modifying rules governing judicial participation in sentence discussions, which had previously prohibited trial judges from initiating or participating in discussions aimed at reaching plea agreements, to allow a judge, at his or her discretionbut only in response to the request of a party, and not on the judge's own initiativeto state on the record the length of sentence that, on the basis of the information then available to the judge, appears to be appropriate for the charged offense
How later courts described this case
- modifying rules governing judicial participation in sentence discussions, which had previously prohibited trial judges from initiating or participating in discussions aimed at reaching plea agreements, to allow a judge, at his or her discretionbut only in response to the request of a party, and not on the judge's own initiativeto state on the record the length of sentence that, on the basis of the information then available to the judge, appears to be appropriate for the charged offense
- indicating that a Cobbs agreement is one in which a defendant agrees to plead guilty or no contest in reliance on the trial court’s preliminary evaluation of the sentence; however, the defendant is allowed to withdraw the plea in the event that the trial court determines that it must exceed the preliminary evaluation
- holding, “A judge’s candid statement of how a case appears at an early stage of the proceedings does not prevent the judge from deciding the case in a fair and evenhanded manner later, when additional facts become known”
- holding that a defendant has an “absolute right to withdraw the plea if the judge later determines that the sentence must exceed the preliminary evaluation.”
Written by the judges who cited it.
The opinion
*287 Boyle, J.
(concurring). Because I do not believe that the "potential” coercive effect on the defendant, the function of the trial judge as a neutral arbitrator, or the public perception of the judge as an impartial dispenser of justice are offended by the judge’s initiation of sentence discussion, I would authorize the parties or the court to initiate sentence discussion at pretrial, provided that the substance of all discussions is placed on the record in defendant’s presence and in open court. In my view, the integrity of the institution and the policy choices of the public are enhanced by maximizing the truth of the sentencing process. Since the interests of the prosecution, the victim, and the defendant are all protected in the sentencing process, I can see no reason to deprive inexperienced counsel, whether prosecutors or defense lawyers, of the benefit of judge-initiated discussion.
The lead opinion observes that the "coercive potential of judicial involvement is obvious, and stems from the overwhelmingly advantageous bargaining position of the judge.” Ante, p 281. To be sure, a judge should not state or imply alternative sentencing possibilities on the basis of the defendant’s exercise of the defendant’s right to trial by jury or by the court. The reality is, however, that whether the judge initiates discussions, the parties do so, or no discussions are held, the overwhelming advantageous position of the judge is a constant factor in the process. So, too, is a defense counsel’s effort to infer the sentencing possibilities that will be most beneficial to the client. Absent any implication from the judge, a diligent defense counsel may very well conclude that the exposure of the client and the details of the events during a trial *288 will inevitably result in a greater sentence. These are the same considerations that drive settlements in civil cases, and the realistic assessment of alternative outcomes is in many instances the most effective lawyering that can be offered to the client.
As long as judges exercise the authority given today, with responsible attention to a client’s desire for a trial, the client and the attorney can only be benefited by the judge’s assessment of sentencing range.
The public’s perception of the process is a different and equally delicate matter. However, the concern expressed in People v Killebrew, 416 Mich 189 ; 330 NW2d 834 (1982), has to some extent been addressed by the constitutional protection of victims’ rights, Const 1963, art 1, § 24, which insures that the sentencing process is not a closed arrangement involving simply the prosecutor and the court, defense counsel and the client.
The Court’s opinion today does not obligate any judge to become involved in the plea bargaining process. It simply authorizes involvement, on the conditions set forth, if the judge’s personal philosophy regarding the propriety of such involvement is not offended.
A judge who chooses not to become involved has no political responsibility for a bargained sentence and that is a wholly appropriate position to take. Where, however, a judge is willing to assume that responsibility, I can think of no reason why that truth should not be communicated to the representatives of the people and the defendant.
Levin, J., concurred with Boyle, J.