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| Dominick Gerace |
On Feb. 4, McMichael — along with his father, who had been offered a similar plea deal — elected to proceed to trial rather than work out an alternative plea agreement with prosecutors.
While some media outlets have characterized U.S. District Judge Lisa Godbey Wood's rejection of the McMichael plea agreement as an unusual decision to side with Arbery's family over prosecutors, her decision was not particularly surprising and is not so easily explained.
McMichael and federal prosecutors entered into a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C). The rule allows parties to come to a formal consensus on an appropriate sentence in a plea agreement
Importantly, the rule goes on to make clear that such an agreement between the parties is binding on the court once the court accepts the plea agreement.
The court, however, need not accept the agreement. Rule 11 vests in the judge the authority to accept it, reject it or defer the decision until receipt of a pre-sentence report.
The McMichael (c)(1)(C) agreement called for a 30-year federal sentence, to run concurrent with McMichael's life sentence in the state murder case.
The plea agreement also included a provision allowing McMichael to serve his federal sentence first, in a federal facility, before being transferred to a state facility to serve the remainder of his state sentence.
During the plea hearing, Arbery's family members opposed the plea agreement, primarily objecting to the provision allowing McMichael to first serve time in federal prison. The family considered this an unreasonable accommodation, viewing federal prison as a more comfortable environment in which to serve time than a Georgia state prison.
After hearing from Arbery's family, Judge Wood rejected the plea agreement, effectively refusing to be bound by its sentencing terms.
Although noteworthy because of the high profile of the case, the judge's decision to reject the McMichael plea agreement is not extraordinary. Rule 11(c)(1)(C) agreements are somewhat controversial, and their use and treatment varies from federal district to federal district — and from individual judge to judge.
Some federal judges will not consider, much less accept, (c)(1)(C) plea agreements, and such agreements are rarely, if ever, used in some districts.
Other judges regularly accept (c)(1)(C) agreements, and consequently, the agreements are used frequently in districts where those judges sit.
Further, many judges who do consider (c)(1)(C) agreements scrutinize the agreements heavily, and will reject a (c)(1)(C) agreement when they view it as too harsh, too lenient, or as unacceptably limiting their sentencing discretion.
How any given judge views (c)(1)(C) plea agreements is likely related to how that judge views the respective roles of the executive and the judiciary in federal prosecutions.
Prosecutors, charged with enforcing the law, wade into the function of the judiciary when negotiating and presenting (c)(1)(C) agreements to judges.
Prosecutors have long engaged in the practice of recommending sentences to judges, but (c)(1)(C) agreements go beyond a recommendation, seeking to bind the judge to a sentencing outcome.
Because sentencing is a traditional function of judges, many judges consider (c)(1)(C) agreements to be an improper encroachment by the executive into a judicial function.
On the other hand, federal judges who remain open to (c)(1)(C) agreements see value in allowing the parties to fashion an outcome satisfactory to all, and view (c)(1)(C) agreements as an efficient way to resolve cases.
Indeed, (c)(1)(C) agreements often inure to the benefit of defendants, who value and desire the certainty of knowing what sentence they will receive when they agree to plead guilty.
Judges who will accept (c)(1)(C) agreements are willing to allow some encroachment by the prosecutor into the judicial sentencing function to serve these interests, knowing that Rule 11 provides a backstop if the prosecutor encroaches too far.
In the Arbery case, the prosecutors and McMichael presented a (c)(1)(C) agreement to the judge, indicating that the judge likely is open to considering such agreements as a general matter. In rejecting the agreement, Judge Wood simply decided that she was not willing to be bound by its sentencing terms.
At this point, that decision cannot be construed as a total rebuke of the deal that prosecutors made with McMichael.
Rather, Judge Wood's decision indicates only that she wishes to retain discretion in fashioning all aspects of the sentence — from its length to where it may be served. And the decision to retain discretion is not unusual or surprising as a matter of federal practice or within the context of the case.
After all, the McMichael (c)(1)(C) agreement represents the view of only the prosecutors and the defendant as to what constitutes a just sentencing outcome. A third party, Arbery's family, has a right under federal law to be heard on that issue, and that right is critical to the proper administration of justice.
By giving judges the authority to reject (c)(1)(C) agreements, Rule 11's backstop helps protect the victim's right to be heard.
It is not yet clear whether the judge in the Arbery federal hate crimes case will ultimately agree or disagree with Arbery's family or the prosecutors regarding the correct sentence for McMichael. Barring an acquittal at trial, time will tell what punishment Judge Wood considers appropriate.
What is clear is that the judge intends to afford all parties, including Arbery's family, a complete opportunity to be heard before making her decision, and that she has exercised her authority under Rule 11 to facilitate this.
Dominick S. Gerace II is a partner at Taft Stettinius & Hollister LLP and a former federal prosecutor.
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