Procedural Fairness For Courts and Judges  

Justice Michael Donnelly of the Ohio Supreme Court served for several years as a trial judge in Cleveland. During his time on the trial bench, he implemented a pretty novel practice – he required all plea discussions with the court to be on the record. He recently published an article on this practice, which I commend to your reading.

But let’s think about this for a minute from the procedural fairness perspective. Justice Donnelly says that the genesis behind his practice was that he began to question why all of the backroom discussions between the prosecutor, defense counsel, and the judge were happening.  After all, the two most important people that would be affected by the plea and sentence – the defendant and the victim – were excluded.  But critical discussions were happening behind closed doors as both lawyers tried to size the judge up on sentencing and lobby him on the eventual result.

Justice Donnelly concluded that he needed to shine a spotlight on this practice, and he implemented a rule that all plea discussions with the court had to occur on the record. What was the result (aside, maybe, from some grumbling by attorneys that liked the old way of doing business)? In Justice Donnelly’s view, this clarified the plea and sentencing process by making sure everyone was on the same page and forcing the parties to be upfront about their positions.  It helped bring sentencing considerations out into the open prior to the plea, and gave the defendant a first-hand perspective on the judge’s reactions (rather than a filtered one from his lawyer).

I’m not aware of too many trial judges who have implemented Justice Donnelly’s practice, but would love to hear of your experiences if you have (or even if you’ve considered it). To me, forcing discussions with the court about plea and sentencing into the open helps ensure that the defendant (and victim) is better informed and better appreciates the consequences of the plea. It’s also probably easier for the defendant to follow than the somewhat mechanized plea colloquies that occur in courts across the country on a daily basis. As a bonus, this also cuts down on the potential for reversible error! — Pierre Bergeron