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United States v. Stevenson

United States District Court, S.D. West Virginia, Charleston Division

April 12, 2018





         On June 26, 2017, I rejected the proffered plea agreement in United States v. Charles York Walker, Jr. after determining that it was not in the public interest.[1] On October 10, 2017, I rejected the proffered plea agreement in United States v. Antoine Dericus Wilmore after determining that it also was not in the public interest.[2] In both opinions, I stated that it is the court's function to prevent the transfer of criminal adjudications from the public arena to the prosecutor's office for the purpose of expediency at the price of confidence in and effectiveness of the criminal justice system.

         I have further reflected upon the near-total substitution of plea bargaining for the system of justice created by our nation's Founders, and I FIND that I should give great weight to the people's interest in participating in their criminal justice system when considering whether to accept or reject a proffered plea bargain in a particular case. I FIND that the scales of justice tip in favor of rejecting plea bargains unless I am presented with a counterbalance of case-specific factors sufficiently compelling to overcome the people's interest in participating in the criminal justice system.

         Therefore, in each case, I will consider the case-specific factors presented to me and weigh those competing factors against the people's participatory interest and then determine whether to accept or reject the plea bargain. Because I FIND that the presented justifications for the bargain in this case are insufficient to balance the people's interest in participating in the criminal justice system, I REJECT the proffered plea agreement.


         On March 21, 2017, a federal grand jury in Charleston, West Virginia returned a seven-count indictment against the defendant, Dana Stevenson.[3] Counts One, Two, Three, Four, and Five allege five separate sales of heroin by the defendant, two of which are alleged to have occurred within one thousand feet of Stonewall Jackson Middle School.[4] Count Six alleges that the defendant possessed with the intent to distribute crack cocaine, and Count Seven alleges that the defendant illegally possessed a firearm, having been convicted of a prior felony offense.[5]

         The government and the defendant entered into a plea agreement.[6] The defendant agreed to plead guilty to Count One of the Indictment, charging him with distributing heroin in violation of 21 U.S.C. § 841(a)(1).[7] In exchange, the government agreed to dismiss Counts Two, Three, Four, Five, Six, and Seven after the defendant has been convicted and sentenced on Count One.[8] The plea agreement also contains a Stipulation of Facts wherein the defendant admits to conduct comprising the offenses alleged in Counts Two through Seven of the Indictment.[9]

         On October 18, 2017, the defendant appeared before the Honorable Thomas E. Johnston, Chief Judge of the United States District Court for the Southern District of West Virginia, to enter a plea of guilty to Count One of the Indictment.[10] Judge Johnston accepted the defendant's guilty plea but deferred adjudicating the defendant guilty until sentencing.[11] On January 24, 2018, the case was reassigned from Judge Johnston to me.[12] On January 25, 2018, I directed the government to brief the Walker factors, [13] and I recommended the defendant do the same.[14] Both parties submitted those briefs.[15] I must now decide to accept or reject the plea agreement proffered in this case.


         Expanding on the Walker opinion in Wilmore, [16] I examined a variety of interests that the people have in the criminal jury trial. Foremost, I explained that because this is a government “of the people, by the people, for the people, ”[17] the people have an interest in participating in their criminal justice system.[18] I also observed that the criminal jury trial (1) plays an important role in maintaining the appropriate separation of powers between the three branches of government, [19] (2) creates an educated populace that respects the law and has faith in the criminal justice system, [20]and (3) provides an appropriate forum for the community to peacefully express its outrage at arbitrary government action as well as vicious criminal acts.[21]

         I will now explain why I have concluded that the people's participation in their criminal justice system is of paramount importance when I consider whether to accept or reject a plea bargain presented to me.

         a. Foundational Principles

         One of the fundamental principles underlying the Constitution was the people's intent to establish a participatory democracy respecting the natural rights of the people.[22] Natural rights, including the rights to life, liberty, the pursuit of happiness, property, religion, free speech, and free press, [23] were considered so important that they were regularly described as unalienable, [24] i.e., even acting truly voluntarily, an individual could not give them away.[25] It was the people's natural rights that the government was created to protect as well as to respect.

         In order to ensure that the government respected the people's natural rights to life and liberty, the people reserved a place for their participation in the criminal justice system.[26] Such participation was constitutionally established through the people's participation in the grand jury and in the criminal jury trial. Because the grand jury begins the criminal case, I will begin my discussion of the importance of the people's participation with the grand jury.

         b. The Importance of the Grand Jury

         The people created a bulwark[27] against tyranny and the arbitrary exercise of government power in the criminal justice system by establishing the grand jury as an integral part of criminal procedure. A prosecutor cannot compel an individual to answer accusations of serious, i.e., felony, criminal conduct other than through the grand jury indictment.[28] This is because, at the founding, liberty was considered to be such a preeminent value that where it is most seriously threatened, the people withheld from the government the power to compel an individual to answer accusations of a felony crime without their consent.[29] To accuse an individual of a felony crime, the prosecutor has to invoke the people's voice through the grand jury.[30]Thus, once the grand jury returns an indictment, the prosecutor is no longer entirely within the realm of his executive authority.[31]

         A common view of the grand jury is that it functions to merely check whether the prosecutor has probable cause to believe that an individual has committed the alleged crime.[32] At minimum, such a check protects everyone from inappropriate prosecutorial action, such as harassment or malice, because it prevents the prosecutor from initiating a criminal case where there is insufficient evidence to establish probable cause that the individual has committed the alleged crime.[33]

         Beyond an evidentiary gatekeeping function, however, the grand jury plays an additional role in checking government power.[34] One commentator has gone so far as to label the grand jury as a “quasi-legislative body” and “a grassroots political ‘fourth branch' of government.”[35] This comes from the grand jury's absolute discretion to indict or not indict.[36] “Where the grand jury truly adds value is through its ability to exercise robust discretion not to indict where probable cause nevertheless exists . . . .”[37] As another commentator details, colonial grand juries “did not refuse to indict because of a lack of proof that the accused had violated a criminal statute. Rather, they refused because they fundamentally disagreed with the government's decision to enforce these laws at all.”[38]

         The grand jury's structural check on the government reaches all three branches of government.[39] With respect to the judiciary, “jurisdiction cannot be exercised in felony and capital cases without the grand jury's consent.”[40] With respect to the executive, “[t]he grand jury may frustrate the [e]xecutive's efforts to prosecute an individual, ” and it “may exercise its discretion to send the [e]xecutive a message about its preferred allocation of law enforcement and prosecutorial resources.”[41] With respect to the legislature, the grand jury “determin[es] when conduct that Congress has proscribed will be subject to criminal prosecution.”[42] As such a powerful check on the government, the grand jury is meant to provide additional protection for the individual threatened by the government with a serious deprivation of his liberty.[43]

         Finally, with the near disappearance of the jury trial, [44] the grand jury is the last vestige of the voice of the people in their criminal justice system.[45] When the grand jury returns a true bill, it conveys to the prosecutor, and the general public, the will of the people that the accused be compelled to answer the accusation(s) of criminal conduct.[46] A true bill returned by the grand jury affirms the people's belief in the appropriateness of the law being applied and the importance of holding the individual accountable for breaking it.[47] The grand jury indictment functions as a “democratic force within the prosecutorial function.”[48]

         Viewing the grand jury as an evidentiary gatekeeper, a powerful structural check on the government, and the voice of the people as an accusatory body reveals the multi-faceted importance that the grand jury brings to the criminal justice system. These functions are rarely given consideration in plea bargaining. Prosecutors ignore the grand jury's voice by negotiating plea deals that trade away numerous indicted charges in exchange for the defendant's guilty plea to an agreed charge. The prosecutor usually holds onto these indicted charges until he is assured of the defendant's conviction and sentence on the agreed charge. The plea bargaining prosecutor fails to recognize the voice of the people reflected in the true bill returned by the grand jury and simply uses the indicted charges as leverage to obtain a guilty plea to the charge(s) that he deems appropriate.

         c. The Importance of the Criminal Jury Trial

         The second opportunity for the people's participation in their criminal justice system, which has been rendered virtually extinct by the bureaucracy that has taken over the system, is the criminal jury trial. There is substantial evidence that the criminal jury trial, viewed as the jury trial right, was considered exceptionally important by the Founders and during the first 150 years (or so) of the nation's history.

         James Madison described the jury trial right thus:

Trial by jury cannot be considered as a natural right, but a right resulting from a social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.[49]

         The Federal Farmer, echoing similar themes, described rights, including the jury trial right, thus:

[S]ome [rights] are natural and unalienable, of which even the people cannot deprive individuals: Some are constitutional or fundamental; these cannot be altered or abolished by the oridinary laws; but the people, by express acts, may alter or abolish them-These, such as the trial by jury, . . . individuals claim under the solemn compacts of the people, as constitutions . . . .[50]

         Although the jury trial right was not considered a natural right, in the act of constituting a new government, the people considered the jury trial right to be as important as those natural rights (e.g. life, liberty) that were explicitly reserved and protected from government power.

         Juries were so important to the Founders that the Constitution mentions the jury trial right twice. Article III states: “The Trial of all Crimes . . . shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed . . . .”[51] The Sixth Amendment states: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . .”[52]

         Reflecting the importance of the criminal jury trial, late nineteenth-century jurisprudence reveals that courts considered the jury trial right to be a collective right-a right of the people rather than merely a right of the accused. Justice Harlan, in tracing the American jury trial right to its historical roots in common law England and the Magna Carta, concluded “that when [the accused] committed the offense of grand larceny . . ., the supreme law of the land required that he should be tried by a jury composed of not less than twelve persons.”[53] In the same opinion, Justice Harlan observed that

it was not in the power of one accused of felony, by consent expressly given or by his silence, to authorize a jury of only eight persons to pass upon the question of his guilt. The law in force when this crime was committed did not permit any tribunal to deprive him of his liberty, except one constituted of a court and a jury of twelve persons.[54]

         A few years earlier, the Supreme Court had aptly articulated the rationale for preventing an accused from waiving what were considered fundamental aspects of the jury trial right:

We are of opinion that it was not within the power of the accused or his counsel to dispense with statutory requirement as to his personal presence at the trial. The argument to the contrary necessarily proceeds upon the ground that he alone is concerned as to the mode by which he may be deprived of his life or liberty, and that the chief object of the prosecution is to punish him for the crime charged. But this is a mistaken view as well of the relations which the accused holds to the public as of the end of human punishment. The natural life, says Blackstone, “cannot legally be disposed of or destroyed by an individual, neither by the person himself, nor by any other of his fellow creatures merely upon their own authority.” The public has an interest in his life and liberty. Neither can be lawfully taken except in the mode prescribed by law. That which the law makes essential in proceedings involving the deprivation of life or liberty cannot be dispensed with, or affected by the consent of the accused . . . .[55]

         Similarly, in 1909, the Sixth Circuit articulated a collective-right view of the jury trial right in Low v. United States.[56] The Sixth Circuit concluded that Article III required jury trials for criminal adjudications, i.e., adjudications that deprive an individual of his natural right to liberty, and that the Sixth Amendment articulates the kind of trial to which an accused was entitled.[57] Applying standard principles of statutory construction[58] to Article III supports the Sixth Circuit's view in Low that criminal jury trials are mandatory as a matter of constitutional law.[59] As one commentator claims, “[f]or Harlan and all previous Supreme Courts, published scholarship, and professional practice, Article III was the controlling stipulation when it came to jury trials.”[60]

         Many modern commentators have also interpreted the jury trial right as a collective right of the people. For example, Judge Stephanos Bibas concludes that “Article III is not phrased as a right belonging to the accused. It was meant to be a right of We the People to administer justice, not simply a right of defendants to waive (or be coerced into waiving).”[61] Laura Appleman interprets the jury trial right as a community right that “was heavily intertwined with a combined retributive and restorative understanding of punishment[, ] . . . a philosophy closely tied to the sovereign will of the people.”[62] Robert Schehr claims that “rights [including the jury trial right] are not solely the possession of an individual, they are cultural artifacts that must be preserved in order to firmly realize freedom.”[63]

         But, not far into the twentieth century, the Supreme Court changed course regarding the jury trial right. In Patton v. United States, Justice Sutherland, writing for the Court, concluded that “the Sixth Amendment usurped Article III because it is a more recent amendment to the Constitution.”[64] This decision marked an important change in how the Court viewed the jury trial right. Earlier jurisprudence generally viewed the jury trial right as something held by the public and something that protected the public's interest. The Patton decision began a shift toward viewing the jury trial right as something entirely within the control of the accused, meaning that the accused had the absolute discretion to determine whether to go to trial. This was partly in response to “a time of growing discontent with jury trials, attributable to increasing caseloads being forced upon prosecutors, defense attorneys, and the courts as a result of rising urban crime”[65] and the increasing complexity of criminal trials.[66]

Stephen Siegel contends that the most important event giving rise to the Patton decision was the triumphant arrival of classical liberalism. By viewing defendants as homo economicus, “free agents” able to buy and sell goods in the judicial marketplace, the Court adopted a “creedal shift [that] encouraged judges and commentators to interpret constitutional rights as individual privileges rather than collective rights.”[67]

         Viewing the jury trial right as an individual privilege of the accused, the Court readily recognized the right as a bargaining chip in negotiations with the prosecutor in the early 1970s. The first case to explicitly legitimize the notion of adjudicating criminal cases through a bargaining process between the prosecutor and the defendant came in Brady v. United States. There, the Court noted that “[i]t is this mutuality of advantage that perhaps explains the fact that at present well over three-fourths of the criminal convictions in this country rest on pleas of guilty.”[68] An appeal to the concept of “mutuality of advantage” reduces criminal adjudication to an economic transaction between marketplace actors.

         Just one year after Brady, the Court explicitly endorsed plea bargaining in Santobello v. New York.[69] There, the Court concluded that “[t]he disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called ‘plea bargaining, ' is an essential component of the administration of justice. Properly administered, it is to be encouraged.”[70] Most recently, “the [C]ourt [has] recognized for the first time that ...

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