concurring.
Although I concur in the result reached by the court, I would follow a different route. Specifically, I am troubled by the possibility that Part III of court’s opinion could be read as holding that a prosecutor’s threat to recommend a more severe punishment after the second trial in a two tier system cannot, because of the prosecutor’s secondary or advisory role in sentencing decisions, constitute a violation of due process. As is recognized in Corbitt v. New Jersey, 439 U.S. 212, 222, 99 S.Ct. 492, 499, 58 L.Ed.2d 466 (1978), there exists the possibility that the judge may be “substantially influenced by the prosecutor and the plea-bargaining process”. While extreme cases will be rare, I can imagine a factual record revealing such complete judicial abdication to or absorption of an earlier announced sentencing threat of a prosecutor that due process should be held to have been violated.
Here, however, the threat was a factual description of the length of sentences that had already been meted out for like offenses and the prosecutor’s actual recommendation was phrased in terms of consistency “with what has happened in the past”. Had statements of such tenor been made within the context of a plea bargaining session, there would be little question of any due process violation. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). The nature of the statement, the record of consistent past sentences for like offenses, and the refusal of the judge to accept precisely the recommendation all convince me that the prosecutor’s statement did not transgress due process bounds.