The Courtroom Context of Plea Bargaining

Douglas Maynard
Department of Sociology
University of Wisconsin

Reprinted from Inside Plea Bargaining (Chapter Two) (1984)

In Garden City, misdemeanor plea bargaining is conducted in a busy public courtroom where, simultaneously, defendants enter pleas, defense attorneys talk with clients, and a host of other conversations and activities take place. On the surface, the courtroom appears disorganized. In fact, there is an underlying order to the many and diverse engagements.

Studies of complex organizations have largely neglected face-to-face interaction, even in "people processing" agencies like the court.⁽¹⁾ We have scant understanding of how officials conduct their everyday tasks in direct interaction with clients; conversely, we know little about the contribution that clients make to the structure of people-processing settings. How does a particular social order occur in a courtroom setting in which a variety of official and unofficial activities take place concurrently? Why do defendants contribute to the management of this order even though they tend to be disenchanted with its routines and results?

Persons who have studied plea bargaining seem to agree on two major points. First, bargaining dialogues remain hidden from the defendants under discussion, from victims, probation officers, judges (sometimes), other officers of the court, and the wider public--any of whom might be likely candidates to scrutinize the proceedings if it were possible (e.g., Alschuler, 1975; Davis, 1970; Newman, 1966). Second, in Grosman's (1969: 50) terms, "persons become objects and products which must be processed through the system." This is due to the "organizational imperative" to presume guilt and dispose of cases efficiently (Littrell, 1979: 153). These two notions converge in the succinct remarks of a public defender interviewed for the present research: "In plea bargaining, the client is in a sense the victim, he is being "done unto" in plea bargaining. The p.d. and d.a. go behind closed doors and decide his fate."

The upshot of these characterizations is that the courtroom context of plea bargaining is said to be a bureaucratic one wherein large numbers of cases, whose features are indistinguishable to the judge and other participants, are processed (e.g., Mileski, 1971: 481, 517-18; Rosett and Cressey, 1976:8).

The characterizations of plea bargaining as a hidden activity and defendants as objects in assembly-line process may be warranted, but they need explication in structural terms. The strategy here is to treat such characterizations as situated "accounts," meaning that they are embedded in a particular social organization (Bittner, 1974; Sacks, 1975; Zimmerman and Wieder, 1977). As an interactional accomplishment of all participants, including defendants,⁽²⁾ this social organization is described by such characterizations at the same time as it renders them sensible.

The important task, from this standpoint, is not to use an abstract theory of organization as an aid in deciding whether the court is bureaucratic. Students of the criminal-justice process have already given much time and attention to the question of which model of complex organizations makes sense of the court (Burstein, 1980; Clynch and Neu-bauer, 1981; Feeley, 1973; Hagan, Hewitt, and Alwin, 1979; Mohr, 1976; Nardulli, 1978), and they have had little success in answering it.⁽³⁾ A more fruitful procedure, given that observers and insiders experience the plea bargaining process as bureaucratic, is to discover what social organization lies behind their descriptions of a particular courtroom setting in which plea bargaining and related activities are salient occurrences. By social organization I refer to the "participation framework" of the court-room, as constituted by systematic deployment of standard practices that effect order in a variety of everyday public settings (Goffman, 1963; 1981).⁽⁴⁾

Misdemeanor plea bargaining occurs in the Garden City municipal court at semiweekly pretrial and settlement conferences. Prior to this stage in the adjudication of cases, defendants have been arrested for some offense, have had cases reviewed by a filing officer in the district attorney's office, have been arraigned, and have pleaded not guilty. At the pretrial conference, defense attorneys, prosecutors, and sometimes judges, discuss levels of offense to be charged and sentences to be administered in individual cases. Although defendants do not directly participate in negotiations (cf. Heinz and Kerstetter, 1979), they are required to be present in order to accept or reject the negotiated dispositions, and accordingly, change or reassert their prior not-guilty plea. Also present at these sessions are relatives or friends of defendants, two clerks, a probation officer, a court reporter, and the bailiff.

To step into the'courtroom in the middle of the pretrial conference is to be confronted by numbers of people moving about, talking, and engaging in a variety of activities, all of which, at first glance, give the appearance of a bazaar rather than a formal judicial setting. A number of investigators (Feeley, 1979c; Heumann, 1978; Eisenstein and Jacob, 1977: 19) describe scenes similar to these pretrial and settlement conferences. For example:

"Naive visitors will be bewildered by the throngs in criminal courtrooms where they expected dignified decorum. . . . the observer will hear one case called after another and disposed of within a few seconds or minutes. . . . he will see attorneys come in and out, transacting business with the court clerk and sometimes disappearing into an unmarked door, which the observer learns takes one to the judge's chambers. He may see the judge emerge for a ceremony when several attorneys are in the courtroom." (Eisenstein and Jacob, 1977:19)

But what seems chaotic at first glance exhibits particular forms of order on closer inspection.

Typically, an afternoon of pretrial conferences begins with numerous defendants, family, and friends sitting, standing, and milling around in the hallway outside the courtroom. At 1:30 p.m., a bailiff unlocks the doors, and defendants and their companions enter the courtroom and sit down. The two district attorneys assigned to misdemeanor cases may be seated already. Defense attorneys may be there already as well, or they may arrive shortly, and, like the district attorneys, are laden with clients' files.

A total of five or six public defenders (three full-time and two or three part-time) are assigned to misdemeanor cases. Only two are able to talk to the district attorneys at any given time. The others are free to visit with their clients and with each other, or to stand and wait their turn with the district attorney, busying themselves in a variety of self-absorbing activities such as day dreaming, reading files, and so on.

The activities of the lawyers are disrupted only momentarily or not at all when the judge enters the room. The judge's arrival is announced first by a buzzer and then by the bailiff saying, "Please remain seated and come to order; this court is again in session." As the judge enters, so does a retinue of two clerks, a probation officer, and a court-reporter. While plea bargaining and other discussions continue unabated, public defenders who have reached agreements with district attorneys in par ticular cases may then approach the bench and have these cases called for disposition, dismissal, or continuance for consideration at a later date.

Defendants spend but a matter of minutes conversing with court-room officials. This occurs when their defense attorneys speak to them briefly to advise or to present an offered disposition and also when the judge calls the defendants' cases for entry of the plea. Otherwise, they may be observed talking to each other or their friends. If not engaged, they may daydream, scan the courtroom and observe various activities, read, doodle, take notes, wring hands, or even mutter to themselves. In summary, a variety of activities, including plea bargaining discussions, disposition transactions, lawyer-client conferences, and defendants and others' waiting behaviors, occur during a pretrial settlement conference. Often, all of them are happening at once; yet they are neither random activities nor, in any strong sense, competing activities. Rather, they are made to coexist within two major kinds of limits, including (1) a precedence order and (2) an ecological order.

Precedence Order

The term precedence order refers to the way in which participants in the pretrial and settlement conference accord their activities a certain ranking, with respect to three kinds of encounters: (1) the judicial encounter, (2) the negotiational encounter between public defender and district attorney, and (3) encounters between public defenders and clients.

The Judicial Encounter

The judicial encounter, where involved parties officially dispense of individual cases, is the dominant activity in the courtroom. On the afternoon of the pretrial conference, when the judge first enters the room, there may be a number of defense attorneys ready to call their cases. One will step forward and address the judge.⁽⁵⁾

PD4 is standing behind the lawyers' table, facing the judge, when the latter walks into the court and sits down.

PD4: Your Honor, in the matter of George Smith, we would continue that case by agreement for two weeks. That would be April 13.

J: Is that acceptable with the people?

DA2: Yes your honor, with a fifteen-day time waiver.⁽⁶⁾

J: Does the defendant .waive time to the thirteenth and fifteen days beyond?

PD4: Yes.

J: So continued.

(Notes, 3/30)

The defense attorney or judge may also call defendants whose cases have been settled, and the judge will accept pleas and assign sentences:

PD4: Larry Steiner, would you come forward, please?

Def: Yes, sir

PD4: Mr. Steiner understands that the complaint will be amended to add 22350 of the Vehicle Code, unsafe speed, and he would plead guilty to that, and the other charge [drunk driving] will be dismissed

J: Is it now your wish to plead guilty to the infraction of simple speed, 22350

Def: Yes, sir

J: All right. And the DA has recommended a fine?

DA2: Yes, your honor. Thirty-five dollars

J: I will impose the recommended sentence (Court Recorder, 3/30)

The encounter in which the judge takes defendants' pleas and hears attorneys' recommendations for continuances or dismissals is maintained as the dominating courtroom activity by a number of means. The first is architectural and technological. The judge sits on a platform behind the bench, and his voice is projected over the court from a microphone atop his desk. Both visually and aurally his behavior is easily the focal part of the court. A second means is the practice of voice modulation. Participants in other encounters keep their voices at a very low level, insuring that the judicial encounter will not be "jammed out of operation" (Goffman, 1963: 162). Finally, when a case is called, the defendant and lawyers responsible for the case are required to drop what they are doing and give their attention' to the judge. Thus, at the time the defendants may be talking with their family in the audience section or watching their lawyers talk with defense attorneys. When an individual's name is spoken, however, that person promptly walks to the judge's bench, dropping whatever activity was occupying him or her. For example:

The judge has returned from chambers after a short recess. PD6 is standing to the right of the lawyers' table.

J: All right, I understand we have at least one more disposition

PD6: Yes, would the court call Miss Ellen Steward.

J: Ellen Steward. A woman gets up from her seat in the audience section and moves forward along with PD6 into the space before the judge's bench.(Notes, 6/24)

Whatever the state of an individual's current involvement within the courtroom, a constant readiness for the dispositional encounter is maintained.

Similarly, when the judge calls a case assigned to a district attorney who might be deep in negotiations with a defense lawyer, the DA drops the latter discussion and attends to the judicial encounter.

DA3 is conferring with PD4 when PD2 steps before the judge.

PD2: (to judge) I'd like to call the Robinson case and put that on for Wednesday morning.⁽⁷⁾

J: Mr. Revell, what is your recommendation?

DA3: (looks up from conversation with PD4) No objection, your honor.(Notes, 2/1)

If the judge does not succeed in obtaining an attorney's attention, that is a matter for remedy. In the following, a private attorney has called his client's name.

PA: I would like to move for a continuance in this case, your honor.

J: Is that acceptable with the people?

J: Jeffrey?

DA3: (turns away from public defender he is talking to) I'm sorry.

J: Is a two-week continuance acceptable with the people in the case of John Smith?

DA3: No objection, your honor.(Notes, 4/8)

The DA's apology, "I'm sorry," is a device with which a situational offender can disassociate himself from an offense and thereby display an allegiance to some interactional rule (Goffman, 1971: 113). In this instance, the obligation to be accessible for the dispositional encounter is clearly exhibited.

The Negotiational Encounter

Whenever a district attorney and a defense lawyer converge to discuss the disposition of cases, another delicately managed interactional phenomenon appears in the courtroom setting. The two parties do not sit down and systematically run through a discussion of all their cases one by one and then present their conclusions to the judge. Rather, negotiations occur in spurts and starts. There are reasons for this.

For one, there are but two district attorneys to five or six public defenders. This means that some of the public defenders must wait their turn while others sit down to talk with the prosecutors.

For another, duties are allocated differently in the respective organizations of the district attorney and the public defender. Each district attorney is responsible for handling distinct classes of offenses. One handles drunk and reckless driving cases and the other takes care of most other misdemeanors, such as petty theft and assault cases. Case-loads in the Garden County public defender's office, on the other hand, are determined on the basis of ensuring that each attorney has an equal number of cases, regardless of what kind they may be. The result is that the PD's caseload is diversified, and he may need to see one district attorney for drunk-driving cases, and the other DA for petty theft, assault, and residual cases.

A final reason that a DA and PD do not complete their negotiations in one encounter is that they have to attend to competing activities. The district attorneys' time is divided two ways, between the judicial encounter and the negotiational encounter. The defense attorneys' time is spent among three official responsibilities: representing clients before the judge, negotiating with the district attorneys, and attending to their clients directly--advising them, obtaining needed information, presenting offers that the district attorneys have made regarding disposition.

These factors contribute to a situation in which negotiations proceed in a syncopated fashion. There is constant movement in and out of negotiations by both district attorneys and public defenders. Nevertheless, such encounters are well-managed interactions within the court-room, and the work of plea bargaining is done expeditiously within them. Again, specific interactional practices achieve this feature of the pretrial conference.

Judges, we have seen, legitimately disrupt negotiations between lawyers. While the summoned party participates in the judicial encounter, the other awaits his return. Soon, the involved party regularly turns back to negotiation with the lawyer with whom he had been talking before the disruption. The bargaining discussion is thus displayed as a matter of importance in its own right.

Unlike the judge, others wanting to talk to the DA or PD involved in negotiations exert no interruptive rights. The few intrusions that do occur are by fellow lawyers and are accompanied by remedial exchanges. In the following, PD2 and DA3 were negotiating a particular case when PD4 stepped up to the pair.

1. PD4: Could I interrupt you just one second?

2. PD2: Sure, go ahead.

3. PD4: I've got a guy named Tapping out there, I gotta tell 'im I'm gonna continue his case. (Transcript, 2/11)

As Goffman (1971) suggests, line I is a remedy; it is a ritual way of anticipating a possible affront. Line 2 is a relief; it affirms the appropriateness of the remedy of the associated action. In line 3, PD4 also offers an account (Scott and Lyman, 1968) that further provides a warrant for the intrusion. The function of the interchange is to allow an interruption even while respecting the integrity of the ongoing conversation between PD2 and DA3.

For the most part, however, public defenders waiting to talk to a district attorney, or clients wanting to talk with their defense attorney, extend "civil inattention" (Goffman, 1963: 196) to negotiational encounters: not looking directly at the participants, spacing themselves so as not to intrude aurally on the discussion, and presenting themselves for engagement with one of the participants at calculated moments. They notice when the conversation stops, when one member gets up from his chair, turns away, or otherwise leaves the scene. Sometimes they await a head nod or other invitation from the person with whom they desire an audience. Thus, the regard accorded negotiadonal encounters is carefully orchestrated, requiring bystanders simultaneously to disattend the encounter's inner workings and yet keep themselves sufficiently apprised of its contours so as to obtain involvement at the right moment with the person whose attention is desired.

Practices intrinsic to the negotiational encounter also maintain its integrity. We have already noted that participants modulate their voices, at once allowing other engagements, to proceed concurrently and protecting the encounter from outside contamination. Consistently, mutually involved participants sit next to one another and turn their torsos and heads toward each other while talking, thereby creating a boundary between their interaction and the various activities around them.

Although negotiational encounters are episodic happenings rather than continuous events for pairs of district attorneys and public defenders, they articulate in an orderly way with other courtroom activities, being subordinated only to the judicial encounter while otherwise being protected by standard practices for internally and externally regulating encounters in social settings.

The Public Defender-Client Encounter

Discussions of public defenders and their clients are accorded the same respect as mutual involvements between DAs and PDs. The only intrusions are by judges. There is a difference, however, between negotiational and public defender-client encounters; this concerns the different rights of involved parties. On the one hand, negotiational encounters are started through the mutual availability and readiness of the two participants for talk. For example:

PD5 has been monitoring the interaction between PD4 and DA3. When they stop talking, he steps up to DA3.

1. PD5: I don't know if these are your cases or not, how do I know

2. if they're your cases?

3. DA3: I'll tell you if they're my cases

4. PD5: Do you have an Oswald?

5. DA3: Yes

6. PD5: Um

7. DA3: Oswald ((looks through files for the Oswald folder))

8. PD5: That's a- I'm surprised he didn't file a search on it,

9. it's a bad search . . .(Transcript, 2/18)

The determination that the DA is responsible for the Oswald case (lines 4-5) serves as a warrant for PD5 to begin negotiating the case (lines 8-9).

Public defender-client encounters of any substance, on the other hand, occur largely at the behest of the public defender. This is shown in a number of ways. Clients must maintain the same kind of readiness for conferences with their attorneys as they do for the judicial encounter. Defense attorneys may call upon them at any time to inquire about facts, to relay a district attorney's offer, or to otherwise inform them of the state of their cases. Thus:

PD6 stands at the front of the room near the railing.

PD6: Mister Alien.

Def.: Yes.

PD6: Step to the back of the room, please. The defendant gets up and walks to a corner at the back of the room.

PD6 walks to the same corner and they begin talking. (Notes, 6/10)

Clients, however, regularly await the disengagement of their lawyers from dispositional or negotiational encounters before seeking their attention.

When defendants are summoned by their lawyers, not only must they demonstrate readiness for the encounter; they also must talk at length if the lawyer so desires. But lawyers may rapidly close down an encounter opened by a defendant if they are, for whatever reason, not ready to talk.

Client walks up to PD2.

PD2: What do you want? Do you have a defense to this thing?

Def.: No. That's what I want to talk to you about.

PD2: Okay, I'll be back.

PD2 walks away to talk to another defendant, and the client sits down again. (Notes, 6/24)

Thus, the public defender-client encounter is given less ritual regard than either the judicial or negotiational encounter. While clients are required to participate fully when public defenders want them to, the defense attorneys themselves do not view these engagements as obligatory in the way they do judicial or negotiational discussions. A final point is that the least ritually important activities in the courtroom are the face-engagements and self-involvements of defendants and audience members, insofar as their activities are subject to interruption by judges and lawyers at any time.

The Ecology of the Courtroom

The courtroom in which the pretrial and settlement conference is held resembles other courtrooms in its physical structure, and it is divided into three distinct regions.

SEE DIAGRAM OF COURTROOM

The first is the audience section, where there is seating for 130 persons. Two aisles run through the audience section to the second area, a lawyers' region, which is separated from the audience section by a three-foot railing. It contains a long, conference-type table with six chairs on the audience side, facing the judge's bench. Six or eight chairs are placed against the three-foot railing, also facing the judge's bench. The jury box, on the right of the room as one faces the bench, is considered part of the lawyer's region because prosecuting and defense attorneys may use it to conduct their negotiations and conferences. The third area is the judge's region, with a five-foot-high bench, a raised platform behind the bench, and a witness stand (unused during pretrial and settlement). In front of the bench is a three-foot-high table. At the left side of this region, two court clerks and a probation officer sit at a desk. The court recorder is situated at the right side of the area.

Although, in part, these regions are designated by physical objects (railings, bench, etc.), they are also maintained through members' orientations to them (cf. Goffman, 1963: 152). For example, there is a barrier that bounds the audience section in front, but it is not continuous; the aisles on either side of the room cut through the barrier. Even though the forward parts of the courtroom are thereby readily accessible to members of the audience, and although there are ample seats in the jury box, on the front side of the railing, and at the lawyers' table, the defendants and their companions never move up and occupy them unless invited. Furthermore, just as clients do not sit in the lawyers' region, neither they nor the lawyers traverse the area behind the judge's bench.

There are exceptions that nevertheless fit the general pattern.⁽⁸⁾ First, clients may legitimately enter the lawyers' region or judge's area if summoned. Second, clients may approach their defense attorneys in the lawyers' region by gaining permission to enter it.

A private attorney is sitting in one of the chairs at the railing, next to the aisle. A defendant walks up to him.

Defendant: Are you Mr. Carson?

Attorney: No, that's him up here (motioning toward the lawyers' table). Defendant: Would it be possible for me to talk to him?

Attorney: Go ask him. (Notes, 3/1)

Third, court clerks and attorneys may be seen behind the judge's bench depositing a file or other papers on the bench when the judge is out of the room. In all breaches of geographic boundaries, then, the intruder has business and carefully exhibits that fact when entering a restricted region. It is not, for example, idle wandering, curiosity, or desire for more comfortable seating (the chairs in the lawyers' region are wider and more padded than those in the audience section) that prompts clients to enter the forward parts of the courtroom. They only do so to talk to their lawyers. Lawyers, clients, and bailiffs all seem oriented to such matters.

A defendant is standing next to the lawyers' region, just near the railing. He is talking to his public defender, who is standing near him, but who has momentarily shifted his attention to reading some papers while the defendant waits. The bailiff notices the defendant and walks over to him.

Bailiff: You should go out and sit in the audience until your name is called.

PDI: Oh, I'm talking to him. Bailiff: Oh, okay. (Notes 6/17)

Here, the bailiff takes the client's presence in the lawyers' region as an unwarranted intrusion. But the public defender's statement is permitted as an account for why the person's presence is not in violation of court-room order.

In summary, participants engage in a number of practices, such as voluntarily avoiding certain regions, entering them only for reasons of business, and asking permission--all of which simultaneously demonstrate a respect for, and produce social boundaries within, the courtroom.

This examination of the ecology of the courtroom directly bears on its dominant and subordinate encounters. As one moves from the back of the courtroom to the front, there is a transition from a free-access area (the audience section), to limited access (the lawyers' region), to very restricted access (the judge's region). The same move from the back to the front involves a change from an area of most subordinate involvements (those of the client with himself and his others) to encounters of secondary importance (negotiational) to the dominant encounter (the judicial one). Public defender-client discussions take place in the rear of the courtroom, in the audience section, in the jury box and jury room, outside in the hall, and so forth. In short, they occur anywhere but the judge's area, and their in-between status is thus exhibited by the fact that there is no specifically designated area where they can take place.

FOOTNOTES

1. Hasenfeld (1972: 256) defines "people processing" organizations as those "whose explicit function is not to change the behavior of people directly but to process them and confer public statuses on them . . . these organizations shape a person's life by controlling his access to a wide range of social settings through the public status they confer; and they may define and confirm the individual's social position when his current status is questioned." The definition fits the criminal court well.

2. ln language used by Perrow (1979: 246), my approach puts "an emphasis upon the daily construction and reproduction of basic social patterns by all actors in the system." Defendants have rarely been treated for what they are--active participants in the courtroom process. For example, the study by Nardulli (1978: 110) defines defendants as "reactive agents" who are "inputs" to the court, but not fundamental to its organization or its analysis. Other studies that examine defendants include Bottoms and McClean (1976: Chapter 3), Carlen (1976), Emerson (1969: Chapter 7), Feeley (1979c), and Rosett and Cressey (1976). With the exception of Emerson, however, the studies attempt to assess the defendants' perspective, and they do not analyze defendants' actual behavioral contribution to courtroom structure. The most recent recommendations for analyzing the courts as organizations continue to emphasize the importance of professionals while ignoring defendants and other nonofficial participants (see Clynch and Neubauer, 1981; Burstein, 1980).

3. ^One problem with treating the court as a type of complex organization is that it is a "loosely coupled system" (Hagan et al., 1979), wherein a number of agencies daily come together for the purpose of administering justice. Each of these institutions--police, district attorneys, public defenders, judges, probation officers, parole boards--when taken separately may have an internal organization that resembles any of various organizational models. But the criminal justice process as a whole, as Mohr (1976: 625) has suggested, does not seem capable of being "comprehended by the dominant strains of existing organization theory." By dominant strains, Mohr (1976) refers to the Weberian (1946) ideal typical bureaucracy; Dalton's (1959) political approach; Cohen, March, and Olsen's (1972) "organized anarchies"; and the organization-as-firm framework of Cyert and March (1963). On this point, see also Burstein (1980), Clynch and Neubauer (1981), Feeley (1973), and Nardulli (1978).

4. Other interactional studies of courtroom settings have treated social organization as being comprised of contextually bound, sequentially placed cues-of legal officials, used to accomplish such courtroom features as "shared attentiveness" (Atkinson, 1979), or the appearance of "competency," "consistency," and other ideals of justice (Pollner, 1979).

5. In the examples, individual public defenders are designated by the initials "PD" and a number. District attorneys are designated by "DA" and a number. The judge is denoted by a ")." All names (including geographic names) are fictitious.

6. This refers to the defendant giving up the right to a speedy trial.

7. Put that on for Wednesday morning" means put it on the arraignment calendar. The case is being continued to a more convenient time for entering the plea.

8. Clients may legitimately enter the lawyers' region or judge's area if summoned. And lawyers may enter the bench slot, too, when they have called a case. But by "exceptions" here I am referring to gaining informal access to these areas.