Frank v. Blackburn

Decision Date17 November 1980
Docket NumberNo. 78-3452,78-3452
Citation646 F.2d 873
PartiesJimmy FRANK, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary, Respondent-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

J. Donice Alverson, New Orleans, La. (Court-appointed), for petitioner-appellant.

Robert Brinkman, Asst. Dist. Atty., Opelousas, La., for respondent-appellee.

Appeal from the United States District Court for the Western District of Louisiana.


SAM D. JOHNSON and THOMAS A. CLARK, Circuit Judges *.

FAY, Circuit Judge:

A Louisiana state court jury convicted of Jimmy Frank of armed robbery. A Louisiana state court judge sentenced him to thirty-three years in prison. In a petition for habeas corpus, 1 Frank attacked his conviction on the grounds that certain identification testimony was inadmissible and that the prosecutor's argument referred to Frank's failure to testify. He attacked the sentence on the ground that the trial judge impermissibly increased the term of confinement because Frank rejected a plea bargain offer and elected to stand trial. The federal trial court denied habeas corpus. A panel of this court reversed and remanded the case to the district court for dismissal upon resentencing by the state court, finding that Jimmy Frank was penalized by the state court because he exercised his constitutional right to stand trial. Frank v. Blackburn, 605 F.2d 910 (5th Cir. 1979). We decided to rehear the case en banc because of its potentially devastating impact upon the plea bargaining process. A majority of the en banc court now finds that no constitutional rights were violated in the conviction and sentencing of Jimmy Frank. The panel opinion is vacated, and the district court's denial of the writ is affirmed.

Although we are vacating the panel opinion in Frank v. Blackburn, we adopt the statement of the facts set forth therein. See 605 F.2d at 911-12. In addition, the en banc court adopts the discussions and holdings of the panel set forth in the "Suggestive Identification" and "Prosecutorial Comment" sections of the opinion. See 605 F.2d at 912-14. We emphasize, however, that we adopt no portion of the panel opinion pertaining to Jimmy Frank's sentence. We discuss and resolve that issue anew in the light of a thorough examination of the plea bargaining process.


Jimmy Frank contends that because he elected to stand trial rather than plea bargain, his prison sentence on conviction was increased in violation of the fourteenth amendment. Once before the trial and once during a recess in the prosecution's case, the trial judge conducted a plea bargaining session in his chambers. Both the prosecutor and defense counsel participated in these sessions. On both occasions the judge, in response to a request from defense counsel, personally stated that he would sentence Frank to a period of twenty years confinement in return for a plea of guilty. Frank rejected both offers, stood trial, and was convicted by the jury, whereupon the judge imposed a sentence of thirty-three years in prison. Jimmy Frank alleges that the twenty year sentence offered in exchange for a guilty plea was increased by thirteen years after conviction solely to punish him for standing trial. Jimmy Frank's allegations of judicial vindictiveness warrant further exploration of the record in the case. The validity of those allegations, however, can be better evaluated after careful consideration of the policies, procedures, and purposes underlying the plea bargaining process.


Plea bargaining is a process of negotiation in which the prosecutor, trial judge, or some other official in the criminal justice system, offers the defendant certain concessions in exchange for an admission of guilt. 2 That plea bargaining plays a dominant role in the American criminal justice system is evidenced by the statistics: roughly ninety percent of the criminal defendants convicted in state and federal courts plead guilty rather than exercise their right to stand trial before a court or jury. D. Newman, Conviction: The Determination of Guilt or Innocence Without Trial 3 (1966); Alschuler, Plea Bargaining and Its History, 79 Colum.L.Rev. 1, 1 (1979). Nevertheless, plea bargaining remains a controversial issue, provoking praise, criticism and extensive debate among legal scholars and practitioners. Judicial pronouncements on plea bargaining indicate that the courts are as sharply split as the commentators over the propriety of negotiating a guilty plea. While most courts have approved the use of plea bargaining, a number of judges have condemned it, maintaining that issues of guilt cannot be settled. See, e. g., Scott v. United States, 419 F.2d 264 (D.C.Cir.1969); Shelton v. United States, 242 F.2d 101 (5th Cir.), rev'd en banc, 246 F.2d 571 (5th Cir. 1957), rev'd per curiam, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958) (Judge Rives stating for the court in the first Shelton opinion that "(j)ustice and liberty are not the subjects of bargaining and barter." 242 F.2d at 113); J. Bond, Plea Bargaining and Guilty Pleas §§ 2.01-.04 (1978); Comment, The Influence of the Defendant's Plea on Judicial Determination of Sentence, 66 Yale L.J. 204 (1956) (discussing results of a questionnaire about guilty pleas sent to 240 federal judges).

The concessions offered may relate to the offense charged, the sentence to be imposed, or a variety of other circumstances. 3 The benefit offered by the defendant, however, is always the same: entry of a plea of guilty.

Notwithstanding the diversity of opinion on the subject, the Supreme Court has repeatedly expressed approval of the plea bargaining process. In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), the Court stated that "(t)he disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called 'plea bargaining,' is an essential component of the administration of justice. Properly administered, it is to be encouraged." 404 U.S. at 260, 92 S.Ct. at 498. The Santobello opinion took note of some of the practicalities of plea bargaining:

If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.

Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be

the rehabilitative prospects of the guilty when they are ultimately imprisoned.

404 U.S. at 260-61, 92 S.Ct. at 497-98. 4

Supreme Court approval of plea bargaining can be traced through a series of cases beginning in 1970. In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), petitioner pleaded guilty to a kidnapping charge to avoid the death penalty. After his conviction, he argued "that it violates the Fifth Amendment to influence or encourage a guilty plea by opportunity or promise of leniency and that a guilty plea is coerced and invalid if influenced by the fear of a possibly higher penalty for the crime charged if a conviction is obtained after the State is put to its proof." 397 U.S. at 750-51, 90 S.Ct. at 1469-70. The Court found Brady's argument unpersuasive.

We decline to hold that a guilty plea is compelled and invalid under the Fifth Amendment whenever motivated by the defendant's desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged.

Id. at 751, 90 S.Ct. at 1470; accord, Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970).

One year after Brady, the Court, in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), set forth some of the guidelines for fair plea bargaining. The defendant in that case, charged with gambling violations under state law, pleaded guilty after negotiations with the prosecutor, who agreed to make no sentence recommendation. Finding that the prosecutor had failed to uphold his part of the bargain, the Court noted the need for fairness in securing agreement between an accused and a prosecutor.

It is now clear, for example, that the accused pleading guilty must be counseled, absent a waiver. Moore v. Michigan, 355 U.S. 155 (78 S.Ct. 191, 2 L.Ed.2d 167) (1957). Fed.Rule Crim.Proc. 11, governing pleas in federal courts, now makes This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.

clear that the sentencing judge must develop, on the record, the factual basis for the plea, as, for example, by having the accused describe the conduct that gave rise to the charge. The plea must, of course, be voluntary and knowing and if it was induced by promises, the essence of those promises must in some way be made known. There is, of course, no absolute right to have a guilty...

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