FEDERAL JUDGE NOT TAKING PLEA DEALS

Prosecutor Says Process Will Grind To A Halt

Charlotte's chief federal judge has stopped accepting virtually all plea
agreements, a move that could dramatically slow prosecutions of bank
robbers, drug dealers and white-collar criminals.

U.S. Chief District Judge Graham Mullen's new policy affects plea agreements
that force criminals to give up their right to appeal. Those account for
almost all plea agreements in federal courts in Charlotte and the Western
District of North Carolina.

Mullen, in an order issued in June, called such agreements "unconscionable"
and announced he would no longer accept the deals.

"I don't think it's right," the judge told The Observer.

Noting that federal prosecutors retain their right to appeal, the judge
added: "Defendants have to take their chances with judges and the government
does not. Even in guilty pleas, judges can make mistakes."

Mullen also believes that appeals would pave the way for appellate courts to
clarify sentencing guidelines and give judges more direction in their
powers.

Federal prosecutors have asked Mullen to reconsider.

"Refusal to enforce current and future plea agreements ... is likely to
bring the administration of justice in this jurisdiction to a grinding
halt," Assistant U.S. Attorney David Brown wrote in a motion asking the
judge to reverse his order.

Prosecutors pointed out that plea agreements require defendants to give up
many of their rights, including their rights to jury trials, to confront and
cross-examine witnesses, and to refuse to incriminate themselves.

Mullen's controversial order is a hot topic among Mecklenburg's criminal
defense lawyers.

"It's a test of wills between Judge Mullen and the U.S. attorney's office,"
said one defense lawyer who practices in federal court and didn't want to be
quoted by name. "Something is going to have to give. Somebody is going to
get their nose skinned up over this."

Mullen doesn't talk as if he will budge -- short of a compromise that allows
at least some appeals. "If the system breaks down, it breaks down," the
judge said.

Some defense lawyers praise the judge's decision. Others worry that
defendants without deals from prosecutors might get harsher punishments.

"Some lawyers think Judge Mullen is a hero for standing up to the government
for the little guy," defense lawyer Deke Falls said. "At the same time, if
the government sticks to its guns and won't change its plea agreements,
defendants could be in trouble."

The plea agreements used by prosecutors in the Western District of North
Carolina haven't prohibited all appeals. Defendants have had the right to
appeal if they believe they didn't receive effective assistance from their
lawyers or if they allege prosecutorial misconduct.

Since Mullen's order last month, prosecutors have met with the judge in
hopes of reaching a compromise. They've also modified the wording in plea
agreements giving defendants another limited right to appeal if judges
impose stiffer sentences that are outside the deal.

Mullen is still looking into the word changes but remains skeptical the new
plea agreements will satisfy his concerns about defendants' rights to
appeal.

If a compromise can't be reached, the nearly 200 defendants assigned to
Mullen's courtroom each year will either have to plead guilty to all charges
without a deal or go to trial. Either way, they risk tougher penalties.

Most federal defendants -- about nine out of every 10 -- plead guilty. The
majority do so after striking deals with prosecutors.

Mullen recognizes he wouldn't be able to hold trials for all the defendants
assigned to him each year. In the past three years, 568 defendants have been
assigned to the chief district judge.

"No one judge can try all the cases filed each year," Mullen said. "The
system would get kind of clogged up."

In a worst-case scenario if a compromise can't be reached over the
controversial plea agreements, Mullen would have no choice but to dismiss
charges if defendants can't be tried to meet speedy trial laws.

Federal law requires that defendants be tried within 70 days after they are
indicted. But prosecutors, because of delays from pretrial motions, often
have a year or more to put defendants on trial.

"No, I don't want to be dismissing charges," Mullen said. "But if the 70-day
rule gets violated, the court is required to dismiss charges."

U.S. District Judges Lacy Thornburg in Asheville and Richard Voorhees in
Charlotte have not issued orders refusing to accept such plea deals.

Defense lawyers worry about their clients giving up their right to appeal,
particularly if something unexpected and not addressed in the plea agreement
comes up months later at sentencing that leads to a harsher punishment.

"It's a questionable practice," said defense attorney Noell Tin. "There are
legal issues that can come up at the sentencing that ought to be appealed."

Defense lawyer Falls said: "I think Judge Mullen sees it as inequitable that
prosecutors get to retain their right to appeal and defendants have to give
up their right to appeal. There's something inherently unfair about that."

Mullen has long been frustrated with federal sentencing guidelines, which
limit judges' discretion in tailoring punishments to the criminals and the
facts of the case.

Mullen said his sentiments are shared by federal judges nationwide.

"There's only one person in the courtroom who is supposed to be neutral,"
Mullen said. "It's my belief that the sentencing guidelines restrict
judicial discretion too much. They are not guidelines but legal rules judges
are required to follow."

The 63-year-old federal judge said allowing defendants who plead guilty to
appeal would help develop a body of appellate law on sentencings. That, he
believes, would provide him and other judges with more guidelines on what
they can and can't do in imposing punishments, leading to more certainty in
sentences and reducing the need for appeals.

U.S. Attorney Bob Conrad declined to comment on the controversy. "We are
accustomed to litigating sentencing guidelines issues in the courtroom --
not in newspapers," the prosecutor said.

In court documents, prosecutors warned that both the government and criminal
defendants will be harmed by Mullen's refusal to accept the plea agreements.

Such agreements, prosecutors said, have been used in the Western District of
North Carolina since at least 1995. In other districts within the 4th
Circuit, which includes the Carolinas, these waivers in some form date back
to at least 1989.

The 4th U.S. Circuit Court of Appeals in Richmond, Va., and other federal
appeals courts have upheld plea agreements that require defendants to give
up their right to appeal, the prosecutors' motion said.

Plea agreements prohibiting appeals, Brown argued in his motion, benefit
both the government and defendants.

Defendants can gain concessions from the government for lenient sentences by
agreeing not to appeal, the prosecutor said. The government, on the other
hand, benefits by conserving resources when the cases are concluded and not
appealed.

But Mullen says appeals would serve an important purpose -- for both
defendants and judges.

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