Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 74 C 2604, ABRAHAM L. MAROVITZ, Judge.
Cummings, Pell, and Bauer, Circuit Judges.
This is an appeal from the decision of the district court denying the petition of Samuel D. Robinson for a writ of habeas corpus. Pursuant to Fed. R. App. P. 22(b), the court certified the existence of probable cause for appeal. The present appeal varies from the frequent posture of the habeas cases in this court which is an appeal from the dismissal of the petition without an evidentiary hearing.
In the present case upon Robinson seeking post-conviction relief in the state courts, the case was remanded for an evidentiary hearing. People v. Robinson, 5 Ill. App. 3d 1065, 284 N.E.2d 505 (1972). The Cook County court denied relief following evidentiary hearing which action was affirmed on appeal. People v. Robinson, 17 Ill. App. 3d 310, 308 N.E.2d 88 (1974). In the district court, the parties stipulated that there were no additional witnesses to be called and that the district court could rely upon the testimony in the state court hearing in lieu of an evidentiary hearing in the federal court.
On this appeal, Robinson argues that the direct participation of the trial judge in negotiations leading to his plea of guilty was not consistent with constitutional standards and that he was denied effective assistance of counsel because the public defender represented multiple defendants with conflicting interests.
The thrust of appellant's first argument is that the trial judge's participation in plea negotiations constituted, under the facts of this case, an improper and unconstitutionally coercive influence upon petitioner's change of plea. In the state court evidentiary hearing, Robinson took the position that constitutionally the trial judge cannot participate in negotiations which lead up to the plea of guilty, which appears to be a contention for a per se rule against judicial intervention in the process. The district court, mistakenly according to the appellant, so construed the petitioner's position. In this court, Robinson denies he is arguing for a per se rule. The argument rests instead on an evidentiary claim that there was no effort by defense counsel and the prosecutor to reach agreement on a plea to the charge of murder prior to the court's participation and that, again prior to the judge's involvement, the appellant had not indicated a desire to plead guilty to the charge. The appellant characterizes the central issue as whether or not the constitution prohibits judges from actively engaging from the start in closed-door negotiations outside the presence of the defendant or any court reporters.
We note, first that this manner of characterizing the facts revealed in the evidentiary hearing is somewhat inaccurate. The record makes clear that Robinson's court appointed attorney had his client's approval to discuss with the prosecutor a reduction of the charge from murder to manslaughter. After communicating to Robinson the refusal of the State to agree to such a reduction, the appellant's counsel then told him that he would attempt to secure the statutory minimum sentence in further negotiations. The appointed counsel then met with the prosecutor and the judge in the judge's chambers to discuss a plea. We find no basis in the evidence for concluding that the judge intruded from the outset or actively initiated plea negotiations. On the contrary, the record suggests that defense counsel had a two-phase strategy: first to bargain for a reduced charge and, second, to bargain regarding the sentence. We think it clear that the defense attorney and the prosecutor did negotiate before their conference with the judge.
Even accepting on an arguendo basis appellant's characterization of the evidence, we would not be required to hold that the judge's participation in the negotiations here involved violated constitutional standards. Constitutional challenges to judicial participation in plea negotiations have appeared rather frequently in the reported cases. Plea bargaining, at least as practiced, has been the subject of adverse criticism.*fn1 Petitioner admits that negotiated guilty pleas are often permissible, but insists that the trial judge cannot constitutionally enter into plea negotiations until after a tentative agreement between prosecution and defense has been reached. This contention has been expressly rejected by the Fourth Circuit, and, quite recently, it has been impliedly rejected by this court.
In Brown v. Peyton, 435 F.2d 1352 (4th Cir. 1970), cert. denied, 406 U.S. 931, 32 L. Ed. 2d 133, 92 S. Ct. 1785 (1972), a state prisoner raised the issue whether the trial court's participation in plea bargaining negotiations vitiated the voluntariness of a subsequent guilty plea. The court adhered to its earlier view that properly conducted plea bargaining served a useful purpose for society, the prisoner, and the quality of justice in those cases which must be tried. The court expressly refused to hold that a judge's participation in the plea discussion in itself rendered the plea involuntary, stating as its reason that the American Bar Association Standards Relating to Pleas of Guilty prescribed a proper rule of practice, but did not state a constitutional limitation. Id. at 1357.*fn2
This court has not faced the exact question raised in Brown, supra, but it has given direct, serious consideration to major sections of the ABA Standards Relating to Pleas of Guilty, and to the Function of the Trial Judge, including § 4.1(a).*fn3 In Moody v. United States, 497 F.2d 359 (7th Cir. 1974), the court recognized that Santobello v. New York, 404 U.S. 257, 260-261, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971), has characterized "plea bargaining" as an essential component of the administration of justice which, when properly administered, is to be encouraged. The Moody decision explicitly focused discussion on the ABA Standards, but it does not suggest that they necessarily embody direct constitutional requirements. Indeed, an analysis of the language of Moody, which was circulated among all judges in regular active service, 497 F.2d 359, 365 n.7, clearly demonstrates that this court relied on its supervisory power, not constitutional grounds, in requiring federal trial courts to undertake thereafter an expanded Rule 11 inquiry.
Unlike our relationship with the federal district courts within this circuit, we have no supervisory power over the Cook County court. Moreover, the Illinois Supreme Court apparently views the ABA Standards pertaining to judicial participation in plea bargaining as stating a proper rule of practice but not as stating a constitutional limitation. This view is perfectly consistent not only with Brown and Moody, supra, but also with Santobello, supra. Unless the Fourteenth Amendment prohibits judicial participation in plea negotiations, this court should not interfere with state efforts to incorporate properly administered "plea bargaining" as one component, arguably an essential one, in its administration of criminal justice.
Subsequent to the murder conviction in the present case, the Illinois Supreme Court adopted a new rule regarding guilty pleas. Ill. Rev. Stat. ch. 110A, para. 402 (Supreme Court Rule 402). The Illinois Court followed the ABA Standards in large measure, but it did make some important modifications. Subparagraph (d) (1)*fn4 is particularly relevant to the present case. Although the ABA Standards expressly state that "the trial judge should not participate in plea discussions," American Bar Association Project on Standards for Criminal Justice, Standards Relating to Pleas of Guilty § 3.3, at 71-72 (1968); the state court of last resort modified the language by substituting the word "shall" for "should," and by replacing the word "participate" with "initiate." Note 4 supra. In appellant's previous state court appeal from the denial of post-conviction relief, the intermediate appellate court interpreted the variation from the language of the ABA Standards as ...