8th Circuit rules judge can't sentence defendant after telling him federal system 'sucks,' advising on plea bargain

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A federal judge in Kansas City, Missouri, can’t sentence a defendant after telling him that the federal judicial system “sucks,” and he probably would get less time if he opted for trial instead of a guilty plea, a federal appeals court has ruled.

The 8th U.S. Circuit Court of Appeals at St. Louis ruled for the defendant, Seneca Harrison, on Sept. 10.

Harrison had opted for a bench trial after the judge commented. Contrary to the judge’s assertion, he got a longer sentence after being found guilty of illegal possession of a firearm. The sentence was longer because Harrison no longer got points for acceptance of responsibility in the sentencing calculation.

The appeals court vacated Harrison’s June 2019 sentence of 92 months in prison and remanded for sentencing before a different judge. The new judge may consider the likelihood that Harrison would have pleaded guilty absent the judge’s comments, the appeals court said.

Before the trial, the government had indicated that, if Harrison pleaded guilty, it would seek a sentence of 70 to 87 months in prison.

“Judges should not participate in plea negotiations,” the appeals court said. “We have no doubt that the court was trying to help, but it was not its job to advise Harrison, and its comments were inappropriate.”

Judge David Stras, an appointee of President Donald Trump, wrote the unanimous panel opinion. Other judges on the panel were Judge Roger Wollman, an appointee of President Ronald Reagan; and Judge Jane Kelly, an appointee of President Barack Obama.

The judge who commented, tried Harrison and then sentenced him was U.S. District Judge Stephen Bough, an appointee of Obama, court records indicate.

Bough had commented after asking the government about the terms of the plea deal. The government said it was not offering anything better than the range recommended by sentencing guidelines.

“That’s probably worse than if he got convicted, right?” Bough asked. “I mean, because if he gets convicted, he can argue for less, right?”

The prosecutor answered that the government could also argue for a longer sentence.

Soon after, Bough excused the prosecutor from the courtroom. Bough then turned to Harrison and said the federal system “sucks” and is “really harsh.” If Harrison pleaded guilty, Bough said, he would be sentenced by another less lenient judge. But if he decided to go to trial, the other judge would be out of the picture.

“Commenting on the sentencing practices of another judge and making disparaging remarks about the federal system harms the ‘public reputation of judicial proceedings,’ ” the appeals court said. “Furthermore, taking the court’s advice exposed Harrison to a higher sentencing range, which raises serious questions about ‘fairness.’ Indeed, the government does not contend otherwise.”

Harrison had been pulled over for traffic violations and was charged with being a felon in possession of a firearm when police found a shotgun in the vehicle. Harrison reportedly told police that he was “kinda glad you guys got me” because he planned to kill someone the next day, the Kansas City Star had reported.

A law clerk for Bough, Ben Clark, told the ABA Journal that the judge had no comment.

Hat tip to Bloomberg Law.

Updated Sept. 14 at 2:05 p.m. to include information from the judge’s law clerk.

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