MADISON - ST. CLAIR RECORD

Former St. Clair County judge Michael Cook faces what few have faced, criminal trial before a judge who found a plea agreement too lenient.

Cook will stand trial on heroin possession charges if he can’t bargain a sentence longer than 18 months and obtain approval from U.S. District Judge Joe McDade of Peoria.

McDade, a senior judge who took Cook’s case after Southern District judges recused themselves, rejected an 18 month sentence on Feb. 26.

He set a sentencing hearing for March 28, and asked for notice of a new plea agreement by March 19.

Neither Cook nor U.S. Attorney Stephen Wigginton knows what sentence would satisfy McDade, because judges cannot involve themselves in plea negotiations.

Critics of plea agreements worry that judges approve them too easily, but some judges surprise the critics.

Los Angeles Superior Court judge Stephen Marcus rejected two agreements providing no time and 90 days for former Glendale mayor and embezzler John Drayman.

On March 12, after the second rejection, prosecutors announced that Drayman agreed to serve a year behind bars.

In January, judge Robert Gerety of Orange Superior Court in Chelsea, Vt., rejected 90 days for a man who fired three rifle shots into a moving car.

In February, judge Mary Hoak of Grand County, Colo., rejected a year for a man who caused a fatal crash while driving under the influence.

Hoak found that the agreement diminished the seriousness of the crime and sent a wrong message.

A review of court cases turned up no instance of a defendant suing a judge for rejecting a plea agreement.

A defendant once alleged vindictiveness against a judge for the sentence he imposed after rejecting an agreement and holding trial, but the claim failed.

An article in Harvard Law Review, in 2004, illuminated the peculiar nature of plea bargaining in drug crimes.

Harvard professor William Stuntz wrote, “In most cases, the point of threatening a harsh post trial sentence is to induce a guilty plea.”

“In drug cases, the government often has another goal: to get information,” Stuntz wrote.

“Something important follows from that goal: defendants who have the most information to sell get the biggest discount.

“In a system like ours that rewards snitches generously, some defendants will be punished very harshly – nominally for their crimes, but actually for not having the kind of information one gets only by working at high levels of criminal organizations.”

He wrote that federal criminal code probably covers more behavior than any state’s criminal code, with less political obligation and better funding.

“Which means the law that federal prosecutors make is much more likely to flow from the prosecutors’ preferences than from the voters’,” he wrote.

“Prosecutors are not like civil plaintiffs. They are not paid by the conviction, with bonuses for each additional month the defendant spends in prison.”

He wrote that when a sentence reaches the level a prosecutor prefers, adding time offers no benefit to the prosecutor.

“Indeed, prosecutors may actually value extra prison time negatively,” Stuntz wrote.

He wrote that “however prosecutors define their preferred sentence, there is no good reason to assume that their preference is always for the harshest sentence they can possibly get.”

In 2007, in DePaul Law Review, Vanderbilt University professor Nancy King wrote that courts have tolerated banishment, castration, and sterilization in plea bargains.

“Because offense definitions overlap, and no judge can force a prosecutor to charge any particular offense, mandatory sentences are routinely avoided by negotiation,” she wrote.

“With such a broad range of offenses and penalties to choose from, parties may first agree upon a sentence and then find the offense that fits.”

King called on judges to reject agreements that undercut important public interests.

She recommended “independent pre-sentence reports, prepared from adequately funded investigations and available to the judge prior to the approval of plea agreements.”

McDade proceeded the way King recommended.

He accepted Cook’s guilty plea in November, telling Cook he would not accept the plea agreement until he read a report from a probation officer.

McDade signaled trouble for the agreement in January, by ordering a supplemental report on the effect of Cook’s misconduct on public respect for the judiciary.