The United States Court of Appeals for the 10th Circuit in Denver held, on the day after Christmas, that the rejection of a plea agreement of a white supremacist terrorist based upon secret evidence was harmless, even though the defendant ultimately received a much longer sentence. Usually, when a prosecutor and a defense attorney reach a plea bargain in a criminal prosecution, the judge accepts the deal as a matter of course, but not always, and not always for reasons that a defendant is given an opportunity to address.
Joe Rakes was charged with a conspiracy involving a white supremacist group, the Soldiers of Aryan Culture, which sent a letter threatening attorneys in Utah’s U.S. Attorney’s office based on the fact that they put other members of the group in prison. It said in the key phrase:
You stupid bitch! It is because of you that my brothers are in jail for the Rico. I know you live on the [street name redacted]. We will get you. til the casket drops.
Rakes and prosecutors reached a plea agreement whose core provision called for him to spend nine months incarcerated and also had a number of other conditions. It was conditionally accepted by the judge. But the judge rejected it, in part based upon a victim impact statement from the prosecutor who was a target of the letter, which was not disclosed to the defendant. The judge stated in a ruling rejecting the deal:
This is a serious matter. The impact on a respected Assistant U.S. Attorney in her role as an Assistant U.S. Attorney is very real. Furthermore, the impact on her as an individual, on her family is very real. And the Court is concerned about the message that might be sent if this matter is not properly punished.
The generous deal may have had something to do with the somewhat thin evidence of the conspiracy and the possibility that a key participant in the conspiracy may have written the letter because she was “threatened by someone else or the voices in her head,” rather than by Rakes, as the prosecution alleged.
The plea was withdrawn, and Rakes went to trial, was convicted and was ultimately sentenced to 63 months in prison.
The appellate court recognized that making important decisions in the criminal justice process was not the best practice.
We agree with Mr. Rakes and the government that it would have been better for the district court to have provided the parties with copies of the victim impact letter prior to its disposition of the plea agreement. Doing so would have made more transparent the district court’s concerns about whether the plea agreement’s proposed sentence adequately accounted for the crime’s impact on the victim prosecutor and would have allowed the parties to address those concerns more intelligently.
It also determined that in this particular case, the non-disclosure of a victim impact statement was harmless, because the defendant was on notice of the general issues to be raised and couldn’t explain how the additional evidence would have changed the result:
In fairness to the district court we must also note that, although the parties did not have the victim’s letter, they were at least on notice of its existence and could have sought its production. The pre-sentence report prepared for the plea hearing explicitly stated, under “Victim Impact,” that “[the victim] is preparing a statement that will be submitted directly to the Court.” . . . . After Mr. Rakes became aware of the victim impact letter, he asked the district court to reconsider its decision to reject the parties’ plea agreement, arguing that the court’s decision had improperly relied on undisclosed information. The district court denied reconsideration, citing, among other grounds, the fact that it “would have rejected the plea agreement regardless of the letter for the reasons set forth plainly on the record.” . . . Those reasons included the district court’s assessment that the Guidelines advisory sentence for the crime to which Mr. Rakes agreed to plead guilty was at least double that of the parties’ agreed sentence and neither party had offered a persuasive reason for such a disparity under the facts and circumstances of this case. . . . Mr. Rakes likewise offers us no reason to doubt the district court’s assessment . . . . Neither does he identify, nor did he state in his motion to reconsider, what information in the victim’s letter was incorrect or what arguments addressing it he would have made to the district court. Without being given some reason to think that a sentencing court would have reached a different outcome in the disposition of the plea agreement had the letter been disclosed, we are compelled to conclude that, even taking the district court’s failure to disclose the letter to be error, it was harmless error.
But, notably, the appellate court also left open the possibility that relying on secret evidence to reject a plea agreement might be harmless even if the information did change the trial court’s mind:
[B]y its plain terms, [the] Rule . . . obligates the district court to provide the parties advance access to information on which it “will rely in sentencing.” And the harm it seeks to safeguard against is sentencing based on evidence that the parties have not had reasonable notice of and opportunity to address. Here, however, the court did not sentence Mr. Rakes. . . As it is . . . we cannot say the rule, by its plain terms, was violated, or that the harm it seeks to avoid was implicated. Beyond [the] Rule . . . A district court enjoys substantial discretion in deciding whether to accept or reject a plea agreement . . . But that discretion is not without limit. . . . While a defendant has no absolute right to have his plea agreement accepted, in our supervisory capacity we have placed some boundaries on the district court’s discretion – requiring district courts, for example, to articulate reasons on the record if and when they decide to reject such agreements in order, among other things, “to insure district courts exercise sound judicial discretion.” . . . The parties, however, have directed us to no authority on this issue and, at the end of the day, we believe this case is properly resolved without reaching it.
While in this case the evidence was found to be harmless, since the general issues raised were known and no one later claimed the secret evidence was inaccurate, nothing in the ruling prevents a judge from making a similar ruling based upon secret “national security” information that was decisive in its importance and that a defendant felt was untrue. Yet, given that the vast majority of cases end in plea bargains that impose sentences less harsh than those that would be received after a trial, for many defendants, the acceptance of this bargain is the most important decision made by judges in their criminal justice process.