Sunday, January 25, 2009

FIRST SUNDAY

This is the  first Sunday without football since those hot, steamy mornings in September (August if you count pre-season). Some readers consistently send emails throughout the season trying to remind us that this is supposedly a legal blog, and they don't like reading about sports. 

With that in mind we turn our attention to....NBA BASKETBALL!!!!!. HA HA. Just kidding. 

Lets look at a subject most of us try to avoid: SENTENCING. 

With a new batch of judges in the REGJB, attorneys will have to again create a new calculus for each judge when advising a client about how to proceed.   

"Does this judge have a particular known dislike of a particular crime?" an attorney must ask themselves. 

More importantly,  how does the judge handle sentencing? 

Some judges avowedly treat a trial as a gamble. "Win you go home, lose you get slammed." These judges are open and notorious about this "policy" and when the time comes for sentencing they don't really want to hear any arguments for leniency. They essentially let you know in no uncertain terms that you were aware of the rules of the game, you played the game and you lost. 

This attitude is of course abhorrent to the principles of justice and antithetical to just about every principle of being a good judge, including judicial ethics.  However, since many judges adhere to this philosophy, we invite them to put their money where their mouth is and defend it here on the pages of this blog. Anything you write will be published in its entirety.
UPDATE: FIRST RESPONSE BELOW.

We've all been in chambers, "off the record" when the judge has made the implicit or explicit threat about the consequences of an adverse jury verdict. We've all heard about the judges who want to assume the mantle of "maximum" worn so proudly by Judge Ellen Morphonios for so many years in the REGJB. And although we disagreed then and now with Judge Morphonios's philosophy about sentencing, she was one judge who would not shy from the discussion.  Hypocritical she was not.  She also uniformly gave your client about the fairest trial in the building. 

So how about it all you "wannabe Morphonios" robed readers? Who wants to defend the Las Vegas style of trials?  As Rocky said in the beginning of the movie when he was collecting money, "You wanna dance...you gotta  pay the band. You borrow money....you gotta pay the man."


Have at it. 

ps. This is not some liberal plea for more lenient sentencing. Some people do bad things and need to be punished. Society needs to be protected. This is about judges who abandon their responsibilities at sentencing and become human calculators, totaling the highest possible sentence and then imposing it. 


FIRST JUDICIAL RESPONSE?  from the comments section,  copied here in its entirety: 


As a judge, I believe that no one should be sentenced to a large number of years unless they committed a crime that hurt other people, commtitted a violent crime or are repeat offenders of the worst kind. Of course, sentencing requires a consideration and balancing of the four reasons for punishment, i.e., rehabilitation, deterrence, retribution and incapacitation. Sentencing also requires consideration of all the statutory factors.
If a defendant is offered probation before trial and you, as the judge, believe that probation would be a fair sentence, you should sentence the defendant to probation after the trial. I have done that many times. When a judge sentences a repeat offender (a real one, not one who is just technically a repeat offender), that's a different story. The judge gets to see that rehabilitation has not worked so far and no one has been deterred with light sentences. Inadvertently, that judge arrives at a conclusion that a heavy sentence is required to punish the defendant and, more importantly, to incapacitate the defendant. This is especially true of defendants who have already been to prison for a similar crime and continue to victimize other people.
I believe that sentencing is the most difficult thing we do. It is the most troubling aspect of being a judge. Many times I have had a good lawyer and a family convince me to give a lower sentence because they have been honest and realistic. I highly respect all those lawyers who know how to handle moments like that.
I hope we can all use this forum as a respectful sounding-board to discuss matters like this one today. As judges, we do not get much feedback from the lawyers.

Rumpole briefly notes, in response to the last line, it is hard as an attorney to engage a Judge in a conversation about sentencing while respecting the rules of ethics. We of course cannot talk about pending cases we have, and it seems awkward to bring up a past sentence because, at least I feel this way, the Judge has a right to tell me to mind my own business. 

24 comments:

HERE WE GO STEELERS said...

HERE WE GO STEELERS
HERE WE GO

PITTSBURGH'S GOING TO THE SUPER BOWL!!!!!
(and we're gonna win it. Big. )



http://www.youtube.com/watch?v=z3uiCRr3dGE

Fake Trialmaster said...

This is a subject for the true bottom feeders. The Trialmaster's clients need not worry about sentencing, as The Trialmaster has not had a client convicted at trial in years.

Anonymous said...

As a judge, I believe that no one should be sentenced to a large number of years unless they committed a crime that hurt other people, commtitted a violent crime or are repeat offenders of the worst kind. Of course, sentencing requires a consideration and balancing of the four reasons for punishment, i.e., rehabilitation, deterrence, retribution and incapacitation. Sentencing also requires consideration of all the statutory factors.
If a defendant is offered probation before trial and you, as the judge, believe that probation would be a fair sentence, you should sentence the defendant to probation after the trial. I have done that many times. When a judge sentences a repeat offender (a real one, not one who is just technically a repeat offender), that's a different story. The judge gets to see that rehabilitation has not worked so far and no one has been deterred with light sentences. Inadvertently, that judge arrives at a conclusion that a heavy sentence is required to punish the defendant and, more importantly, to incapacitate the defendant. This is especially true of defendants who have already been to prison for a similar crime and continue to victimize other people.
I believe that sentencing is the most difficult thing we do. It is the most troubling aspect of being a judge. Many times I have had a good lawyer and a family convince me to give a lower sentence because they have been honest and realistic. I highly respect all those lawyers who know how to handle moments like that.
I hope we can all use this forum as a respectful sounding-board to discuss matters like this one today. As judges, we do not get much feedback from the lawyers.

Anonymous said...

There actually was a judge who openly stated that there was no "trial tax" in his court. Yet no one recognized it. I used to be a County Court Prosecutor who appeared at the Miami Beach Courthouse when Swartz was the judge there. He not only did not assess a "trial tax", in some instances he would give less or hammer the state into offering less even during trial.

I never understood why the defense bar disliked him so much. Most of us at the SAO thought he was too defense oriented.

fake jay white said...

There's a sadness in the air.
No more will the stands be filled with cheer.

The Dolphins lost
and the emptiness hangs heavy

no more will they run Ronnie Brown
and scream "That's another Miami Dolphins' first down."!!!

Miami Frank Bruni said...

I just returned from L'Auberge Carmel - the famed Carmel restaurant. I will have some reviews up real soon. As the only cultured Justice Building attorney who really knows about restaurants and food, I am singularly qualified to comment on the Coq Au Vin, the ragout of duck legs, and other fine foods you cretins know nothing about.

Anonymous said...

Giving defendants probation after trial doesn't get judges re-elected. Undercutting the state after trial or not giving a trial tax doesn't make the PBA happy.

Let's talk about reality.
It's not about doing the right thing, it's about doing the right thing to keep the job.

old guy said...

Rehabilitation? Deterrance? Have you recently graduated from Drug Court, as a defendant?

Punish the defendants for the crimes they have committed against others. What was their impact on the quality of the victim's life?

All else is fantasy that they may teach you at judicial college, but is not related to the reality of crime and its impact.

the trialmaster said...

9:28 am. you are quite correct. the trialmaster has not lost a trial in many yrs. In fact, i was trying to remember the last lost and it goes back to the late 80s in a case with maximum morophonios. and it got reversed on appeal and I won it against carol king guarlnick the second time around. the trialmaster is not a bottom feeder and does not accept court appointments.

Anonymous said...

Why do I have a strange feeling that The Trialmaster doesn't "try" that many cases.

Anonymous said...

There are very few real Judges in the criminal courts and by that I mean a Judge who is actually neutral and does not automatically side with the State. Pineiro is
the first obvious choice. Who can
name the others?

Anonymous said...

Admit it Rump the only reason you started twittering is to flirt with the Colombian.

Anonymous said...

7:44 have you ever thought that maybe the "trialmaster" is a fictional character meant to spark the ire of the humorless on this blog?

Anonymous said...

L. Schwartz, with all his flaws never punished anybody for going to trial.

Anonymous said...

8:05:00 a.m., I can think of Stan Blake, Reemberto Diaz, Mark Leban, Mary Barzee, Tony Marin, Rosa Rodriguez, William Thomas.

Anonymous said...

From Wilson v. State, 845 So. 2d 142 (Fla. 2003) "[t]he law is clear that any judicially imposed penalty which needlessly discourages assertion of the Fifth Amendment right not to plead guilty and deters the exercise of the Sixth Amendment right to demand a jury trial is patently unconstitutional. United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968)." City of Daytona Beach v. Del Percio, 476 So. 2d 197, 205 (Fla. 1985) [**18] (quoting Gillman v. State, 373 So. 2d 935, 938 (Fla. 2d DCA 1979)). Therefore, although a guilty plea may justify leniency, see Smith, 490 U.S. at 802, an "accused may not be subjected to more severe punishment for exercising . . . [the] constitutional right to stand trial." Mitchell v. State, 521 So. 2d 185, 187 (Fla. 4th DCA 1988).

I will be the first to admit that Defendants get more breaks in Miami-Dade than any other Florida county; However, it is clear that a "trial tax" is unconstitutional and yet so pervasive. A first time DUI, low breath reading or refusal without an accident or threat of an accident should not get jail after trial, period. And yet, the tax is the norm, not the exception.

Anonymous said...

Rumpole,

Looks like Lemon Johnson, featured in your post of 12/9/08, got pinched by SCOTUS. http://www.supremecourtus.gov/opinions/08pdf/07-1122.pdf Turns out you were right to say that the Constitution forbids citizens from driving in cars. Who knew? Must be in one of those penumbras.

Anonymous said...

Thanks for that 3:00 p.m. list of former criminal defense attorneys or public defenders.
Guess I know why you think that they are FAIR - or are they weenies?

Anonymous said...

Monday, January 26, 2009 4:02:00 PM

Best case law quote ever, great research.

Anonymous said...

For purposes of appeal, how can it be proven that a judge imposed a "trial tax"? The plea offer is not necessarily the sentencing ceiling. Are we debating something that we have no real control over?

the trialmaster said...

It is true that the trialmaster does not try as many cases as he/she use to but my fees are very high and most in state court cannot afford a top quality defense. and, when the trialmaster files an appearance in most cases the pros. announces a no action or the indictment is dropped.The triallmaster is real, not fiction . Be assured, very assured.

Fake Trialmaster said...

To the Trialmaster--hey dipshit, with the exception of first degree murder and some high profile public corruption cases, nearly every criminal case in state court are charged via information (or A-form in County Court), not indictment. As an ex-ASA, I have heard of cases being no actioned or later nolle prossed because a defense attorney showed the charges weren't warranted. But I never dropped--and have never heard of anyone dropping--a case just because a certain attorney was for the defense.

You are probably some dumbass "attorney" who was lucky to pass the bar and who gets his (or her) ass regularly kicked by the rookies in County Court. Despite the fact that you are a total failure, your ego stays so high your head can't get through the courtroom door.

Anonymous said...

New Judges update:

Judge Stacy Glick had a jury trial to verdict on a B case.

Judge Cueto already on the split screen (bond hearings) ordering defendant on the DUI manslaughter case not to drive.

Abby Cynamon in a Juvy trial lasting 5 hours till 9pm?

dhonig said...

Hey Trialmaster, who beat you way back when, in front of Ellen?