CBA Record March-April 2021

Making the Case for Transparency and Reform in Plea Negotiations By Katie Liss, CBA Record Editorial Board P lea negotiations make up the essence of the criminal justice system. Earlier this year, CBA

President Maryam Ahmad welcomed Ohio Supreme Court Justice Michael P. Donnelly as a special guest speaker to discuss the criminal plea negotiation pro- cess and whether it should be reformed. The discussion was moderated by John W. Wilson, an assistant public defender with the Law Office of the Cook County Public Defender. Justice Donnelly pointed out that in 2018, over 97% of all criminal cases in Ohio were resolved through negotiated plea agreements. Because the vast major- ity of criminal cases are resolved through plea negotiations, he believes it is impera- tive for defense attorneys and prosecutors to have the ability to work fairly together with the public having full transparency of the plea negotiation process. Prior to joining the Supreme Court of Ohio in 2019, Justice Donnelly served as a trial judge on the Cuyahoga County Court of Common Pleas, General Divi- sion from 2005 to 2018. Before serving as a trial judge, he was an assistant Cuyahoga County Prosecutor from 1992 until 1997 and then spent seven years practicing civil litigation. In traditional plea negotiations in a criminal dispute, a proposed plea agreement is presented to the judge for approval, typically in the judge’s chambers with only the judge and the attorneys present. Following the presentation of the plea agreement, the judge determines whether to accept or reject it. Trial judges have broad and nearly unfettered discre- tion in making this decision. Unfortu- nately, disparate judicial philosophies exist regarding the judge’s role in the plea negotiation process. Justice Donnelly believes that therein lies the systemic flaw within our criminal justice system. For

Pictured at the PleaNegotiations seminar fromthe top left: Cook CountyAssistant PublicDefender JohnW.Wilson, CBAPresidentMaryamAhmad, andOhioSupreme Court Justice Michael P. Donnelly. To learn more about transparency and reform in plea negotiations watch the on demand recording at learn.chicagobar.org (IL MCLE Credit).

referred to as the major epiphany of his legal career: “[n]o stakeholder in the plea negotiation process, including the judge, should ever say anything in chambers and off the record that he or she would not repeat verbatim in open court while on the record.” Going forward, Justice Donnelly conducted his plea negotiations on the record as a trial judge for at least a decade and made several observations, as noted in his article entitled Truth or Consequences: Making the Case for Trans- parency and Reform in the Plea Negotiation Process published last year by the Ohio State Journal of Criminal Law. The public mistrusts the legal system because the public is kept in the dark, according to Justice Donnelly. A lack of full transparency causes people to naturally become suspicious. By having plea negotiations in public view with full transparency, the defendant can under- stand the details and process of the plea negations and voluntarily enter into a plea agreement. Justice Donnelly believes this type of transparency will help restore the

example, some judges view their role as a check on the entire process; some may have personal plea policies (e.g., they may refuse a proposed plea agreement that reduces a felony charge to a misde- meanor); some may view their sentencing power as solely and inherently within their authority as judge, and other judges may refuse to make any commitment at all regarding the sentence. As a trial judge, Justice Donnelly initially conducted plea negotiation discussions in chambers with both the prosecutor and the defense. However, after roughly a year of conducting private pretrial hearings as the neutral arbiter, he began to question why plea negotiations were not conducted in open court for the public to see and hear. He believed that it was not an efficient use of the court’s time to repeat what was said in chambers to the defendant in open court. Moreover, Justice Donnelly thought there is a lack of accountability without having a record of what was said during these negotiations. Justice Donnelly came to what he

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