although the language is not central to the holding of the case, it could not help but resonate with me. It is one of those passages I try to stow away in my mind for later use.
The Plummer case itself is a throw-away. How many times have you seen this? The defendant starts to enter into a plea and then for whatever reason – maybe he has second thoughts, maybe he quibbles with the prosecutor’s recitation of the facts – the court rejects the guilty plea and the parties proceed to trial.
In this case, the trial went forward in front of the same judge who had refused to accept the plea. And when the defendant was ultimately found guilty, he appealed the verdict on the grounds that the judge, having learned of the defendant’s initial wish to plead guilty, should have recused himself.
On the face of it, the defendant’s argument sounds pretty persuasive. And here is where the language on the “disciplined judicial mind” comes into play.
The law makes all sorts of assumptions about the fact-finder’s ability to compartmentalize what s/he has learned at trial in arriving at a verdict. Every time you hear a judge – in real-life or on TV – instruct members of the jury that they are to “disregard” a particular piece of evidence that has just been introduced, you have to wonder how effective this instruction is going to be. Such “mental gymnastics,” in the words of Judge Learned Hand, seem a tad much for the average mind.
We have higher expectations of judges, and with good reason. But even here – and this is where the Plummer language comes in – there have to be limitations. Although judges may be a little bit more superhuman than the average juror when it comes to separating things separate in their mind, you cannot push your luck too far. Because, after all, even the “most austere intellect has a subconscious.”
All of that said, this quotation is the only noteworthy thing about the case, and it wasn’t even central to the holding. Although the appellant’s argument may have some appeal at first glance, it didn’t hold up well under closer scrutiny. Yes, the judge was aware of the defendant’s desire – at least initially – to plead guilty. But judges know that there are all sorts of reasons why a defendant decides to plead guilty, many of them having nothing to do with actual guilt. It was the defendant’s refutation of the facts as recited by the prosecutor that led to the aborted plea. In other words, the defendant never actually admitted any guilt in the presence of the court.
It was the judge himself, not the defendant or his lawyer, who first raised the possibility of recusal. The court also gave the defendant and his lawyer plenty of time to consider the implications of proceeding to trial in front of the same judge, and defense counsel reported to the court that his client would have no objection to the judge keeping the case.
Finally, the judge led the defendant through an exhaustive colloquy to assure that his decision to proceed to trial in front of the same judge was knowing, intelligent and voluntary.
In a precautionary note for the future, the Court of Appeals did suggest that the court should have given the defendant an opportunity to talk with his lawyer outside the presence of the judge before making the decision to proceed. Short of that, finding nothing untoward about the proceedings, it concluded that a “party may not allege on appeal as error an action which he had induced the tribunal to take.” In other words, Lagunum habere et quoque edere non potes. You can’t have your cake and eat it too.