Over a sharp dissent, the full 9th Circuit today declined to reconsider the view that prosecutors have a constitutional obligation to fulfill promises made to successfully induce a guilty plea.
The San Diego County District Attorney’s office agreed to not bring other charges against defendant Michael Daniel Cuero in exchange for him pleading guilty to only two felonies, related to gun possession and driving under the influence, which together could carry a maximum prison time of less than 15 years. After the plea agreement, the prosecutor amended the criminal complaint to add additional charges, and Cuero was ultimately sentenced to “25 years to life” in the case.
Writing for the majority in a 2–1 panel decision last summer, Judge Kim Mclane Wardlaw concluded the prosecutor’s addition of new criminal charges breached the plea agreement in violation of both state contract law and, according to her reading of Supreme Court precedent, the Due Process Clause. The District Attorney’s request to have Wardlaw’s opinion reviewed by the 9th Circuit sitting en banc was rejected today, as a majority of the circuit’s active judges voted against a rehearing.
In a 24-page dissent from the decision not to rehear the case, Judge Consuelo María Callahan contended that the prosecutor’s promises as reflected in the plea agreement weren’t enforceable, noting that they predated the court entering a judgment in the case. She wrote that “the Supreme Court has never held that the Due Process Clause precludes post-plea, pre-judgment amendments to a complaint” and that Wardlaw’s opinion was an improper “exercise of raw federal judiciary power.”
After mentioning that the defendant had a long criminal record and had badly injured the victim, who was standing by the road when Cuero’s car crashed into him, Callahan wrote that “the majority appears blind to the practical implications of its ruling” and “substantially interferes with California’s criminal justice system.” She concluded:
The true injustice here is that Cuero will not have to serve the sentence that the Superior Court legally imposed. In failing to follow the Supreme Court’s direction to defer to the state court’s reasonable determination, the majority has not only deprived Jeffrey Feldman and his family of the justice to which they are entitled, but has also stripped California of a tool used to ensure that criminal defendants receive sentences that are commensurate with all of the offenses they have committed.
In an unusual move, Wardlaw responded with a 12-page opinion concurring in the denial of rehearing. Citing the 1971 case of Santobello vs. New York, Wardlaw wrote that “the Supreme Court has held distinctly contrary to the dissent’s view” that due process protections don’t apply to plea agreements prior to sentencing.
“The Supreme Court held that Santobello had a due process right to enforce the terms of his plea agreement, finding that the prosecutor breached the agreement and that ‘the adjudicative element inherent in accepting a plea of guilty’ must contain safeguards to protect the rights of defendants, including the right to have a prosecutorial promise fulfilled when such promise was used to induce a guilty plea,” Wardlaw wrote.
Wardlaw also said Callahan “holds an alternative view of state law untethered to reality.” She explained:
California law does not permit amendment to the complaint when the guilty plea is entered in reliance on a plea agreement precisely because such an interpretation would run afoul of the due process protections that attach under those circumstances. The dissent is therefore wrong as a matter of state as well as constitutional law.
Callahan suggested the case isn’t over. With the 9th Circuit ruling against the prosecutor, “we invite summary reversal by the Supreme Court,” she wrote.
Wardlaw, in contrast, wrote that “there is no need for the dissent’s ‘the sky is falling’ rhetoric,” as “the state court’s decision was contrary to then-clearly established Supreme Court law governing guilty pleas induced by agreements with the prosecutor.”
“It is no wonder that a majority of our active judges declined to rehear this simple appeal en banc,” Wardlaw wrote.
(Story originally appeared at Medium.)