FEDERAL JUDGE LIFTS BAN ON PLEA DEALS

Compromise grants defendants more rights to appeal

U.S. Chief District Judge Graham Mullen, who four months ago stopped
accepting most plea agreements, is permitting the deals again following a
compromise that gives federal criminal defendants more rights to appeal
their sentences.

The compromise also gives Mullen -- and the district's three other federal
judges -- the power to decide if issues that come up during sentencings
should be reviewed by the 4th U.S. Circuit Court of Appeals in Richmond, Va.

Mullen described himself as gratified at the compromise reached by defense
lawyers and government prosecutors.

"This compromise protects the rights of defendants when unexpected issues
come up that were not the subject of negotiations in plea agreements,"
Mullen said. "It seems to me to be appropriate that defendants are able to
appeal if the issues are unusual enough."

Mullen, in an order that threatened to dramatically slow prosecutions of
bank robbers, drug dealers and white-collar criminals, announced in June
that he would no longer accept plea agreements that force defendants to give
up their rights to appeal.

The judge called such deals "unconscionable" and questioned why defendants
- -- and not prosecutors -- had to give up their appeal rights.

"There are issues that come up that ought to be appealable," the judge told
The Observer in July. "The order I've issued is the only way I can assure
that issues that are appealable are appealable."

Mullen's decision to resume accepting plea deals comes after months of
negotiations between prosecutors and defense lawyers to reach a compromise
in the dispute that threatened to turn into a battle of wills between the
veteran judge and prosecutors.

Defense lawyers Pete Anderson, Eben Rawls, James Wyatt and Lyle Yurko along
with former federal prosecutor Kenneth Bell helped forge the compromise.

"Both sides worked very hard to keep the ends of justice in mind and agreed
upon a resolution that satisfies both of their objectives," Wyatt said.
"It's a win-win situation for the federal judicial system."

Bell, who until earlier this year was second in command at the U.S.
Attorney's Office in Charlotte, worried that Mullen's refusal to accept plea
agreements could lead to harsher punishments for many defendants.

"Defendants need to have the ability to plead guilty and work out agreements
with the government," said Bell, now a partner with the Charlotte law firm
of Mayer, Brown, Rowe & Maw. "Both parties want to be able to negotiate. The
government gets a conviction and a sentence it thinks is just. The defendant
gets a sentence that is lighter than it otherwise would have been."

Yurko also thought Mullen's decision would hurt many defendants.

"This was a significant effort on the part of everybody to work out a
reasonable compromise," Yurko said. "This compromise protects more
defendants. And it restricts frivolous appeals."

Rawls praised Mullen for taking a stand to help protect defendants' rights.

"Judge Mullen is a powerful intellectual force on the bench," Rawls said.
"He understands the judiciary's role in balancing the power of prosecutors."

In Charlotte and the Western District of North Carolina, most federal
defendants -- about nine out of every 10 -- plead guilty. The majority do so
after striking deals with prosecutors.

The plea agreements have generally prohibited appeals unless defendants
didn't think they had effective assistance from their lawyers or if they
alleged prosecutorial misconduct. While defendants gave up their rights to
appeal their sentences, prosecutors retained their rights to seek a review
before the federal appeals court.

Such plea agreements have been used in Charlotte and the Western District of
North Carolina since at least 1995.

Prosecutors, in a motion urging Mullen to reconsider his decision, warned
that the judge's refusal to accept plea agreements would likely "bring the
administration of justice in this jurisdiction to a grinding halt."

Prosecutors argued that plea agreements prohibiting appeals benefit both
defendants and the government.

Defendants gain concessions from the government for lenient sentences by
agreeing not to appeal.

The government benefits by conserving resources when cases are concluded and
not appealed.

The compromise will allow defendants to appeal their sentences if something
unforeseen happens that wasn't contemplated in their plea agreement and
exposes them to longer prison sentences.

There could be, for example, unforeseen disclosures about defendants'
criminal records or disputes over facts and interpretations of laws.

The new plea agreements also give Mullen and U.S. District Judges Brent
McKnight, Lacy Thornburg and Richard Voorhees the power to decide if
sentencing issues are "of such an unusual nature" that they require review
by the federal appeals court.

Prosecutors will retain their rights to appeal under the new plea
agreements.

Defense lawyer Pete Anderson, a onetime law clerk for Mullen, said his
former boss was troubled by plea agreements that required defendants to give
up their rights to appeal but allowed prosecutors to keep those rights.

"After a decade on the bench, Judge Mullen is deeply concerned about issues
of justice and fairness," said Anderson, a former federal prosecutor in
Charlotte.

"Instead of standing silent, he took affirmative steps and made his opinion
known about these plea agreements, and that brought about this compromise."

Anderson also praised prosecutors for making compromises. "The U.S.
Attorney's Office deserves credit for not making this a battle of wills.
This was resolved in a productive way."

Assistant U.S. Attorney David Brown, who heads the criminal division of the
U.S. Attorney's Office, was among the prosecutors who helped hammer out the
compromise.

"We tried not to draw a line in the sand," Brown said. "This was a
reasonable compromise of a delicate issue.

"The judge properly identified some areas where we also believe defendants
should have a right to appeal. The judge also has recognized our desire to
have some finality when there's a plea.

"The overriding concern for our office was that we get back to the business
of prosecuting and resolving cases," Brown said. "We can do that now."