concurring in the result. I write separately because the majority answers in footnote 16, by way of dictum, the very question it declines to consider on appeal because of the petitioner’s failure properly to raise the issue before the habeas court. In this footnote, the majority gratuitously claims that the trial court’s participation in the plea negotiations was proper.1 I strongly disagree and must set forth my reasons.
The petitioner’s attorney, Gerald Klein, had several discussions with the trial judge, Arena, J., regarding the numerous criminal cases the plaintiff had pending before the trial court. The sentence that was agreed upon in open court by the plaintiff was not recommended by the state’s attorney, Herbert Carlson, but was one made by Judge Arena during negotiations in chambers. At the petitioner’s sentencing on February 16, 1989, Judge Arena acknowledged that he took “a very active part in all the discussions leading up to the entry of the plea. This court was involved in pretrial discussions I believe commencing last March or *196April of 1988. ”2 Indeed, the habeas court found that “Judge Arena was instrumental in effectuating the bargain that was struck by the state and the defense.” (Emphasis added.)
In State v. Fullwood, 194 Conn. 573, 484 A.2d 435 (1984), this court squarely addressed the issue of the propriety of a trial court’s participation in pretrial negotiations that lead to a guilty plea. We framed this “serious question” in Fullwood as “whether the trial court undertook an impermissible role when it tried ‘to settle this matter.’ ” Id., 580. We held that if, by that statement, “the court actively participated in the negotiation of a plea bargain, disqualification would have been required. State v. Gradzik, 193 Conn. 35, 46-47, 475 A.2d 269 (1984). Although we have not adopted the federal rule flatly prohibiting trial judges from any participation in plea bargaining; Fed. R. Crim. Proc. § 11 (e) (1);3 our rules of practice expressly authorize the trial judge to do no more than to indicate whether a proposed agreed disposition may be accepted or rejected. Practice Book §§ 686-707, esp. §§ 694, 706.4 *197Active involvement by trial judges in plea negotiations has frequently been criticized. See United States v. Adams, 634 F.2d 830, 840-41 (5th Cir.); Frank v. Blackburn, 646 F.2d 873, 880 (5th Cir. 1980), modified in part, 646 F.2d 902 (5th Cir.), cert. denied, 454 U.S. 840, 102 S. Ct. 148, 70 L. Ed. 2d 123 (1981); Wright, Federal Practice and Procedure (Criminal) § 175.1, p. 639 (1982).” (Emphasis added) Id., 580—81; see also State v. Santangelo, 205 Conn. 578, 585-86, 534 A.2d 1175 (1987) (review of the available record revealed that pretrial conference did not constitute “active participation” and did not require disqualification); J. Bruckman, D. Nash & J. Katz, Connecticut Criminal Caselaw Handbook (1989) pp. 57-58, and cases cited therein. In Fullwood, we concluded that the record in that case was inadequate to determine whether there had been “an impropriety.” State v. Fullwood, supra, 581.
The majority summarily disregards this precedent and relies instead on the dictum in State v. Niblack, 220 Conn. 270, 596 A.2d 407 (1991), to support its unwarranted footnote. The majority’s conclusion, however, is unfounded for three primary reasons. First, the dictum in Niblack was not supported by any precedent. The only pertinent case cited in Niblack was the underlying Appellate Court decision in the present case of State v. Safford, 22 Conn. App. 531, 537, 578 A.2d 152, cert. denied, 216 Conn. 823, 581 A.2d 1057 (1990). In Safford, however, the Appellate Court merely held *198that the “prohibition against trial judges’ participating in plea negotiations is not, in itself, a matter of constitutional law . . . .”5 Id.
Second, the majority’s conclusion does a grave injustice to our holding in State v. Gradzik, supra, 47. The majority implies that in Gradzik we held that the trial court would be disqualified from presiding over the trial only in situations where the judge actively participated in unsuccessful plea negotiations. It is impossible to read Gradzik in that manner. Rather, Gradzik held that a trial judge would not be disqualified merely by advising counsel that if the defendant pleaded guilty, “his violation of probation [a separate pending offense] would be handled either in New Haven where he had been sentenced to probation or in West Haven before the same judge, at the defendant’s option.” Id., 45. In Gradzik, we concluded that “the court’s comments regarding the probation violation did not warrant disqualification. These statements occurred during the plea negotiations and appear to be nothing more than an explanation of the procedure for the disposition of the probation violation in the event of a guilty plea. . . .If the record revealed that the judge had been an active participant in negotiating the plea, we would view this claim differently. The dangers of such par*199ticipation are obvious. In the first place, judicial participation in plea negotiations is likely to impair the trial court’s impartiality. The judge who suggests or encourages a particular plea bargain may feel a personal stake in the agreement (and in the quick disposition of the case made possible by the bargain) and may therefore resent the defendant who rejects his advice. . . . Moreover, the defendant is likely to make incriminating concessions during the course of plea negotiations. ... In the second place, judicial participation in plea discussions creates a misleading impression of the judge’s role in the proceedings. As a result of his participation, the judge is no longer a judicial officer or a neutral arbiter. Rather, he becomes or seems to become an advocate for the resolution he has suggested to the defendant. United States v. Werker, [535 F.2d 198, 203 (2d Cir.), cert. denied, 429 U.S. 926, 97 S. Ct. 330, 50 L. Ed. 2d 296 (1976)]. United States v. Adams, [supra, 840-41]. There is nothing in the record, however, to support a conclusion that the trial judge participated in the plea negotiations.” (Emphasis added; internal quotation marks omitted.) Id., 46-47.
Lastly, the majority’s application of the prohibition against judicial involvement in plea bargaining only where the same judge presides over the trial, overlooks the strong policy reasons for prohibiting such involvement. These reasons are brought to light by the federal system. In that system, plea bargaining practices are governed by rule 11 of the Federal Rules of Criminal Procedure, which was amended in 1974 to include the absolute prohibition against judicial participation in plea negotiations to avoid “the ‘chilling effect’ such participation might have on a defendant’s decision to either accept a plea bargain or go to trial. Blackmon v. Wainwright, 608 F.2d 183 (5th Cir. 1979) [reh. denied, 611 F.2d 882 (5th Cir. 1980), cert. denied, 449 U.S. 852, 101 S. Ct. 143, 66 L. Ed. 2d 64 (1980)].” *200Frank v. Blackburn, supra, 880; Fed. R. Crim. P. 11 (e) (1).6 The prohibition against judicial involvement in plea negotiations “is necessarily absolute because of the role required of the judge once an agreement is reached; the court must decide for itself whether to accept or reject the plea bargain.” United States v. Adams, supra, 835.7
Thus, when the majority asserts that the prohibition should only apply to judges who participate in the plea negotiations and then conduct the trial and the sen*201tence, it only tells half the story. The majority fails to acknowledge the inherent dangers present when a defendant pleads guilty to an agreement negotiated by the judge—the very danger the federal rule sought to avoid.
There are several reasons for keeping the judge out of any plea negotiations: “(1) judicial participation in the discussions can create the impression in the mind of the defendant that he would not receive a fair trial were he to go to trial before this judge; (2) judicial participation in the discussions makes it difficult for the judge objectively to determine the voluntariness of the plea when it is offered; (3) judicial participation to the extent of promising a certain sentence is inconsistent with the theory behind the use of the presentence investigation report; and (4) the risk of not going along with the disposition apparently desired by the judge may seem so great to the defendant that he will be induced to plead guilty even if innocent.” Frank v. Blackburn, supra, 880.
As the District Court for the Southern District of New York has explained in often quoted language: “The unequal positions of the judge and the accused, one with the power to commit to prison and the other deeply concerned to avoid prison, at once raise a question of fundamental fairness. When a judge becomes a participant in plea bargaining he brings to bear the full force and majesty of his office. His awesome power to impose a substantially longer or even maximum sentence in excess of that proposed is present whether referred to or not. A defendant needs no reminder that if he rejects the proposal, stands upon his right to trial and is convicted, he faces a significantly longer sentence. One facing a prison term, whether of longer or shorter duration, is easily influenced to accept what appears the more preferable choice. Intentionally or otherwise, and no matter how well motivated the judge *202may be, the accused is subjected to a subtle but powerful influence.” United States ex rel. Elksnis v. Gilligan, 256 F. Sup. 244, 254 (S.D.N.Y. 1966).
The court in United States ex rel. Elksnis goes on to state that “[t]he judge stands as the symbol of evenhanded justice, and none can seriously question that if this central figure in the administration of justice promises an accused that upon a plea of guilty a fixed sentence will follow, his commitment has an all-pervasive and compelling influence in inducing the accused to yield his right to trial.” Id.
Judicial participation in plea bargaining is a serious concern. Many defendants perceive or are led to believe that if the “deal” offered or suggested by the presiding judge is not accepted and if he or she is ultimately convicted, then the sentencing judge, although not the same one as the negotiating judge, will “throw the book” at him or her by imposing a much harsher sentence. In this case, on the basis of the representations made by the petitioner’s trial counsel, it appears that this scenario transpired.8 At the habeas hearing, trial counsel testified that he had advised the petitioner to accept Judge Arena’s plea offer because “a jury might *203very well [have found] him guilty and I [had] told him about [a certain judge] and I [had] told him the type of sentence that he could expect if he were convicted.” He testified that he had been told by the state’s attorney and Judge Arena that this other judge would have presided over the petitioner’s trial. The petitioner’s attorney also testified that he had told the petitioner that, if convicted, the judge who was to be assigned to the case would have given the petitioner “a very, very long sentence.” That the petitioner had this perception should alone be sufficient to condemn this practice in Connecticut of allowing active participation by judges in plea negotiations.
I recognize that there is a need for the trial court to facilitate reasonable agreements between the state’s attorney and the defendant. That need, however, can be met without allowing trial judges actively to participate in the negotiations because doing so jeopardizes the integrity of the judicial process. Under standard 14-3.3 of the American Bar Association Standards for Criminal Justice (1986), if the judge agrees to participate in plea discussions, he or she “shall serve as a moderator in listening to their respective presentations concerning appropriate charge or sentence concessions. Following the presentation of the parties, the judge may indicate what charge or sentence concessions would be acceptable or whether the judge wishes to have a preplea report before rendering a decision. The parties may thereupon decide among themselves, outside of the presence of the court, whether to accept or reject the plea agreement tendered by the court. . . . All discussions at which the judge is present relating to plea agreements should be recorded verbatim and preserved, except that for good cause the judge may order the transcript of [the] proceedings to be sealed. Such discussions should be held in open court unless good cause is present for the proceedings to be held *204in chambers. Except as otherwise provided in this standard, the judge should never through word or demeanor, either directly or indirectly, communicate to the defendant or defense counsel that a plea agreement should be accepted or that a guilty plea should be entered.” (Emphasis added.) If no agreement is reached, or if subsequent events require the withdrawal of the plea, the facilitating judge must disqualify himself or herself.
The commentary enunciated the reason for the open, recorded negotiation session as follows: “Normally . . . a judge should not allow plea discussions in which he or she is involved to take place in chambers. The judge is the ultimate dispenser of justice, and justice should be publicly done. In rare situations where full public disclosure would not be in the interests of justice, for example, where it would jeopardize ongoing police investigations or where it would force disclosure of an informant’s identity, the judge may permit discussions to take place in chambers.” III A.B.A., Standards for Criminal Justice, c.14, Pleas of Guilty, standard 14-3.3 (c) through (f), commentary.
The commentary to the A.B.A. standards further states that “[t]hese standards do not suggest that the court should play the role of active bargainer. Instead, paragraph (c) states that the judge ‘shall serve as moderator,’ and paragraph (f) admonishes that the judge ‘should never through word or demeanor, either directly or indirectly, communicate to the defendant or defense counsel that a plea agreement should be accepted or that a guilty plea should be entered.’ ” Id.
Appropriately, the standards attempt to stake out a middle ground between an absolute prohibition against judicial participation and unfettered judicial involvement in a process best left to the parties. Clearly, the standards are consistent with our present *205rules of practice. Practice Book §§ 686 through 707. This court, therefore, should be guided by the standards set by the American Bar Association as to the judge’s participation in the plea negotiations. Accordingly, I disagree with the dicta in footnote 16 of the majority opinion.
Finally, I feel compelled once again to express my concern on the direction of the majority with regard to the future of the great protector of liberty—the writ of habeas corpus.9 In Bunkley v. Commissioner of Correction, 222 Conn. 444, 467 n.1, 610 A.2d 598 (1992), I wrote of that concern as follows: “I fear that the true purpose of . . . [the majority’s] dicta is the beginning of an assault on the writ of habeas corpus as a vehicle for justice.” In Bunkley, the majority wrote that the writ was reserved for “convictions that violate fundamental fairness”; (internal quotation marks omitted) id., 460-61; but today, the majority elevates that dicta to a requirement that the petitioner must ordinarily “establish some fundamental constitutional violation...."
We have never held before that the “great writ of liberty,” which has its roots in the Magna Carta, is ordinarily reserved for a conviction that involves a constitutional violation. Rather we have held that the special and extraordinary legal remedy is for a “miscarriage of justice or other prejudice.” D'Amico v. Manson, 193 Conn. 144, 156, 476 A.2d 543 (1984). Although most cases are predicated on constitutional violations, I am unwilling to circumscribe the writ of habeas corpus as *206the majority suggests. See General Statutes § 52-466. Justice Charles Evans Hughes wrote over fifty years ago that “[i]t must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired.” Bowen v. Johnston, 306 U.S. 19, 26, 59 S. Ct. 442, 83 L. Ed. 455 (1939). The writ of habeas corpus “ ‘holds an honored position in our jurisprudence . . . [as] a bulwark against convictions that violate “fundamental fairness.” ’ ” Gaines v. Manson, 194 Conn. 510, 516, 481 A.2d 1084 (1984), quoting Engle v. Isaac, 456 U.S. 107, 126, 102 S. Ct. 1558, 71 L. Ed. 2d 783, reh. denied, 456 U.S. 1001, 102 S. Ct. 2268, 73 L. Ed. 2d 1296 (1982).
What is particularly troubling to me is that the majority, in order to achieve its goal, appears to use dicta and cases that are inapposite to proclaim eventually for a future case that its holding is based upon rock solid precedent. This is why I believe it is necessary to answer the dicta of the majority concerning the trial judge’s participation in the plea negotiations, as well as its seemingly innocuous reference to the writ of habeas corpus.
Because I agree with the majority that the issue regarding the trial judge’s participation in plea negotiations as a per se violation of the cannon of judicial conduct was not raised before the habeas court, I concur in the result. I also agree that the remaining claims of the petitioner are without merit.
My reference to “plea negotiations” encompasses sentence negotiations as well.
Judge Arena also noted on the record that “[t]his court was involved in extensive discussions concerning this matter over a long period of time. That started when I was first assigned here in March of 1988. This defendant is familiar with the criminal justice system.”
Rule 11 (e) (1) of the Federal Rules of Criminal Procedure provides: “The attorney for the government and the attorney for the defendant or the defendant when acting pro se may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty or nolo contendere to a charged offense or to a lesser or related offense, the attorney for the government will do any of the following:
“(A) move for dismissal of other charges; or
“(B) make a recommendation, or agree not to oppose the defendant’s request, for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court; or
“(C) agree that a specific sentence is the appropriate disposition of the case. The court shall not participate in any such discussions.” (Emphasis added.)
Practice Book § 694 provides: “If a plea agreement has been reached by the parties, which contemplates the entry of a plea of guilty or nolo con*197tendere, the judicial authority shall require the disclosure of the agreement in open court or, on a showing of good cause, in camera at the time the plea is offered. Thereupon the judicial authority may accept or reject the agreement, or he may defer his decision on acceptance or rejection until there has been an opportunity to consider the presentence report, or he [or she] may defer it for other reasons.”
Practice Book § 706 provides: “If the parties reach an agreement which contemplates the entry of a plea of guilty or nolo contendere, they may advise the judicial authority in advance of the plea. The judicial authority may indicate whether he will concur in or reject the proposed disposition.”
Moreover, the facts in State v. Niblack, 220 Conn. 270, 596 A.2d 407 (1991), are inapposite to the facts in this case. In Niblack, the plea agreement was for a sentence term of a fixed number of years. In this case, the plea agreement merely set a cap—that is, a maximum of ten years, execution suspended after five years with four years probation and the right to argue for a lesser sentence, which the petitioner’s attorney chose not to exercise. In other words, the “ten years suspended after five” was not a certainty, as the sentence agreement in Niblack was. We recognized this distinction just recently when we held that, for purposes of sentence review, a sentence cap is not a plea agreement. In State v. Anderson, 220 Conn. 400, 406, 599 A.2d 738 (1991), we held that “[a] defendant who reserves the right to argue for a lesser sentence anticipates that he may be able to persuade the court to impose a lesser sentence than that which the state is recommending.”
See footnote 3, supra.
When a federal circuit sought to interpret rule 11 (e) (1) of the Federal Rules of Criminal Procedure, it turned to the United States Supreme Court’s decision in McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969) (court held that a defendant whose guilty plea to a tax evasion charge had been taken in a court procedure that did not fully comply with rule 11 was entitled to withdraw his plea without having first to show prejudice). Although the court in McCarthy interpreted an earlier version of rule 11, “the application of McCarthy to violations of [r]ule 11 (e) (l)’s prohibition of judicial participation in plea discussions is not difficult, at least where the defendant has pled guilty and seeks only to withdraw his plea. That prohibition serves to strengthen the prophylactic scheme established by [rjule 11 and enforced by McCarthy, that is, it helps to insure that involuntary, unknowing and unfounded guilty pleas will not be entered.” United States v. Adams, 634 F.2d 830, 839 (5th Cir. 1981).
“The applicability of McCarthy . . . is not, however, so clear where the defendant has in fact pled not guilty and received a full trial. . . . The explicit [r]ule 11 purposes discussed in McCarthy do not involve these dangers to defendants who plead not guilty after unsuccessful plea negotiations in which the judge has participated.” Id., 840-41. Of course, the federal courts have also held that rule 11 (e) (1) prohibits judicial involvement in plea negotiations where the defendant does, in fact, have a trial. The reasons given for so doing are virtually identical to those discussed by the majority in its footnote 16. See United States v. Adams, supra; Frank v. Blackburn, 646 F.2d 873 (5th Cir. 1980), modified in part, 646 F.2d 902 (5th Cir.), cert. denied, 454 U.S. 840, 102 S. Ct. 148, 70 L. Ed. 2d 123 (1981). That scenario, in which the defendant proceeded to trial, has been described as the “reverse side of the coerced plea situation.” Frank v. Blackburn, supra, 893 (Hill, J., dissenting). Although the coerced plea situation was the original catalyst for the prohibition, the federal courts extended the prohibition against judicial involvement to cases where the negotiations are unsuccessful and the defendant goes to trial.
The following is what transpired at the habeas hearing between the petitioner’s trial counsel, Gerald Klein, and the petitioner’s habeas corpus counsel, Karen Goodrow:
“[Goodrow]: . . . What, if any, advice did you give him with regard to entering a guilty plea?
“[Klein]: Well, I told him that a jury might very well find him guilty and I told him about [a particular judge] and I told him the type of sentence that he could expect if he [was] convicted.
“Q. And is it fair to say that [this judge] would have sat on the trial, had he had a criminal trial?
“A. That’s what I was told by the state’s attorney and Judge Arena, that it had been assigned to [this particular judge], although we were picking a jury with Judge Schaller.
“Q. And what did you tell him with regard to [this judge]?
“A. That I thought he’d get a very, very long sentence.”
Although not completely reassured, I am pleased to read that the majority, in footnote 13 of its opinion, acknowledges that the writ of habeas corpus is not limited to constitutional violations but is also a remedy for a “ ‘miscarriage of justice or other prejudice.’ ” Bunkley v. Commissioner of Correction, 222 Conn. 444, 461, 610 A.2d 598 (1992). When, however, the availability of the “great writ of liberty” is qualified in any manner that is not recognized by our law, I will continue to speak out, as it is my obligation to do so.