Wednesday, September 16, 2009

THE TRIAL TAX

Here's the problem: You go to court on a third degree felony or a misdemeanor case and the state makes an offer and the attorney asks the court to make a lower offer and the court declines because if the court makes an offer and it is rejected and then the case goes to trial, the judge can't sentence the defendant to anything higher because if s/he does it is a vindictive sentence.

The judges have all had this scenario beaten into their judicial brains between margaritas and shrimp cocktails at their judicial "seminars".

OK. So be it.

But lets think about this:

What is really happening is that by declining to make a plea offer the Judge is doing two things:

1) Abandoning their ability to review a case and exercise discretion to keep prosecutors in check. Lets say for some reason prosecutors in Judge X's division decide to offer 30 days jail on all first offense marijuana possession cases. A judge who has this policy is allowing the prosecutors to run roughshod over the defense, knowing that most defense attorneys don't want to try a case.

Now, why do most defense attorneys not want to try a case? There are many reasons from incompetence to the fear of a greater sentence after trial. And there's the rub.

2) When a judge declines to get involved in plea negotiations for fear that the judge will not be able to sentence the defendant to a higher amount after trial, what the Judge is really saying is that "I don't want to offer you a fair sentence now, because I want the right to slam and punish your client if you lose the trial."

Something is so very wrong about that.

The Supreme Court of Florida has emphatically said that "the law is clear that any judicially imposed penalty which needlessly discourages assertion of the Fifth Amendment right not to plead guilty deters the exercise of the Sixth Amendment right to demand a jury trial is patently unconstitutional."
Wilson v. State, 845 So.2d 142(Fla. 2003) citing U.S. v. Jackson, 390 U.S. 570 (1968).

And yet, every day in almost every court of this State Judges somehow convey to defendants and their attorneys that the sentence may well be significantly higher if the defendant loses at trial.

Lets go back to our scenario: The attorney asks the Judge to review the case and make a plea offer. The Judge declines because any offer s/he makes will limit their ability to give a higher sentence at trial. And the reason they give for this nonsense is that they learn more about the case during the trial.

Horse-hockey! That explanation is disingenuous at best. Lets go back to our example. First offense possession of marijuana. Residue amount. Prosecution offers 30 days. A-form is 6 sentences long. What more about the case is the Judge going to learn at a one witness trial that both lawyers can't proffer? Lawyers are paid to communicate facts. In a more serious case- say a manslaughter- after several motions and hours and hours of discussion and argument, isn't the Judge in as good a position as they will ever be to evaluate the case and make an offer? And if the offer is what they think justice mandates, make the offer- and if the defendant rejects it and goes to trial and loses, why not then impose that same sentence?

The only real reason we can see that Judges don't do this is that they lose their ability to punish a defendant for going to trial. And that is wrong.

It's about time we abolish the trial tax and make the system work. And the more cases that are tried, the better the system works.

See you in court, trying cases.

33 comments:

Anonymous said...

Yehuda (young Padawan) - two things
about your recent result.

First - on paper your plea may sound like a deal but I guarantee
you just pled this guy out to an
eventual life sentence. 10 years
probation on a murder charge.
Leroy will violate and end up in
prison for the majority of his life.

Second - and most important - when you are defending someone, it is
always about that client and never about the State. Your duty is to
zealously defend your client, not
to zealously help the prosecution in its case against the co-def.

If that's what you're going to do then go back to the State. All in
all I know you are a fighter and
seem to be a good trial lawyer.
Maybe the cameras and attention just got to you on this one - probably should have just said no comment.

Anonymous said...

You nailed it Rump. Most of these Judges can barely keep a straight face when they say they may learn something new in trial that would make them sentence my client to above the state's offer. Perhaps you were in court this week when some smirking judge said that to me and I held up the a-form and told the judge it had 46 words in it and what more did he think he was going to find out from the officer in a one witness possession case where my client had no priors but needed a not guilty for immigration reasons? The State quickly took a continuance.

David Oscar Markus said...

The trial tax is also a big problem in federal court: http://markuslaw.com/userimages/sentencing.commission.testimony.pdf

Anonymous said...

What puzzles me about Florida is why judges are involved in plea bargaining at all. In other jurisdictions that respect the separation of powers, charging and plea decisions are the sole province of the executive... where does the judicial branch get its authority to intervene in prosecutorial discretion? (well, it's right there in Title V of the Code where prosecutors and public defenders and sheriffs are all bunched together in the judicial branch). I was shocked upon learning that a judge can veto or disapprove a proposed plea offer... who is the real prosecutor here?

Anonymous said...

In my days as an ASA, I generally offered a sentence LIGHTER than I thought deserving of the crime if a defendant pled guilty/no contest. My rationale for doing so was as follows:

1. A defendant deserves credit, for lack of a better term, for accepting responsibility.

2. Before admitting guilt, the State has only "probable cause"--a very low standard--against a defendant.

Depending upon the case, there are other rationales involved such as effect on victims, strength of case, etc.

Of course, this rationale only works if an ASA (and judge) are REASONABLE in their pleas--something we see less and less of today. I will say this much, in my days at the SAO, at least 80% of my plea offers were below guidelines.

Anonymous said...

Prosecutors need to be pressed because they cannot prove 70% of their cases. It is a shame that clients do not have the ability to take a chance when they are looking at ADJ CTS compared to 5 years for a something like coke poss. It is nice to know that a judge would not slam the client after trial.

Anonymous said...

State Attorneys need to step up and get rid of the cases that they cannot prove.

Look at the football player's case-he got 30 days from pat Trese- was Pat just told what to do by his bosses or did they have problems proving their case- it does not make sense.

Anonymous said...

Rumpole,

Your conclusion, that judges uniformly and routinely want to hammer a defendant for going to trial and losing, is invalid as your analyses is based upon an incorrect assumption. Yes, I am sure it does happen in some courtrooms, but certainly not all.

Judges do not get involved in plea negotiations for fear of the "vindictive sentencing" situation. This may be the stated reason, but it is only an excuse.
Judges refuse to broker pleas in order to "cover their butts"--a common affliction at the REG which stikes all legal practitioners, not just judges.

Should the judge resolve a case over the state's "objection" (wink, wink, nudge, nudge, know what I mean, know what I mean...")to a fair and just sentence and the defendant then commits some other crime, then it's the judge who faces the public's backlash and possible job loss come election time.

Lack of "cojones" trumps justice.

Anonymous said...

Yes, but, who is going to try every single case?

There always will be an unwritten rule about this.

Some judges still give fair sentences after a trail.

Anonymous said...

My other favorite line is: "they're not being punished for exercising their right to trial; they're being rewarded for accepting responsibility and pleading guilty"

CAPTAIN said...
This comment has been removed by the author.
CAPTAIN said...

THE CAPTAIN REPORTS:

My View: Let's talk death penalty in 2010: by Raoul G. Cantero III and Mark R. Schlakman (from the Tallahassee paper).

The OP Ed begins:

"Three years ago, the American Bar Association released a Florida Death Penalty Assessment Team report that documented numerous concerns about Florida's death penalty process. Since then, neither the government nor The Florida Bar has done much to remedy the problems."

and goes on to say:

"Among the findings was that legal representation of death penalty defendants in postconviction proceedings is often abysmal"

and more:

"Another recommendation embraced a unanimous Florida Supreme Court opinion that called upon the Legislature to revisit the death penalty statute. The report, like the opinion, observed that Florida is the only death penalty state (out of 35) "that allows a jury to decide that aggravators exist and to recommend a sentence of death by a mere majority vote."

and:

"Another alarming problem with Florida's death penalty is the number of defendants on Death Row who were later exonerated"

and closes by saying:

"We hope that this election cycle will provide an opportunity to openly and honestly discuss these issues and to seriously consider possible solutions"

Read the full article here:

http://www.tallahassee.com/
article/20090916/OPINION02/909160305/1006/opinion/My+View++Let+s+
talk+death+penalty+in+2010

CAPTAIN OUT ....

Anonymous said...

Death penalty litigation takes up an extraordinary part of the Supreme's docket. Cantero realized the moment he got there the shambles that existed, and spoke out about it from the beginning.

Florida was one of the first states to set up an organized system to deal with Death sentenced post-conviction litigation, and they quickly tried to disarm it in 2003, when Jeb Bush finally closed the North of Tallahassee Office of Capital Collateral Regional Counsel, the same office that, that year was able to free two wrongly convicted men off of Death Row. Coincidence?? Again David Von Drehle's Among the Lowest of the Dead: The Culture of Death Row merits careful reading.

Anonymous said...

No reasonable offers by the state and no reasonable offers from the court will result in the swelling of case audits for judges, which is a big no-no.

99% of the time, you will either get a reasonable offer from the State or the Court. The Dade SAO has reasonable and fair prosecutors.

Now Broward on the other hand......

CAPTAIN said...

THE CAPTAIN REPORTS:

Gov. Crist has conducted interviews to replace Judge Tam Wilson. We should be hearing the "short" list from the original six names very soon. We will have the Gov's final decision by October 2, 2009.

Darrin Phillip Gayles
Lisa Sharon Walsh
Deborah White-Labora
Alan S. Fine
Victoria R. Brennan
Antonio Arzola

CAPTAIN OUT .....

Anonymous said...

let's give everyone the same sentence for similar crimes before or after trial so that taking responsiblity is meaningless, that sounds like the best solution.

Anonymous said...

LOL. Your biases are blinding you to other explanations. This is not as clear as you often make it sound.

For example (and putting aside the stupid cases that sometimes, but very rarely, go to trial), you don't mention the possibility that a judge may want to offer something less than a case is worth because of case load demands and then sentence someone to what they deserve after sentencing. There's nothing wrong with that approach; in fact, the most fair and liberal judges I practiced in front of did exactly that.

Now, we all are victims of over aggressive attorneys and over-reaching appellate court opinions. What else do you expect the judges to do? You make your bed, you lie in it. You can't ask judges to give your clients a break to avoid trial then hammer them for giving your clients what they deserve afterwards.

BTDT

Anonymous said...

Good ol Yehuda is attached at the hip to his mentor Jonathan Scwhartz. What else did you expect? He's the same bonehead who said that the victim's younger sister testifying at two trials would be "therapeutic." Dont worry, Yehuda, although they poke fun, at least they're talking about you.

I hear just after his client pled, Judge Tinkler Mendez asked the clerk for a date on the PVH. No way that loser makes six months on probation, much less ten years. A textbook application of the "lay away plan" by Monica Gordo. Kudos to her.

Meltz is a good lawyer, so maybe his client will walk.

Anonymous said...

Judge Thomas was the best about this. He was willing to sentence someone to a WH SES after trial if that was the right thing to do. He made sure the state and the defense knew he would not impose a trial tax, and it improved the fairness of the plea offers from the state before trial as well. It was amazing how many cases ended up being null prossed after jury selection because the state didn't have their witnesses (I was a C PD in there so I had more of the types of cases where that would happen). Of the ones that went to verdict, I won a lot more than I lost. Trials are almost always good for defendants. Thomas saw it as his job to try cases, he was willing to do it multiple times a week, and though it made for more work for the lawyers in there it also made for a much more just system than exists in many REGJB courtrooms. And, the system didn't melt down nor were his numbers ridiculously high. Many times the excuse for a trial tax is that, yeah, its kinda theoretically wrong to discourage exercising the right to trial, but in reality its necessary to avoid the entire system coming to a halt. Judge Thomas' courtroom proved that excuse to be BS. It just makes being a judge a full-time job instead of the part-time job we know many treat it as. Of course, the problem is not just with judges, it is also with certain defense attorneys who see trials as interfering with their real job (signing up more clients) rather than as a central part of their real job (defending the clients they've already signed up).

Anonymous said...

Is it OK for the Q to send out DUI flyers that state in part that his office is the only office officially certified as 87% no carbon impact on the environment by the Florida Bar and that his office is the only office certified 100% Trans Fat Free by the Florida Bar.
Is any of that relevant?

Anonymous said...

Why do they only call the Shumie on the civil blog and not this blog anymore. Those guys have been partying at Montys since about 4:30 and meanwhile we're all schleepping over here.

$$$exxxy intern said...

I'm looking to score an older attorney. Doesn't matter if he's married. Does matter if he has buck$.

I got school loans coming up.

5'11, 130, spin instructor/ 3rd yr law student
Long jet black hair.
can I leave my email address?

Anonymous said...

6:18-- Youre a guy right? Its been done before. Its boring and old.

Anonymous said...

5:49, Civil lawyers-- we know how to roll.

Anonymous said...

R
this is nonsense unless you give examples. 12:50 was right. Some judge refuse, absolutly to involve themselves in negotiations. But Rump, you're supposed to be known by your knowledge and homework.

Some judges DAILY call attorneys sidebar to see what the defendant will take to close a case; specifically a case involving no violence.

I'm aghast that someone of your caliber wrote this article without naming judges who are approachable, if not welcome the approach to the bench.

How about Judges Piniero, Blake, Tunis,
R. Rodriquez, Barzee, Diaz and others. It's outrageous that you ignore judges at REG, on a daily basis that offer pleas below G-L. This is as a result of their number of years in the system and an understanding of limited resources to handle cases.

Anonymous said...

Rump,

I think you were in Seraphin's division yesterday. The State was asking for jail time on a 1st DUI that was bound down. I listened to the defense attorney request Seraphin get involved, and he said no because of potential motion for vindictive sentence after a future trial and sentencing. The prosecutor was being so unreasonable on this case, and the defense attorney could not even get depositions.

I feel bad for the defense attorney, stuck in a corner and no where to run!

Anonymous said...

Scotty Saul kicked some serious ass in Broward this week. That cocky sonofabitch thought he owned the place, tried his case, never sucked up to anybody and destroyed everything in his path.

Chick into muscles

Batman said...

I think it is unfair to say that judges are not involving themselves in plea negotiations because they don't want to be stuck with a "fair sentence" after trial.

Scenario: Judge hears proffers from both sides as to what the appropriate sentence should be to obtain a plea offer from the court. The judge offers the pleas and the defense rejects. Case goes trial the and the defendant's proffer is not accurate as to the facts or the defense witnesses testimony and/or the defendant takes the stand and lies.

Do you think the defendant should be afforded the right to have a free shot a lying to the jury and and not face the music for that manipulation? What happens if after the trial the court learns that the defendant has an alias that is now uncovered with additional priors not known in the plea discussions?

There are multiple scenarios which make binding the court to no sentence greater than the plea offer unacceptable.

Do I believe in the trial tax? NO. The application of extraordinary sentences after trial strictly for going to trial is unconscieneable. But, it is the fear of being bound to a sentence which may later be determined to be inadequate, or would allow someone who deserves greater punishment off easy, that prevents most judges from making offers.

Think about it Rump.

Anonymous said...

If you hate the state as much as you purport daily; if you want judges involved so bad, then have your clients plead guilty and leave sentencing up to the court. The State will ssert their facts and recommendation and the defense will do the same. Defense attorneys hate this option.

Anonymous said...

What about the DC firing at the SAO? I thought Rump has inside knowledge about things........I disagree about the Yehuda postings....7 years for murder seems pretty strong, especially on a media case like that. I was in that court last week and it looked to me like the big guns at the SAO were looking for blood on both guys and trying to have one trial to convict both. Seven years with all that credit he already has, think it was a good result for his client

Anonymous said...

From Wiki:

...ending plea bargaining has put responsibility back into every level of our system: police did better investigating; prosecutors and lawyers began preparing their cases better; lazy judges were compelled to spend more time in court and control their calendars more efficiently. Most importantly, justice was served – and criminals began to realize that they could not continue their arrogant manipulation of a paper-tiger court system. ”

Some legal scholars argue that plea bargaining is unconstitutional because it takes away a person's right to a trial by jury. In fact, Justice Hugo Black once noted that, in America, the defendant “has an absolute, unqualified right to compel the State to investigate its own case, find its own witnesses, prove its own facts, and convince the jury through its own resources. Throughout the process, the defendant has a fundamental right to remain silent, in effect challenging the State at every point to ‘Prove it!’” By limiting the powers of the police and prosecutors, the Bill of Rights safeguards freedom.

Plea bargaining is also criticized, particularly outside the United States, on the grounds that its close relationship with rewards, threats and coercion potentially endangers the correct legal outcome.

So let's just do away with pleas and that way, the constitutional rights of all defendants will be observed. Defendants have a right to a trial and should receive one.

Other counties don't use it. Other countries, don't have the death penalty either. Perhaps other countries are more enlightened.

Anonymous said...

Hey 9/16/09 @ 7:54 p.m., what the &%@* ?

What do you look like?

Anonymous said...

9/16/09 @ 7:54 p.m. looks like Scott Saul.