Rational Expectations of Leniency: Implicit Plea Agreements and the Prosecutor's Role as a Minister of Justice

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INTRODUCTION

Prosecutors routinely acquire the incriminating testimony of co-defendants, co-conspirators, informants, jailhouse snitches, and witnesses through the use of plea bargains and inducements. (1) The Supreme Court has explicitly recognized that plea bargains and inducements create motivations to lie. (2) Nevertheless, the function and history of the plea bargain is ingrained in our system of justice, and courts consistently hold that the existent procedural safeguards are sufficiently stringent to protect the accused from any unfair prejudice created by bargained-for testimony. (3)

The accused is protected by various procedural mechanisms that expose the existence of bargained-for testimony and allow the accused to attack its credibility. (4) The negotiation, creation, and performance of plea agreements and inducements are governed by rules of criminal procedure and informed by rules of professional conduct. (5) For instance, a plea bargain between the state and a testifying witness is discoverable, (6) many plea bargains are written, and the prosecution has an ethical and legal duty to disclose the agreement for its exculpatory value. (7) Moreover, all plea agreements are subject to the scrutiny of a properly instructed jury and zealous cross-examination by defense counsel. (8) These procedural safeguards exist to promote justice and accuracy in the courtroom. (9) They recognize that when a prosecutor offers leniency or money in exchange for incriminating testimony, there is a tremendous incentive for the witness to fabricate, self-exculpate, and cooperate. (10)

However, these safeguards fail to protect the rights of the accused and the integrity of the court when a witness cooperates with the prosecution but is not a party to a formal plea agreement. Through affirmative behavior, office policy, or a past course of conduct, a prosecutor can create a "rational expectation of leniency" (11) within the mind of a testifying witness. This rational expectation of leniency spawns the same dangers to the veracity of testimony and the credibility of witnesses as do traditional plea bargains. (12)

The stringent procedural safeguards governing plea bargains, however, are relaxed and rendered ineffective when the prosecution and the testifying witness do not reach a formal agreement. (13) Cross-examination and jury instructions, as presently used, fail to apprise the jury of the equally pervasive motivations to fabricate and self-exculpate possessed by witnesses who testify with a rational expectation of leniency instead of a formal plea agreement. (14)

Experience and social science suggest that a witness's propensity to fabricate is just as compelling whether he has a rational expectation of leniency or a formal agreement promising leniency. (15) The witness who testifies without a formal agreement is acutely aware of the heightened importance of the substance, power, and incriminating nature of his or her testimony, because his or her liberty might be contingent on the success or failure of the prosecution's case. In addition, jurors often give more weight and credibility to accomplice testimony where no formal plea agreement exists, because the testifying accomplice appears to waive his or her right against self-incrimination and to testify out of a desire for absolution and repentance. (16) Therefore, courts and prosecutors should recognize that the dangers posed by traditional plea bargains are equally pervasive when a witness has a rational expectation of leniency attributable to the prosecution. (17)

This Note shows that rational expectations of leniency implicate the same doubts about the veracity of testimony as traditional plea bargains. Furthermore, it argues that prosecutors, as ministers of justice entrusted to protect the procedural rights of the accused, (18) violate their ethical duties when they engage in implicit plea bargaining because such conduct circumvents and renders ineffective the procedural safeguards erected to protect the accused.

In Part I, I describe three situations in which prosecutors routinely create rational expectations of leniency in the minds of testifying witnesses without using formal plea agreements. I also describe the case law on the issue of informal plea agreements. In Part II, I explore the jurisprudence of the traditional plea bargain. The academic literature surrounding the Singleton (19) and Williamson (20) cases articulates the two dangers institutionalized plea bargains pose to the administration of justice. In Part III, I demonstrate how courts have constructed procedural safeguards to ensure the rights of the accused.

In Part IV, I explore how and why a witness's rational expectation of leniency implicates the same dangers to the administration of justice as the institutionalized plea bargain. I consider the relevant social science research into the effects of a witness's rational expectation of leniency. Research shows that witnesses are more likely to lie, more likely to cooperate, and more likely to fabricate when agents of the state make implicit rather than explicit promises of leniency. Moreover, the procedural safeguards erected to protect the accused from the dangers of the institutionalized plea agreement are ineffective when a witness merely has a rational expectation of leniency.

In Part V, I propose two solutions to mitigate the problems posed by rational expectations of leniency. First, I propose that, for the purposes of cross-examination, confrontation, and jury instructions, courts should not differentiate between witnesses who testify against the accused under a formal agreement or under a rational expectation of leniency. Second, I propose that prosecutors should explicitly recognize the ethical implications created by the implicit plea bargain and rational expectations of leniency: prosecutors' creating rational expectations of leniency in exchange for testimony violates ethical, legal, constitutional, and moral standards of conduct. As established by the American Bar Association Code of Professional Conduct, the prosecutor, as a minister of justice and not solely an advocate, has a duty to eliminate the practice of making implicit plea bargains.

I. JUDICIAL RESPONSE TO RATIONAL EXPECTATIONS OF LENIENCY

The United States Supreme Court held in Brady v. Maryland (21) that the prosecution is required to disclose all exculpatory evidence to the accused. (22) The Court held in Giglio v. United States (23) that the prosecution's failure to disclose a formal plea bargain with a testifying witness constitutes a Brady violation because the existence of the plea bargain calls into question the credibility of a key prosecution witness and therefore is exculpatory. (24) In Giglio, the defendant had "smoking gun" evidence of the prosecution's undisclosed, formal oral agreement with the witness; a government affidavit confirmed that an assistant district attorney made an overt promise not to prosecute the co-operating witness. (25) However, in many cases the defendant is unable to obtain such good evidence. Rather, the defendant must rely on persuasive circumstantial evidence that the prosecution conveyed a promise, agreement, or rational expectation of leniency overtly or covertly to a cooperating witness. (26) For example, the fact that the prosecution permitted a co-conspirator who testified against the defendant to plead guilty to a lesser offense might constitute evidence that an implicit agreement existed. (27)

A defendant might show that the prosecution created a rational expectation of leniency in the mind of a testifying witness in any of three ways. First, the defendant might allege that the prosecutor created such an expectation through affirmative conduct. (28) Second, the defendant might allege that the prosecutor's office had an unofficial "office policy" of charging cooperating witnesses with lesser offenses. (29) Third, the defendant might allege that the prosecutor's past course of conduct, over a substantial period of time, gave the cooperating witness, and his or her attorney, a rational expectation of leniency in exchange for cooperation. (30) In this Part, I show how courts have disposed of these three types of claims.

A. Affirmative Conduct of a Prosecutor

In Zuern v. Tate, William Zuern was convicted and sentenced to death for murdering a prison guard. (31) After exhausting his state court remedies, Zuern filed a writ of habeas corpus in federal court arguing that his conviction violated several provisions of the Constitution. (32) In particular, Zuern argued that the prosecution, in violation of Brady (33) and Giglio, (34) failed to disclose a plea agreement with a material witness and fellow inmate, Wayne Lewis. (35)

Although Lewis had been sentenced to prison for a maximum of ten years for violating his probation, he testified for the prosecution without the benefit of a formal agreement. (36) Lewis testified that "Zuern had expressed animus toward the guards. Thus, his testimony was important in establishing prior calculation and design." (37) Although both Lewis and the prosecution denied the existence of an agreement, "[w]ithin a matter of days after having testified ... the state filed a motion to mitigate Lewis' sentence. Shortly thereafter, the judge who had sentenced Lewis suspended further execution of that sentence." (38) Thus, Lewis was released from prison and avoided the possibility of a ten-year sentence only days after testifying for the prosecution against Zuern.

"According to Zuern, the temporal proximity between Lewis' testimony and the suspension of his sentence demonstrate[d] that Lewis provided that testimony pursuant to an agreement with the prosecution." (39) The trial court reasoned that "given Lewis' experience with the criminal justice system, he would have had an expectation that favorable testimony would result in his being rewarded by the prosecution." (40) Nevertheless, the trial court ultimately concluded, "such an expectation does not establish that such testimony was the product of having been explicitly promised anything." (41) The defense unsuccessfully argued "that the foregoing reasoning `countenances the formation of agreements between witnesses and the State, based on winks and nods, implicit understandings, soft words of hope imparted from the State to the witness that [are] never set [in] concrete terms.'" (42)

Fundamentally, the Zuern court held that although Lewis had a rational expectation of leniency, "nothing prevented [Zuern's] counsel from conducting ... a cross-examination of Lewis" and "asking him whether he hoped to get a benefit from testimony favorable to the prosecution." (43) Thus, the court concluded that cross-examination was an effective procedural safeguard to secure Zuern's right to a fair trial. (44)

B. An Office Policy of Leniency

In Darden v. United States, (45) Charles Darden was convicted of transporting heroin across the United States-Mexican border. (46) Darden appealed his conviction, arguing that the testimony of a co-conspirator, Sadie Mae Roberts, was obtained because the codefendant "could have reasonably believed that she would receive lenient treatment if she testified against appellant." (47) The defense argued that the United States Attorney's Office had an undisclosed office policy of prosecuting drug traffickers for lesser offenses if they cooperated with the prosecution in convicting a "bigger fish." (48) Roberts knew she had to implicate Darden to benefit from the policy. (49) The court readily recognized that "[b]oth Miss Roberts and her attorney were aware of this policy, and the consequent advantage to Miss Roberts to testify that her involvement was limited to her own use of the heroin." (50) Thus, Roberts's testimony was inherently unreliable because of her "strong motivation to implicate [Darden] and to exonerate" herself. (51) However, the Ninth Circuit upheld the conviction holding that "there was not even a promise or an agreement.... There is only [the codefendant's] reliance on the past policy of the United States Attorney's Office." (52) Therefore, "[t]he fact of a bargain, or of the hope or expectation of leniency affect[ed] only the weight of the testimony, not its admissibility." (53)

In essence, the Darden court held that Darden's right to a fair trial was protected because "[t]he jury decided adversely to appellant under proper instructions." (54)

C. A Prosecutor's Prior Course of Conduct

In Johnston v. Love, (55) the defendant James Johnston filed a writ of habeas corpus arguing that his multiple murder convictions should be reversed because the prosecution failed to disclose the contents of an agreement between the state and James Griffin, a material and incriminating state witness. (56) At trial, Griffin testified that he overheard a conversation in which Johnston discussed and planned the criminal acts. (57) At the time of his testimony, Griffin was incarcerated for burglary and had a charge of conspiracy to commit a triple homicide pending. (58) On direct and cross-examination at trial, Griffin stated that he did not have any deal with the prosecution. (59) However, after Johnston's conviction, the Commonwealth dismissed the conspiracy charges pending against Griffin. (60)

In a subsequent …