Live from Miami IV: Plea Bargaining Post Booker

I found this to be an excellent and well prepared panel probably the best of the conference to this point.

This panel features ABA CJS Committee chair on Sentencing and Incarceration Barry Boss
Hon Judge Downes (replacing Judge Lee of the ND VA.)
Jeff Sloman Chief of Criminal in SD Fl.
Les Zorn- US Dept of Probation

Stats in the Courtroom:Beryl Howell USSC:
DoJ feared more trials govt would have less leverage to require snitches and less incentive to plea out early:

1 year later the stats show:
A crim trials up slightly to 5.5% from 4% of 70K+ cases
b. Govt sponsered departs and substantial assistance motions is flat 14% same as before
c. early plea is still up at 68% over 63 and 62 percent in 03 and 02

Barry Boss Defense attorney:

PB remains an uphill battle. There are 2 types of agreements 1 where we agree and 2 where we think it should be probation and they think it is life.
often however you and pros agree but the guidelines stand in the way.

In the second section is trying to get an opportunity to litigate our differences andso we may not want to sign the plea agreemt Post BOoker

Post Booker you may want to waive your appeal w/ the Prosecution.
18usc 1871 Rights to victims acr which allows a mandamus.

Zorn: PO needs to look to the plea agreement and digest it but then you still must do an independant inquiry. our main objective is to get information that we feel should go to the court. We prepare our reports for our judges not the Prosecutor or Defense lawyer or even the victim.

One element we deal with is 3553a factors do not appear in the plea agreement. Our job is to bring that information to the court as well. Def atty should Bring the issues to the PO Early on. We will make every effort to look into those issues.
Plea agreements are getting more detailed which include guideline calcs. We though have to check those and advise the application provisions to the court.

Sloman: DOJ Disagrees with what the stats show. AG GOnzolez says is still with the topless guideline. There is concern with the sexual abuse issues.

Judge Downs respectfully disagrees with AG Gonzolez on the sex crime issue. There is not
There is a power struggle going on tween the DOJ and the A3 judges. I respect his job but it alarms judges that before we let dust settle on Booker
There is a need to get a fix before we know we need a fix.
Article III jdges doing goofy things but the Ct of App will reach the right result and the Supremes will straighten out the conflicts
SOme members aree pandering in certain types of crimes. Esp Sex Crimes.
Relying on antedotal evidence to make
I don't kjnow of a signle man min sent is antithetical to sound sentencing policy. The experts are telling them that this will wreak real havoc and will undue the sentencing guidelines.
I don't have to accept 11c1c agreements.
Historical drug conspiracys are seeing these 11c1c dispos
Pleas whats contained Stips as to relevent conduct and stips to a specific sentence guideline may accept that the agreed sentence if it is within the guideline range or if outside the court is convinced the reasons for same is
If I am going to reject then I must give notice and then deft can withdraw the plea. IF not deft has to be put on notice that he may not get the dispo he decided.
There will be more binding 11c1c agreements. the court should not just reject them willy nilly but it should require the writer of the report to do this

moderator asks:
How do you insulate a stip from the court and PO?
Boss: On C1c pleas, both sides want to get stability and predicability. ON C1c pleas you must look at guideline 6B1.2, however while it applies to C1C pleas, it is antiquated and not adjusted for Booker. It is no longer accurate. So you can get the court to accept a departure or a C1c agreement now even if the departure would not be a justifiable departure in the guideline book/

Stip factors of 3553a material into the fact in the plea agreement to cover the factors in the agreement
with Regard to particular stips we can maximize the chance it sticks. Word it that the prosecution cannot prove the fact of an upward adjustment beyond a preponderance of the evidence. Unless the judge holds his own hearing your good.

Sloman: Deft. looking for a slant on a case can be dangerous. Now there may be a witness who can hurt your stip but getting on the record that the case can't be proved beyond a preponderance so that if the AUSA can't cooberate the fact then the opinon is not intellectually dishonest.

Moderator: DoJ has a long standing fear of 5k1 adj being given without a govt motion. Have you seen situations where the judge has granted a downward departure where the govt hasnt sponsered it because the cooperation provided didn 't rise to the level of substantial assistance. Booker will not affect the cooperation numbers because someone who wants to cooperate will go down the government's road. The 5k departure will only count with "imperfect cooperation"

Sloman's concern is not with the guy who tried his best and goes as far as he can go or the guy who is in a long term cooperation agrerement has done a lot of really good stuff and maybe has stuff he is working on but comes to sentencing and says let me tell you what he has done. With work out there to be done it is not a full picture of the defendant.
Of course where a guy is only facing 36 months and your in your 19 month with 2 trials to go then maybe you have no choice but to push it/

Note there are only 28 cases system wide where 3553a variances were given just on cooperation issues alone.

Crime Victiims Rights Act of 2004.
Requires victims a rt to be heard ussg 6A1.5 reflects the act
How is CVRA playing out in the courtroom and in plea barginging.
Barry Boss: you have to know the victim has significant rights you may want the AUSA and have them sign off on the agreement not to participate in the process.
Sloman:
Crime vic is not the prosecutors best friend. A Botox posioning case (fake botox) victim thinks the death penalty was too good for the deft. but the AusA did come to an agreement. The victim came in and railed against the pros and the deft! judge ignored them.
They can face disiplinary charges for willful and wanton disregaurd for the victims rights.
Zorn spoke to the PO as a victims voice in the probation report, We see there is another level of reporting. Probation thinks it adds to the information the court has and likes the new law.

Under the circumstances where you think the victim is going to not go with the plea, you should seek out a C1c plea. C1c is not only good as to the actual sentencing but to the sentencing factors. Maybe the thing to do if you can't agree on the actual sentence but you can get the facts in a stip to protect from the victim.