JUDGE MULLEN VS. THE FEDERAL PROSECUTORS

Conflict Is Grounded In the Federal System's Separation of Powers

On June 5 Chief U.S. District Judge Graham Mullen issued an unusual order
declaring he would no longer accept plea agreements negotiated by federal
prosecutors and defense attorneys in which defendants waived and the
government retained rights to appeal the sentence. "The undersigned is of
the opinion that such agreements are unconscionable," wrote Mullen in a
one-page order, citing no statutory or case authority.

On June 9 David Brown, assistant U.S. Attorney, filed a "motion to
reconsider" for the government.

His response ran eight pages of cool abstractions and multiple case
citations, pointing out that appeal waivers by defendants are common and
have been upheld across the country. It concluded: "Refusal to enforce ...
plea agreements containing [defendants'] waiver of appellate rights is
likely to bring the administration of justice in this jurisdiction to a
grinding halt."

Three days later Judge Mullen filed a half-page order, ignoring Brown's
arguments and merely clarifying that his order would apply only to plea
agreements signed after June 5.

Since then, cases have been accumulating for trial, instead of sentencing,
on Mullen's docket, even when parties have indicated their willingness to
enter a plea agreement with the verboten provision (in slightly altered
form).

Justice in the Western District of North Carolina, covering about a third of
the state, is not likely to come to a "grinding halt," as Mullen occupies
only one of five district judgeships. But, while a judge may occasionally
decline to accept a plea agreement for case-specific reasons, a blanket
order refusing all plea agreements containing a provision previously deemed
lawful raises important questions.

Plea agreements are the vital grease of the criminal justice machinery. The
overwhelming majority of all criminal cases in the United States, state and
federal, are resolved voluntarily between the parties. If even half of the
cases had to go to trial, the system would indeed come to a grinding halt --
or have to be enormously expanded.

Moreover, when prosecutors are doing their job, they don't bring iffy cases.
With provable charges filed against them, most defendants will plead guilty,
especially after they obtain some concessions. Thus a plea agreement, like a
settlement in a civil case, normally brings litigation to an end.

With the advent of the federal sentencing guidelines in the late 1980s,
however, a new layer of law was created, opening appeal of sentences after a
guilty plea. Enacted by Congress, the guidelines law sought to force judges
nationwide to impose more uniform punishment for similar crimes.

Instead of an individual judge having broad statutory discretion to impose
imprisonment ("up to five years" was common), a complicated combination of
past criminal conduct, the severity of an individual crime and other factors
narrows the statutory range. Generally judges must impose a sentence "within
the guidelines." Many have felt bridled by the system.

After being surprised in recent years by light sentences from Judge Mullen
despite the guidelines, prosecutors have appealed to the Fourth Circuit
Court of Appeals in Richmond. Often Mullen has been overturned and ordered
to impose a more severe sentence.

In a case involving domestic violence by heavyweight boxing champion Riddick
Bowe, the judge was twice reversed after twice allowing Bowe to avoid
imprisonment, even though his plea agreement generated a guideline term of
18-24 months.

In another case, John Hudson pled guilty to a crack cocaine violation, then
fled and failed to appear for sentencing. Mullen was reversed for not
imposing guideline enhancements. The appeals court pointedly assigned the
case for resentencing to another judge because Mullen had said he had "grave
difficulty in ordering [Hudson] incarcerated" for the indicated guideline
sentence.

Other reversals of Mullen in guideline cases with plea agreements, appealed
by the government, include Dell Romary (bank robbery), Bruce Little (bank
robbery), and Delores Hairston (bank fraud).

It is against this background that the judge's June 5 order should be
understood. The federal system is one of checks and balances and separation
of powers, generating constant conflicts.

Mullen's move, it seems, is a play for more control, because of his view
that some guideline sentences are too long. On the other hand, prosecutors
want to preserve their right to appeal in plea agreements because they're
unsure whether the judge will impose the sentence called for under the
guidelines. Further, if the guidelines aren't fully applied in this district
because of a single member of the judicial branch, the congressional will to
achieve more uniform sentencing will have been thwarted.

Some separation-of-powers brinksmanship is undeniably underway in federal
court in Charlotte. Eventually somebody is bound to blink.