The defendant is charged with armed robbery. He and the government reach agreement on a plea deal in which the government agrees to ask for no more than 10 years of incarceration. In a memorandum submitted to the judge before sentencing, the government then violates that agreement by asking the judge to impose 20 years.
It is the judge, not the defense lawyer, who notices the inconsistency between the sentencing memorandum and the plea agreement and who raises it at the outset of the sentencing hearing. The prosecutor apologizes for the mistake and promises to retract the memorandum, to be replaced by another memorandum in which the government asks for the agreed-upon 10 years.
Noting that “everybody’s ready for a sentencing today,” the judge suggests that there is not “much to be gained” by delaying the sentencing to await the government’s submission of a corrected memorandum. To this defense counsel responds: “As long as the record is corrected, Your Honor.” Both sides then proceed with the allocutions with the prosecutor stating that, in the government’s view, “a ten-year sentence is very generous in this case.” Again, defense counsel does not object. The judge ultimately sentences the defendant to the recommended 10 years.
This was the fact scenario facing the D.C. Court of Appeals in Clark v. United States, ___ A.3d ___ (D.C. 2012). The defendant asserted on appeal that the prosecutor violated the plea agreement by recommending a twenty-year sentence after the government promised to cap its allocution at ten years. He further contended that the government compounded the problem, even after the twenty-year recommendation had been withdrawn, by arguing that a ten-year sentence would be “very generous.” The requested remedy was a vacation of the defendant’s sentence and the defendant’s re-sentencing by a different judge.
The Court agreed that the prosecutor’s breach of the plea agreement was both “grave and inexcusable”: “This is an imperfect world, and even well-intentioned people make mistakes, but this error had potentially devastating consequences, and it is not to be readily excused.” The Court also agreed that the prosecutor then compounded the problem by expressing dissatisfaction with the agreement as “very generous.”
The practical consequences of the prosecutor’s breach may not have been easy to dissipate. To quote Judge Gewin’s memorable articulation in Dunn v. United States, 307 F.2d 883, 886 (5th Cir. 1962), “one cannot unring a bell; after the thrust of the saber it is difficult to forget the wound; and finally, if you throw a skunk into the jury box, you can’t instruct the jury not to smell it.”
At the same time, the Court noted that a trial judge, as opposed to members of a jury, is
presumed to have a trained and disciplined judicial intellect, which in a nonjury trial can receive evidence, rule on its admissibility, and discard from his eventual decision on the merits that evidence which he has ruled inadmissible for the purposes of his decision. This mental discipline is supposed to be part of the resources which the trial judge brings to his task . . .
The Court also noted that defense counsel failed to object to either retention of the sentencing by the potentially contaminated judge or to “the time or manner in which the judge proposed to proceed.” After all, wrote the Court, it “has been the law of this jurisdiction for more than a century that . . . a party cannot be heard to complain in an appellate court of that which he has co-operated in a lower court.” Concluding that it did not believe that “anything that the judge did or failed to do seriously affected the fairness, integrity or public reputation of the proceedings,” it thus denied the appeal.