AnticipatoryRepudiationofCooperativePleaAgreements_IsitGood.ppt
Anticipatory Repudiation of Cooperative Plea Agreements:Is it Good Contract Law?Is Contract Law the Correct Model?Professor Keith A.RowleyWilliam S.Boyd School of Law,UNLVFeb.25,2008Part OneA Brief Review of Relevant Contract PrinciplesUnilateral vs.Bilateral ContractUnilateral Contract:A contract in which X makes a promise to which she will be bound when Y accepts by performance.Bilateral Contract:A contract in which X makes a promise to which she will be bound when Y accepts by making a promise in return.Contractual DutiesA valid bilateral contract between X and Y obligates X to:perform as and when promised;andrefrain from repudiating prior to the time his performance is dueAnticipatory RepudiationElements:a definite and unconditionalmanifestationof Xs intent not to perform,or inability to perform,as promisedcommunicated to Ybefore Xs performance is dueExceptionsAs a general rule,X may not anticipatorily repudiate:a unilateral contract obligating only X to perform in the future,ora bilateral contract that has been fully performed by Y(effectively transforming it into a unilateral contract)Ys OptionsFaced with Xs repudiation,Y may suspend her own performance and:do nothing until Xs performance is due(subject to Ys duty to mitigate);seek assurances from X that he will perform when and as required;cancel the contract;orsue X immediately for breachRisk Analysis Ys Optionsdo nothingseek assurancescancelsuePossible Consequencesallows X to retractallows X to bind Y by giving assurancesallows X to sue Y for breach if Ys acts were unwarrantedPart TwoAre Plea Agreements Contracts?Plea Agreements as ContractsCourts routinely treat plea agreements as enforceable contracts,obligating both the defendant and the state to perform as promised.“Bargained For”ConsiderationCourts treat the states promise of a reduced sentence or immunity as consideration to support the defendants promise to testify or otherwise assist the prosecution,and vice versa.Remedies for BreachIf the state breaches,the defendant maywithdraw his plea;insist on the agreed penalty;orask the judge(or appellate court)to modify the agreed penaltyIf the defendant breaches,the state maywithdraw the plea agreement andseek a stiffer penalty than agreed,often based on more serious charges(subject to limitations)Part ThreeAnticipatory Repudiation of Plea AgreementsPrincipal CasesRicketts v.Adamson,483 U.S.1(1987)U.S.v.Ataya,864 F.2d 1324(7th Cir.1988)U.S.v.Hon,17 F.3d 21(2d Cir.1994)Hentz v.Hargett,71 F.3d 1169(5th Cir.1996)But see U.S.v.Casteneda,162 F.3d 832(5th Cir.1998)Ricketts v.Adamson(1987)Adamson was one of three persons tried for the first-degree murder of journalist Donald Bolles.Shortly after his trial began,Adamson agreed to plead guilty to second-degree murder and testify against his co-defendants,both of whom were convicted.After the Arizona SCT reversed,the prosecutor asked Adamson to testify again.Adamson told the prosecutor that he thought he had already fulfilled his bargain.Without asking the TC to rule,the prosecutor rescinded the plea agreement and charged,tried,and convicted Adamson of first-degree murder.U.S.v.Ataya(7th Cir.1988)Ataya and Syammach were arrested for counterfeiting.Prior to trial,Ataya agreed to plead guilty to the least serious charges in exchange for his testimony against Syammach,who was convicted.While sentencing was pending the possibility arose that the government would have to retry Syammach.Ataya refused,then agreed,then refused,then agreed,then refused to testify against Syammach in the retrial.The prosecutor reindicted Ataya on the previously-dismissed charge,but the TC granted Atayas motion to dismiss the indictment.The government appealed and the 7th Circuit affirmed.U.S.v.Hon(2d Cir.1994)Hon and Tse were arrested for drug trafficking.Hon agreed to plead guilty to the lesser of the two charges and“cooperate fully”with the government,including testifying at trial.At Tses trial,Hon testified outside the jurys presence that he was coerced into making the plea agreement.Hon equivocated whether he would testify against Tse.After the TJ ordered Hon to testify under immunity,Hons attorney told the government Hon would testify;however,the prosecutor said that Hon had breached and that the government would not honor its promise to recommend a downward departure.Hentz v.Hargett(5th Cir.1996)Hentz agreed to arrange the murder of his girlfriends husband.When he,his girlfriend(Williamson),and the gunman(Harden)were arrested and indicted for capital murder,Hentz agreed to plead guilty to reduced charges and to testify at Hardens and Williamsons trials.Hentz testified against Harden,but Harden was acquitted.When faced with the prospect of sending his girlfriend to prison or the death chamber,Hentz told the prosecutor that he would not testify against Williamson in a manner consistent with his promised testimony.Key QuestionsWhat kind of contract is a plea agreement?How definite and unconditional must the defendants words or deeds be?What if the defendant acts in good faith based on his understanding of his obligations under the agreement?When is the defendants performance due?Who gets to decide whether the defendant has repudiated?Are Plea Agreements Bilateral?Only bilateral contracts may be anticipatorily repudiated.Alper(NYU 97)posits that plea agreements are unilateral contracts because the state is bargaining for the defendants plea,not the defendants promise to plea.Alpers analysis overlooks the testimonial component-the state is also bargaining for the defendants promise to testify.Manifesting IntentExamples of conduct that courts have found sufficient to constitute a repudiation:refusing to testify at retrial,based on a good faith belief that the defendant had satisfied his duty to testify(Ricketts and Ataya)Manifesting IntentExamples of conduct that courts have found sufficient to constitute a repudiation:equivocating whether the defendant would testify after learning that he had been“tricked”or coerced into a plea(Hon)informing the prosecutor that the defendant would testify differently than previously discussed(Hentz)“Good Faith”DisagreementEarly SCT anticipatory repudiation cases(Viglas and Mobley)say“no”Subsequent non-SCT cases and many commentators say good faith is irrelevantRicketts v.Adamson(1987)Dissent(Blackmun):no repudiationMajority(White):good faith is irrelevant to the question of breachWho Shall Judge?Most courts rely on prosecutorial discretionRisk of prosecutorial bias vs.cost of judicial determination7th Cir.:the defendant is entitled to a ruling before the state may void the agreement(Ataya)Time Performance is DueHas a defendant fully performed after he has testified,pleaded guilty,been sentenced,and begun to serve his term?Has the state fully performed at that point?If so,no anticipatory repudiation in retrial cases like RickettsAttempted RetractionSuppose the defendant decides to testify as promised prior to the time he is obligated to do so.At what point does the defendant lose the right to retract?What constitutes a material change in position by the prosecution?Working Within the Construct“Repudiations”in Ricketts and Ataya do not appear to be“definite and unconditional”If plea agreements are unilateral,they cant be anticipatorily repudiatedIn retrial cases,hasnt the State fully performed?If so,the defendant cant anticipatorily repudiateWhy not obligate the State to seek adequate assurances or judicial interpretation?Part FourIs Contract Law the Correct Model?While plea bargain law is“heavily freighted with.contract law analogies,.The existence of a constitutional right in the defendant to be treated with fairness throughout the process.presages inevitably the question of the extent to which contract law may be drawn upon to define the limits of this constitutional right.”Cooper v.U.S.,594 F.2d 12,16(4th Cir.1979).Commercial Contractsvs.Plea Agreements Relatively equal(or,at least,not institu-tionally unequal)bargaining powerInstitutionally unequal bargaining powerSuperior investigative resourcesCriminal sanctionsDefendants own counsel is effectively an agent of the StateCommercial Contractsvs.Plea Agreements“Good faith”performance and enforcementAdversarial discoveryMonetary damagesDuty to mitigateDue ProcessState allowed to use information given by Defendant Penal sanctions?
