University of Colorado Law School Colorado Law Scholarly Commons Articles Colorado Law Faculty Scholarship 2017 "Make Him an Offer He Can't Refuse"-- Mezzanatto Waivers as Lynchpin of Prosecutorial Overreach Christopher B. Mueller University of Colorado Law School Follow this and additional works at: https://scholar.law.colorado.edu/articles Part of the Contracts Commons, Courts Commons, Criminal Procedure Commons, Evidence Commons, and the Supreme Court of the United States Commons Citation Information Christopher B. Mueller, "Make Him an Offer He Can't Refuse"-- Mezzanatto Waivers as Lynchpin of Prosecutorial Overreach, 82 MO. L. REV. 1023 (2017), available at https://scholar.law.colorado.edu/ articles/969. Copyright Statement Copyright protected. Use of materials from this collection beyond the exceptions provided for in the Fair Use and Educational Use clauses of the U.S. Copyright Law may violate federal law. Permission to publish or reproduce is required. This Article is brought to you for free and open access by the Colorado Law Faculty Scholarship at Colorado Law Scholarly Commons. It has been accepted for inclusion in Articles by an authorized administrator of Colorado Law Scholarly Commons. For more information, please contact [email protected]. “Make Him an Offer He Can’t Refuse” – Mezzanatto Waivers as Lynchpin of Prosecutorial Overreach Christopher B. Mueller* ABSTRACT Plea bargaining is the dominant means of disposing of criminal charges in the United States, in both state and federal courts. This administrative mechanism has become a system that is grossly abusive of individual rights, leading to many well-known maladies of the criminal justice system, which include overcharging, overincarceration, convictions on charges that would likely fail at trial, and even conviction of “factually innocent” persons. In- strumental in the abuses of plea bargaining is the so-called Mezzanatto waiv- er, which takes its name from a 1995 Supreme Court decision that approved the practice of getting defendants to agree that anything they say in negotia- tions with prosecutors can be admitted against them if a trial ensues, despite Evidence Rule 410, which provides that such statements are inadmissible. These waivers, which are largely overlooked in the vast literature that criti- cizes plea bargaining, are in fact lynchpins in a system that is horrifying to contemplate. These waivers mean that the very act of negotiation almost guarantees conviction of something, imposing one-sided risks on defendants that can only benefit prosecutors. They amount to a kind of palpable unfairness that the system tolerates. They not only contribute to the maladies described above, but they produce rulings (if a trial goes forward) that admit unreliable statements. There are many reasons why these waivers should be disap- proved, including policy arguments (they are unfair, produce bad results and unreliable statements) and arguments based on contract law, on Rule 410 itself, on a widely-recognized but seldom enforced “unitary” principle, and – finally – on the “Mezzanatto proviso” (a widely ignored term in the decision itself). *Henry S. Lindsley Professor of Law at University of Colorado School of Law (since 1985). I wish to extend my deep thanks to Al Alschuler, Fred Bloom, Justin De- sautels-Stein, Laird Kirkpatrick, Pierre Schlag, and Christopher Slobogin for reading and commenting on an earlier version of this manuscript. I also want to thank Colo- rado District Court Judge Dennis Hall for talking with me about Colorado practice in plea bargaining. Thanks also go to my colleagues at Colorado for attending a collo- quium to talk about this paper, particularly Brad Bernthal, William Boyd, Paul Cam- pos, Rick Collins, and Ahmed White, who talked to me separately with suggestions. Finally, I want to thank Abigail Williams and her staff at the Missouri Law Review for their hard work preparing this article for publication. 1024 MISSOURI LAW REVIEW [Vol. 82 This Article explores the origins and operation of Mezzanatto waivers, examines and expounds the reasons for disapproving them and taking a new direction, and offers a reply to standard arguments that prosecutors need them (they really do not and have other means to hold defendants to their bargains). CONTENTS I. INTRODUCTION II. HOW DID WE GET HERE? A. The Mezzanatto Case 1. The Holding 2. The Case Itself 3. The Mezzanatto Appeal; The Mezzanatto Proviso B. Plea Bargaining Waivers Expand III. DIFFERENT ROADS, SAME DESTINATION: THE WAIVER IN OPERATION A. Beginning Point – The Parties Talk B. End Point – No Deal, As Negotiations Fail C. End Point – Deal Reached; One Party or Another With- draws D. End Point – Deal Reached, but Court Rejects It E. End Point – Defendant Enters Plea, but Withdraws It IV. MEZZANATTO WAIVERS SHOULD BE UNLAWFUL A. They Make Plea Bargaining Unfair and Magnify Its Dys- functionality 1. Unfairness 2. Dysfunctionality B. They Produce Untrustworthy Statements C. They Are Unenforceable Contracts D. They Violate Rule 410 1. Rule 410 Regulates Plea Bargaining 2. Rule 410 Is Not a Default Principle V. THERE IS A BETTER WAY A. If Plea and Agreement Fail to Resolve Case, Waiver Should Be Inoperative B. Both Substantive and Impeaching Uses Should Be Blocked C. Both Proffer and Plea Waivers Should Be Invalid VI. CONCLUSION 2017] “MAKE HIM AN OFFER HE CAN'T REFUSE” 1025 I. INTRODUCTION It is inherently unfair for the government to engage in [plea bargaining], only to use it as a weapon against the defendant when negotiations fail. United States v. Ross, 493 F.2d 771, 775 (5th Cir. 1974) Everyone who saw The Godfather in theaters or on television remem- bers what Michael Corleone told Kay Adams in explaining how Michael’s father persuaded a Hollywood agent to release Johnny Fontane from an iron- clad contract. The agent agreed to release Fontane because he was led to understand that either his signature or his brains would be on the paper – that was the offer he couldn’t refuse. Federal prosecutors (and some state prosecutors) enjoy similar powers, allowing them to exert as much muscle over defendants as Vito Corleone (Michael’s father) exerted over the agent. Here is how it happens: Before sitting down to talk, the prosecutor asks the defendant (usually with his law- yer present) to sign a waiver as part of a proffer agreement, under which he promises to speak truthfully and agrees that everything he says can be offered in evidence against him if a trial should eventuate. What we have is often called a “proffer waiver” or “advance waiver” that is signed before the prose- cutor offers a plea agreement or even suggests that a plea agreement might be acceptable and before the defendant makes the statements covered by his waiver. If ensuing discussions fail to bear fruit, or if they lead to a plea agreement but one of the parties backs out (even if the defendant does so with the court’s permission after entering a plea), the waiver is usually enforceable anyway. Alternatively, the prosecutor and defendant (with counsel) sit down to talk, and the conversation leads to a plea agreement that includes a waiver, this time covering everything that the defendant has said in the conversations (and sometimes what he says thereafter too), and often stipulations of fact, allowing the use of all this material in evidence against him if a trial should eventuate. What we have here is often called a “plea bargain waiver,” ob- tained as part of a plea agreement. Perhaps it is an exaggeration to say that the cost of talking to the prose- cutor, or at least the cost of reaching a deal in this system, is that the defend- ant will certainly be convicted of something – but it is not much of an exag- geration. A defendant who wants a deal – and all of them do – knows he must incriminate himself in order to enter a plea. He must do so because a court will not accept a plea unless it is satisfied on the basis of statements by the defendant in court – plea “allocutions,” as they are called (the defendant is not subject to cross), that repeat what he told the prosecutor and show his guilt. The reason prosecutors insist on a waiver is to force the defendant to make a plea or to nail him to the plea that he agrees to make. Without the waiver, what the defendant says to the prosecutor would be excludable as 1026 MISSOURI LAW REVIEW [Vol. 82 plea bargaining statements under Rule 410 of the Federal Rules of Evidence.1 So the defendant signs a waiver and speaks his piece (or speaks his piece, then signs a waiver), knowing he is incriminating himself but hoping that he will get a good deal or that the one he has struck will prove good and win the court’s approval. If this system sounds unfair, there is a good reason: It is unfair, as the Ross case quoted at the beginning of this article recognized in 1974. Of course we cannot aspire to create “market conditions” in which the prosecutor and defense have “equal bargaining power.” The state (both federal and state governments) has a monopoly on police power, courts, and the prosecutorial function, and the risks to the defendant (incarceration or even death) are in- commensurable with the risks to the prosecutor (failing to represent the pub- lic interest adequately, or perhaps frustration of political ambitions or even loss of a job). But we can aspire to a system in which the state cannot merci- lessly exploit this imbalance in the extreme way that the waiver doctrine in- vites. And we can aspire to a system in which the mere act of trying to reach a compromise does not prejudice one of the two parties and in which the mechanism for determining guilt or innocence when bargaining fails is not corrupted by the bargaining itself.