The overwhelming majority of criminal cases end in plea bargains, and with good reason. Burgeoning caseloads overwhelm courts and prosecutors who can’t take on more trials, while plea deals offer guaranteed convictions. And defendants concerned about their chances at trial are often willing to plead in exchange for a reduced sentence. The plea agreement, which is a contract between the prosecution and the defendant, is a critical tool in the criminal justice system. But, just like other contracts, it isn’t always ironclad.
Now and then, criminal defendants ask appeals courts to overturn the pleas they entered in the trial court. Appellate courts will sometimes send a case back with directions to allow the defendant to withdraw a guilty plea, but they first require a showing of “good cause.” This means that there must be a good reason to withdraw a guilty plea. There is good cause, for example, when a defendant pleads guilty to a charge based on the advice of an ill-prepared or unqualified attorney, and can show that a better result than the negotiated deal was available. (See Ineffective Representation in Plea Bargains and Withdrawing a Guilty Plea.) But sometimes a change in the law, rather than newly discovered evidence or proof that a lawyer was deficient, will dissolve a plea deal.
It’s quite rare for appellate courts to allow defendants to withdraw guilty pleas based on some kind of error at the trial level. It’s even more unusual for them to overturn a plea agreement based on nothing more than a change in law. When this happens, the effects can be widespread. If an appellate court such as the U.S. Supreme Court redefines a crime in a way that benefits defendants, the redefinition will usually be applied retroactively. The potential fall-out is the undoing of scores of previous convictions.
One defendant who benefited from a change in law is Mark Avery, a disbarred California lawyer who, after having already spent four years in prison, asked a federal trial court to vacate his conviction. (United States v. Avery, 12-35209 (9th Cir. 2013).) Though the trial court refused, two years later a federal court of appeals found Avery innocent of a crime he pleaded guilty to. The innocence finding wasn’t due to any startling revelation, but rather the U.S. Supreme Court having redefined the offense after his conviction.
Prosecutors charged Avery, a trustee of two charitable trusts, with various crimes related to using trust money as his own. To resolve the criminal charges, he pleaded guilty to wire fraud, among other offenses. He specifically pleaded guilty to “honest services fraud,” which is a way wire fraud can be committed. In the plea deal he admitted to breaching his fiduciary duty, which means that he failed to act in the interest of the owners of the trusts.
Well after Avery was convicted, the U.S. Supreme Court decided that honest services fraud describes only bribes and kickbacks—it no longer applies to general breach of fiduciary duty, which is the behavior that Avery admitted in his plea deal. (The Court redefined honest services fraud in the case of Jeffrey Skilling, disgraced former Enron Corp. CEO, who because of the ruling eventually saw his sentence reduced from 24 to 14 years. (Skilling v. United States, 130 S. Ct. 2896 (2010).) Avery argued that, since he hadn’t taken part in any bribes or kickbacks, the Supreme Court decision meant that he was innocent of the form of wire fraud he pleaded guilty to.
Avery’s plea agreement mentioned both the honest-services version of wire fraud and general wire fraud. The government argued that this meant that Avery had originally pleaded guilty to both honest services fraud and general wire fraud, the latter of which he committed by stealing trust money. But the plea agreement never mentioned the kind of conduct that qualifies for general wire fraud—it only discussed breach of fiduciary duties. The court interpreted the plea agreement to say that Avery had committed wire fraud through honest services fraud. And since none of the actions described in the plea agreement constituted honest-services fraud, Avery was now innocent of the crime he pleaded guilty to.
Had the plea agreement contained language saying that Avery essentially stole money from the trusts, rather than mentioning a more vague breach of fiduciary duties, the appeals court likely would have left his wire fraud conviction in place. But the court said the plea agreement was a contract that the prosecution bargained for, and as such its words bound the parties. The prosecution couldn’t change the terms after the fact simply because the agreement had convicted the defendant of an offense that was no longer criminal.
The case of Mark Avery shows how courts’ interpretations of criminal offenses can affect plea agreements years down the road. It also reinforces the concept of plea deals as bargained-for contracts. Prosecutors will be confined to these contracts’ terms; if they overlook something, they can’t later come back and argue that it was really part of the bargain.