Should a Trial Judge Participate In a Plea Bargain Agreement Discussions ?

In People v. Cobbs, 443 Mich. 276, 505 N.W.2d 208 (Mich. 1993), the Michigan Supreme Court modified its prior rule, which had prohibited judicial participation in plea bargaining, to permit the judge, at his or her discretion--but only in response to the request of a party, and not on the judge's own initiative--to state on the record the length of sentence which, on the basis of the information then available to the judge, appears to be appropriate for the charged offense. In thus modifying Michigan's judicial participation rule, the Cobbs court stressed that "the judge's final sentencing decision must await receipt of all the necessary information [such as victim input and additional prosecutorial information]" and that "a decision not to sentence a defendant in conformance with a preliminary evaluation is not an automatic basis for recusal." 505 N.W.2d at 212-13. See Ex parte Spicuzza, 903 S.W.2d 381, 384 (Tex. App. 1995)(observing that, "although Texas trial judges are not expressly prohibited by law from participating in a plea bargaining session, the Court of Criminal Appeals has suggested that 'a trial judge should not participate in any plea bargain agreement discussions until an agreement has been reached between the prosecutor and the defendant'") See State v. Hoff, 814 P.2d 1119 (Utah 1991)(observing that, although a harmless error standard applies to an appellate court's review of the trial court's procedure in accepting a guilty plea, pursuant to State v. Gibbons, 740 P.2d 1309 (Utah 1987), trial courts must still strictly comply with the requirements of Rule 11(5), which is closely patterned after Rule 11 of the Federal Rules of Criminal Procedure). See W. Va. R. Crim. P. 11(e)(providing that the court shall not participate in any plea bargaining discussions). See In re Amendment of Rules of Civil & Criminal Procedure:, 128 Wis. 2d 422, 383 N.W.2d 496, 498 (1986) (determining--after first referring proposed modification of rule of criminal procedure governing plea agreements to Judicial Conference of Wisconsin, and conducting survey of Wisconsin trial judges with respect to their experience with plea agreements and their views regarding the proposed rule--that proposed modification to rules of civil and criminal procedure should be rejected on the basis of established norm that "[a] trial judge should not participate in plea bargaining").