In a case brought by Special Counsel David Wise, Hunter Biden was scheduled to stand trial for duty acts in federal judge in Los Angeles, California, on Thursday. The proceedings were quickly derailed just before jury selection began, however, when defense lawyer Abbe Lowell advised Judge Mark C. Scarsi that Biden wished to change his plea from” not guilty” to an” Alford plea” and thereby avoid a trial altogether.
An Alford appeal is one where the plaintiff denies guilt but agrees to accept sentence as if he had been found guilty by a judge or jury. In the case of North Carolina v. Alford, 400 U. S. 25 ( 1970 ), the Supreme Court confirmed the constitutionality of such a plea, giving rise to the moniker” Alford plea.” In an Alford appeal, the plaintiff does not say that he is innocent, but he accepts legitimate grief for the charged acts and delivers to being sentenced for them.
The Supreme Court argued that while the majority of guilty pleas typically consist of both an express admission of guilt and a cancellation of the test, the former aspect is not a legal prerequisite for the imposition of a criminal penalty. Even if a person who is unwilling or unable to admit his or her involvement in the crimes that constitute the crime, they may freely, deliberately, and understandingly assent to the intrusion of a jail sentence. Pointing out that sometimes just not going to trial may gain a defendant, the Court concluded that even pleas coupled with some assertion of innocence or of lesser culpability can still be legal, where” a defendant effectively concludes that his interests require entry of a guilty plea and the record before the judge contains solid evidence of true guilt”.
Alford requests can be very useful in resolving some legal cases without using up the resources available in a test, as the Supreme Court’s observations suggest. In most cases, the defendant did not personally think himself guilty, but the evidence may be sufficient to merit a jury’s verdict in any case. While an Alford plea is a useful machine for conserving the resources of the administrative structure — and the moment of victims and witnesses who would have to speak at trial — prosecutors and courts typically disfavor Alford pleas because they are perceived as more likely to end in defendants trying to remove their convictions later on, claiming innocence all along. Prosecution and judges limit the use of Alford pleas indefinitely to further prevent that outcome, but there are many procedural safeguards to prevent that outcome.
Alford pleases in Federal Court
Federal legal process permits a plaintiff to provide one of three sorts of pleas: not guilty, innocent, or offense contendere. An Alford appeal that was made during a state court trial is regarded by federal courts as a accused contendere plea under national Rule 11.
The lawyers debating with Judge Scarsi in the Hunter Biden situation whether he was required to accept an Alford plea or had discretion to reject it during the discussion before the judge following Lowell’s bomb news of a potential Alford appeal. Lowell argued that the judge had to accept the Alford plea. Any Alford plea was vehemently opposed by the prosecution. Leo Wise, the prosecution’s assistant special counsel, stated that the prosecution would” not under any circumstances consent to an Alford plea.” We think it’s an injustice”. He demanded that Judge Scarsi decline the plea and go to trial.
The use of Alford pleas is strongly discouraged by Department of Justice policy guidelines, which call for supervisory approval before a plea agreement can be based on an Alford plea. This is likely why Wise said the prosecution would not agree to an Alford plea” under any circumstances”. Biden’s attorney, however, did not come up with a plea deal with the government. Instead, he was proposing to enter a guilty plea to the indictment through an Alford plea. The DOJ’s approval policy is irrelevant in such circumstances. Instead, the court has the authority to accept or reject an Alford plea.
Indeed, the Supreme Court made note in the Alford decision that the court has the discretion to decide whether to grant a plea in this context.
Our holding does not mean that a trial judge must accept every constitutionally valid guilty plea merely because a defendant wishes so to plead. See Lynch v. Overholser, 369 U. S. at 369 U. S. 719 ( by implication ), but the States may grant such a right by statute or otherwise. In addition, the United States may prohibit any defendants who contest their innocence from entering guilty pleas.
Likewise, Rule 11 ( a ) ( 1 ) of the Federal Rules of Federal Criminal Procedure provides that a nolo contendere plea requires the court’s consent, not the prosecutor’s. The authors of this rule stated that the intention is to “make clear that a judge may reject a plea of nolo contendere and require the defendant to either plead not guilty or plead guilty in circumstances in which the judge is able to determine whether the defendant is actually guilty of the crime in which he is pleading guilty.”
Rule 11 ( a ) ( 3 ) further states that the court must take into account the parties ‘ views and the public interest in the effective administration of justice in order to guide the court’s decision-making. This part of the Rule was added by the Supreme Court itself in 1975.
In Hunter’s case, the prosecutor overstated the importance of his office in the outcome, trying to wrest control of the court by saying that the government would not “agree” to the Alford plea when it is not up to the government to decide whether or not to agree or not. The prosecution does not have a determining vote, but it does have a “view,” as the rule specifies. Conversely, the defense counsel tried to force the court to accept an Alford plea when in fact all of the law on this point reposes discretion in the judge, not a mandatory obligation. Alford pleas only appear in a small percentage of federal court cases nationwide, and they are incredibly uncommon in federal court. It’s not surprising that the attorneys were n’t completely conversant with the advantages of federal law relating to them.
The judge, for his part, stated that while he was aware of no case that would require him to accept an Alford plea, he was not, either, inclined to reject it out of hand. He suggested that the case be recessed, and the parties submit briefs on the legal question, which he would decide on the following morning. Instead, Hunter’s attorney requested a brief break so the parties could discuss matters outside the courtroom.
An Alford Plea on a Realistic Basis
In the midst of discussing whether an Alford plea could proceed at all, the prosecutor and judge also commented on the issue of whether a factual basis would be needed to support an Alford plea, with the judge opining that he could potentially accept an Alford plea if he were proffered a sufficient basis of factual evidence to support guilt.
An Alford plea in Biden’s case was labeled as “injustice” by the prosecution, evidently because such a plea would mean that Biden did not personally admit guilt and because the prosecution’s guilt evidence would not be presented in court because no trial would be held. Therefore, the prosecutor declared:” If we go forward today, we will read the entire indictment into the record as the evidence we will present at trial.”
That assertion constitutes an extremely lame threat, given that the indictment is already fully part of the record. The defense and the prosecution typically come to an agreement regarding the facts supporting the guilty plea in federal guilty plea hearings. The government must present to the court sufficient evidence to support the plea when there is disagreement over the facts, typically by the prosecutor drawing out the most significant facts from the indictment and presenting the case to the judge with a summary of the case. The defense typically makes no objections. In theory the prosecution can offer a factual basis to the court with any facts known to it via proffer or perhaps a short bit of testimony from the case agent whether in the indictment or not.
However, the lawyers and the judge’s discussion on this point neglected to mention that a nolo contendere plea does not require a factual basis before the court may accept it. That decision is also up to the court’s discretion. Rule 11 ( b ) ( 3 ) addresses this point and applies only to guilty pleas. Finding the Factual Basis for a Plea. The court must establish a factual basis before granting a guilty plea.
It is not an oversight that nolo contendere pleas were not included in the section of the rule requiring a factual basis. Nolo contendere pleas were specifically excluded, to the contrary. The Rules Committee put this into context in 1966, stating that” for a variety of reasons it is desirable in some cases to permit entry of judgment on a plea of nolo contendere without investigation into the factual justification.” The new third sentence is not, therefore, made applicable to pleas of nolo contendere”. In many cases, the charges alone can suffice in many cases if a defendant chooses to” not to fight” the charges.
Thus, Judge Scarsi would have been competent to accept ( or reject ) a request from Biden for an Alford plea with or without a factual justification beyond the facts disclosed in the case’s indictment.
Case Ultimately Resolves on a Standard Guilty Plea
After all the drama Lowell’s emergence of an Alford plea and the prosecution’s consternation, the case’s final outcome was pretty standard. The court released the parties after accepting Lowell’s suggestion for a brief break. They returned to the courtroom a while later having worked out an agreement for Biden to plead guilty — not nolo contendere — to all the charges in the indictment, with the prosecutor reading the indictment ( again ) into the record as the factual basis for the guilty plea. The court accepted the plea and ordered Biden to appear in court for a later sentencing hearing.
The defense probably anticipated this to be the way things would turn out right away. It could have proposed simply to plead to the indictment. Neither the prosecutor nor the judge could have really raised objections or concerns about that, as they did with the Alford plea proposal. Because the parties did not have a prepared statement of facts, Hunter Biden would be just as legally guilty and would be receiving the same sentence. It is likely that the prosecutor would have simply read the indictment into the record as he ended up doing. The only thing that would have been different is that Hunter Biden would not have actually and personally admitted guilt. The defense fought against that fence but fell short. However, the final result is n’t really that different. Hunter Biden did n’t want to go to trial, so, he did n’t.
McAdoo Gordon, Associates, P. C., founded in 2003, is led by Leslie McAdoo Gordon. She defends criminal defendants who are facing misdemeanor and/or felony charges as well as” white collar” criminal offenses in state and federal courts. She also represents contractors and individuals facing administrative sanctions, including revocation of security clearances and debarment from federal contracts. McAdoo Gordon graduated from Georgetown University Law Center in 1996, according to McAdoo Gordon. She has legal credentials to practice law in Maryland, Virginia, the District of Columbia, as well as in numerous federal appellate and trial courts, including the United States Supreme Court.
