SBM - State Bar of Michigan

JI-117

January 9, 1998

SYLLABUS

A judge may not sanction a plea bargain in a criminal case in which the prosecutor requires the defendant to pay a "costs of prosecution" fee to the prosecutor's office in return for a reduction or dismissal of the pending criminal offense.

References: MCJC 1,2 (A) & (C), JI-48, JI-55, JI-64, Vermont Opinion 87-16, In Re Merritt, 431 Mich 1211 (1988), Ethical Issues in Prosecution, National College of District Attorneys, Houston, Texas, 1988.

TEXT

A court has made inquiry whether the judges may legally and ethically approve plea bargains in a criminal case in which the prosecutor requires the defendant to pay "Costs of Prosecution" to the prosecutor's office in return for a reduction or dismissal of the pending criminal charge.

The prosecutor's policy is to assess costs of prosecution against defendants when charges are reduced or dropped through the plea bargaining process. The costs assessed are paid to the prosecutor's account and not the court. The rationale provided by the prosecutor is that the cost of police and prosecutor time along with court involvement averaged $250 per misdemeanor from first contact through investigation and charging. The prosecutor generally applies the fee for plea bargain to misdemeanor cases but has also charged a fee to some defendants for a reduction from a felony charge to a misdemeanor.

There is no issue that the prosecutor has the right and authority to both charge an offense and to plea bargain with a defendant. Further, there is no question that the court has the authority to accept or reject any offered plea bargain.

Thus, the issue presented is whether a sitting judge may legally and ethically "sanction" a plea bargain in a criminal case in which the prosecutor requires the defendant to pay "costs of prosecution" to the prosecutor's office in return for a reduction or dismissal of the pending criminal offense. The facts as presented do not state but it is implied that failure to pay the prosecutor's fee for the "costs of prosecution" would deny a defendant the possibility for a plea bargain. The issue of the legality of the prosecutor's policy will not be dealt with in this opinion, however, the ethical implications will be considered.

Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety and a judge should not use the prestige of office to advance the business interests of others. MCJC 2

In In Re Merritt, 431 Mich 1211 (1988) a judge was publicly censured for establishing a bank account ostensibly to assist indigent drug abusers, assessing fines against attorneys who appeared before the judge and depositing the moneys into the account. Citing to the Mich Const 1963, art 1997-28—page 2 6, sec. 30, MCR 9.104(4), and MCJC 1, 2A, and 3A(9), the Michigan Supreme Court found that the judge's conduct, whether well-intentioned or not, gave the appearance of using the power of judicial office to solicit moneys and constitutes misconduct in office clearly prejudicial to the administration of justice.

In JI-48 the Committee opined that it is ethically improper for a judge to dismiss cases, suspend sentences or otherwise give offenders preferential treatment on condition that the offender make contribution to specified charities. Underlying the prohibition against judicial solicitation is the notion that it is not ordinarily possible to solicit without raising the suspicion that the judge is using the power and prestige of judicial office to persuade or coerce others to contribute. If judges are forbidden to solicit for charity, clearly judges cannot direct contributions by requesting or requiring offenders to donate contributions in lieu of fine or jail time to charities designated by the judge.

In JI-55 the Committee indicated that the court in sentencing a criminal defendant could not require the defendant to pay money except as authorized by law. A sentencing program, no matter how laudable the goals, which uses the power of the judicial office to solicit moneys is conduct prejudicial to the administration of justice.

Again the Committee addressed the payment of money by defendants in JI-64. In that opinion the committee opined that MCJC 2C forbids a judge from allowing the prestige of the judicial office to be used for the private interests of another person or organization. MCJC 1 requires a judge to maintain the independence and impartiality of the judiciary, free from outside interests. The judge is allowed to require participation in educational or rehabilitative programs so long as no defendant is turned away from a program for inability to pay the entire fee. Further, the judge is limited in alternatives and cannot require the payment of money.

In the present instance the prosecutor is requiring the payment of a fee in exchange for a plea bargain, is collecting the funds independent of the court, and presenting the plea bargain to the court for its approval. If the court does not approve the plea bargain, the money is not paid to the prosecutor and the matter proceeds as charged. This practice raises several ethical issues not the least of which is that the judge is asked to condone the position that justice is for sale to those who have the resources to pay for a reduction in charges and detrimental to those who do not have sufficient assets to pay the prosecutor's assessment. This on its face is contrary to the MCJC 2(A) & (C) as the conduct would create in reasonable minds that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired. It would further reflect that the judge is using the prestige and power of his office to advance the business interests of the prosecutor's office.

The Vermont State Bar opined in its Ethics Opinion 87-16 that the Prosecutor was involved in a conflict of interest between the public interest he is obliged to represent and the private interests of civil litigants when requiring a criminal defendant to plead guilty as part of a plea bargain for the sole purpose of aiding a civil litigant. By analogy, it would appear that the prosecutor in this instance is also involved in a conflict of interest position in that the office of the prosecutor is gaining additional financial resources not authorized by law by requiring defendants to pay money in exchange for a plea bargain and a reduced sentence as a result of the plea bargain.

As noted in Ethical Issues in Prosecution, "The first, best, and most effective shield against injustice for an individual accused, or society in general, must be found not in the persons of defense counsel, trial judge, or appellate jurist, but in the integrity of the prosecutor . . . . The prosecutor does not represent the victim of a crime, the police, or any individual. Instead, the prosecutor represents society as a whole." (Pg. 36) The Prosecutor's Code of Professional Responsibility is violated if the prosecutor is involved with any conflict of interest, improper disposition of criminal charges, abuse of discretion in charging, and improper plea discussions. In the present instance from the facts presented, it appears that the prosecutor by extracting from defendants sums of money in exchange for plea bargains is involved in both conflict of interests in securing financial gain for his office and in improper plea discussions wherein similarly situated defendants are not afforded equal plea agreement opportunities irrespective of their financial situation.

As noted in Ethical Issues in Prosecution at page 76, "The judiciary has a unique opportunity to observe prosecutorial misconduct and to take remedial action. The trial judge has a responsibility to manage litigation and to insure that not only is justice done, but that it appears to be done. Control and supervision of the advocates appearing before the bench may not always be an easy task, but the court does have the responsibility to exercise its inherent authority."

It is essential that the public have absolute confidence in the integrity and impartiality of our system of criminal justice. This requires that public officials not only in fact properly discharge their responsibilities but also that they avoid, as much as possible, the appearance of impropriety.

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