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.