In today’s article about Obama’s new Gitmo closure endgame of trying to drive down the number of detainees who would be brought to a replacement wartime prison on domestic soil, I mentioned that some lawyers for detainees (including Abu Zubaydah) want to strike plea deals with the government – but, for several reasons, only in the Article III civilian court system, not the military commissions system.
Because Congress has banned bringing detainees into the United States, this raises the question of whether a federal judge would be willing to take a plea and impose a sentence by remote video link. This was too in-the-weeds for a newspaper article, but it is an interesting legal issue. Someone shared with me some preliminary research about why it is murky, which I summarize below.
It turns out that in 2002, the Federal Rules of Criminal Procedure were amended to explicitly permit doing initial appearance hearings (Rule 5f) and arraignments (Rule 10c) by remote video conference, while the rules about plea hearings (Rule 11) and sentencing hearings (Rule 32) are silent on this issue. However, a rule on the defendant’s presence (Rule 43) states that unless Rule 5, 10, or 43 provide otherwise, a defendant “must be present” at stages of trial, including “the plea” and “sentencing.” Basically, the question is whether that is a right, which a defendant may choose to waive, or a requirement, which he cannot waive.
On occasion, prosecutors strike a precooked deal with someone who hasn’t been arrested yet, and who does the whole shebang – presentment to guilty plea – in one hearing, as would be the case with a Gitmo detainee deal. And there are a few precedents for pleas being taken by remote video link, without being overturned by an appeals court. For example:
- U.S. v. LIRIANO-BLANCO, 510 F.3d 168, 169 (2d Cir. 2007)
- discussing, without objection, how the district court judge had taken the plea in a videoconference hearing while the judge was in Binghamton, New York, and the defendant, defense lawyer, and prosecutor were in Albany
- UNITED STATES v. HARRISON, 48 F.Supp.3d 381 (N.D.N.Y. 2014)
- “On April 12, 2013, defendant entered into a written plea agreement with the Government, and on the same day appeared via video conference to enter a plea of guilty. Defendant waived his right to appear in person, and was sworn prior to entering his plea.”
- UNITED STATES v. MELGOZA, 248 F. Supp. 2d 691 (S.D. Ohio 2003)
- Rejecting two defendants’ request to plead guilty by remote videoconference as a matter of convenience in light of Rule 43, but also noting that the same court, “on one occasion, permitted a Defendant to enter a plea of guilty, by video conference, upon his consent. In that situation, the Defendant’s physical condition, as confirmed by his treating physicians, was such that he not only could not travel to Ohio from his home in Atlanta, but that he would never be able to do so.
I missed an important thing: in 2011, Rule 43 was amended to say a defendant need not be present for a “misdemeanor offense” in which the “offense is punishable by fine or by imprisonment for not more than one year, or both, and with the defendant’s written consent, the court permits arraignment, plea, trial, and sentencing to occur by video teleconferencing or in the defendant’s absence.”
The existence of this explicit exception for certain misdemeanor cases arguably implies that the rule is no exceptions for felony cases. (If so, this would be a true “exception that proves the rule,” that frequently incorrectly invoked concept.)
Here’s what the committee notes said about that amendment:
Committee Notes on Rules—2011 Amendment
Subdivision (b). This rule currently allows proceedings in a misdemeanor case to be conducted in the defendant’s absence with the defendant’s written consent and the court’s permission. The amendment allows participation through video teleconference as an alternative to appearing in person or not appearing. Participation by video teleconference is permitted only when the defendant has consented in writing and received the court’s permission.
The Committee reiterates the concerns expressed in the 2002 Committee Notes to Rules 5 and 10, when those rules were amended to permit video teleconferencing. The Committee recognized the intangible benefits and impact of requiring a defendant to appear before a federal judicial officer in a federal courtroom, and what is lost when virtual presence is substituted for actual presence. These concerns are particularly heightened when a defendant is not present for the determination of guilt and sentencing. However, the Committee concluded that the use of video teleconferencing may be valuable in circumstances where the defendant would otherwise be unable to attend and the rule now authorizes proceedings in absentia.