Plea agreements have eclipsed trials as the most common way to resolve criminal prosecutions. So prevalent are plea agreements that the ABA Criminal Justice Section, earlier this year, issued a “Plea Bargain Task Force Report,” noting that “trials have become rare legal artifacts in most U.S. jurisdictions—and even nonexistent in others. Plea bargaining has replaced the public jury trial. . . .” Given the outsized role that plea agreements play in the criminal justice system, protecting the integrity of the plea bargaining process is of utmost importance. The ABA Criminal Justice Section’s call to action in its “Plea Bargain Task Force Report” puts it best: “At every stage of the criminal process, there should be robust oversight by all actors in the criminal system to monitor the plea process for accuracy and integrity.
One threat to the plea bargaining process actually comes from the very institution charged with protecting defendants’ rights—the court system. In California, as in many other states, courts have the final say as to whether a plea agreement survives. California Penal Code § 1192.5(c) recognizes that a court’s initial acceptance of a plea is “not binding” and that a court can “withdraw its approval in light of further consideration” at the time of announcing its judgment or sentencing. But what happens when a court exercises this discretion in a way that fundamentally deprives defendants of their rights? What happens when a court rescinds its approval knowing full well that the defendant has detrimentally relied on the court’s assent? In California, at least, the answer is: Nothing happens; the breach goes unchecked.
A recent criminal matter out of the Los Angeles District Attorney’s Office offers a case study. People v. Salari et al. (Case No. BA488826) is a long-running white-collar prosecution charging three defendants with grand theft, bribery, and misappropriation of public funds related to an alleged scheme to improperly reduce property values on the tax assessment roll. After weeks of negotiation, the lead defendant, Ramin Salari, reached a plea agreement with the government; the agreement required him to proffer with prosecutors. On the morning of January 6, 2023, Mr. Salari and the government presented the plea agreement to the court. The parties stressed to the court that a central component of the deal was Mr. Salari’s proffer. After a protracted morning colloquy, the court overcame its initial hesitation and announced that it would be accepting the plea as long as Mr. Salari proffered with prosecutors. The court instructed the parties to return later that day after completing the proffer, at which point Mr. Salari could enter his plea.
In reliance on the court’s express assent, Mr. Salari waived his Fifth Amendment right by spending the rest of the morning in a debriefing session with prosecutors. The proffer lasted over two hours, during which Mr. Salari provided a detailed account of his role in the charged crimes, incriminating himself and others in the process. The parties returned to court in the afternoon, explained that the proffer had been completed, and represented that they were ready to proceed with the plea. To the parties’ shock, the judge announced that, over the lunch hour, he had experienced a change of heart. He would not be accepting the plea, after all.
Mr. Salari appealed to the California Court of Appeal, which upheld the trial court’s decision to renege in a terse order. Salari v. Superior Court of Los Angeles County (Case No. B325542). The California Supreme Court denied review. Salari v. Superior Court of Los Angeles County, Case No. S278356, 2023 Cal. LEXIS 785 (Feb. 15, 2023). Mr. Salari was left to defend his case against a prosecution team to which he had laid bare all of his conduct, creating an inequitable result that was the court’s doing.
If this exact scenario had occurred with the prosecutor rescinding the plea, as opposed to the court, the outcome would have been vastly different. California courts have unequivocally held that even though prosecutors may withdraw a plea offer before a defendant accepts it, they may not do so where the defendant “has detrimentally relied on the bargain.” People v. McClaurin, 137 Cal. App. 4th 241, 248 (2006). The classic example of detrimental reliance is when defendants “provide any information or other benefit to the government based on the plea bargain.” People v. Rhoden, 75 Cal. App. 4th 1346, 1355 (1999).
The case of In re Kenneth H. offers an excellent example of the detrimental reliance doctrine at work. There, the prosecutor agreed to dismiss a defendant’s case if the defendant passed a polygraph examination; when the defendant did pass, the prosecutor reneged. 80 Cal. App. 4th 143, 145 (2000). The court of appeal ordered the plea agreement executed and the case dismissed because the defendant had detrimentally relied “by waiving his Fifth Amendment right to remain silent and . . . tak[ing] the polygraph examination.” Id. at 148–49. Highlighting the weight of its decision, the court stressed that “the integrity of the office of the prosecutor is implicated because a ‘pledge of public faith’ occurs when the prosecution enters into an agreement with an accused.” Id. at 150.
The same “pledge of public faith” exists when it is the court that induces detrimental reliance. Much like the “integrity of the [] prosecutor” was implicated in In re Kenneth H., so too the integrity of the judiciary is implicated when a court explicitly blesses a plea agreement knowing the defendant will waive Fifth Amendment rights in reliance on the court’s assent. This is not to say that courts are bound to accept a plea any time a defendant has detrimentally relied, but when a court itself has induced the reliance, it should not be permitted to renege. There is also language in California case law suggesting that the doctrine of detrimental reliance should be extended to the judiciary. The California Supreme Court has held that “once a court withdraws its approval of a plea bargain … the court must restore the parties to the status quo ante.” People v. Stamps, 9 Cal. 5th 685, 707 (2020) (internal quotation marks and citations omitted). Other courts have similarly explained, “The court may withdraw its initial approval of the plea at the time of sentencing . . . ‘so long as the parties can be restored to their original positions.’” People v. Silva, 247 Cal. App. 4th 578, 587 (2016) (quoting People v. Kim, 193 Cal. App. 4th 1355, 1359 (2011)) (emphasis added). It is impossible to rewind the clock and return the defendant to their original position when a defendant has detrimentally relied. See Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (“[T]here is nothing a court can do to withdraw all knowledge or information that [government] agents may have acquired. . . .”).
The Salari case provided the California Supreme Court with an opportunity to clarify the law in this area and extend the detrimental reliance doctrine to courts considering plea agreements. Unfortunately that question still remains open, but there are compelling reasons to apply the detrimental reliance standard to judicial conduct. Even more than prosecutors, judges are seen as the authority figures in the courtroom, and it is entirely understandable that defendants would rely on the court’s assent in taking an irreversible step waiving their rights. Judges should, therefore, be held to the same standard as prosecutors when it comes to the weight of their words in the plea bargaining context. Extending the detrimental reliance doctrine to the judiciary would not undermine judges’ discretion to reject plea deals any more than it has undermined prosecutors’ autonomy in withdrawing from the plea deals they extend. Instead, extending the doctrine would put judges on notice that they must be scrupulous in the guarantees they make to defendants who are hanging on the court’s every word to decide their fate.
One potential criticism to this proposal is that a remedy already exists for defendants who detrimentally rely and proffer with the government. In California, a criminal defendant’s statements in the course of plea negotiations are inadmissible at trial. People v. Magana, 17 Cal. App. 4th 1371, 1376 (1993). This remedy, however, is not sufficient to restore defendants’ trust in the system or to ensure a fair trial after a judicial breach. Even if the defendants’ proffer statements are inadmissible, prosecutors can still use the information in those statements to inform their trial strategy, chip away at witness’s credibility, and generate additional leads.
The stakes of inaction on this issue could not be higher. The current state of the law in California is essentially as follows: After a trial court announces its approval of a plea agreement, a criminal defendant can perform 99% of their obligations under the negotiated plea agreement—including waiver of constitutional and due process rights—and on the eve of the entry of the guilty plea, the trial court has unfettered discretion to reverse course. This is fundamentally unfair.
