This is what you say to the arrogant prosecutor who tells you their lab report and scientists have determined that your client is guilty.
Remind them that their office was one of the first to use the new, exciting, and now shown to be a totally fraudulent "science" of bite mark identification. Then ask them if they know how many defendants their office convicted on bite mark ID? Then, if you want to be really cruel, ask them if they know the office that sent Neil and Slappy to the Florida Supreme Court?
Then you can use the crude pejorative, send them this link, and go investigate their science.
The real point is, as one great and now departed criminal defense attorney told us when we were in law school, the only thing you waive (wave) in trial is the American Flag. Remember that it is our job as criminal defense attorneys to question everything- no matter how red in the face your judge gets for wasting their time, and no matter how much the prosecution and even sometimes the judge threatens your client with a trial tax.
Rumpole tip- when a prosecutor threatens an increased sentence after trial, ask them to put it in writing. They won't. They know it is a violation of their ethical duties, and yet they do it all the time and the outrage from the criminal defense community is far far less than we believe it should be.
Anyway, read the article and get inspired to fight.
Bite Mark Analysis is Junk Science.
12 comments:
This is old news but sadly apparently still an issue today. There were a couple defense lawyers in Broward who raked bite mark experts over the coals twenty plus years ago. Can’t believe it’s still being used in places. Look up Snaggletooth Killer.
Trial tax is alive and well! God bless the United States Constitution.
I'm going to stir the pot on this one, but I've just never gotten a satisfactory answer to this question.
If a prosecutor can't ask for a higher sentence at trial than during the plea negotiation phase, what's the point of the plea negotiation?
I'm a business lawyer and have never set foot in the justice building. So, make whatever you want of that. But central to negotiation is that both sides give something to get something. The presumption looking in from the outside is that the prosecutor gives up the chance for his best day in court (a higher sentence) in exchange for a conviction without trial. The defendant gives up the chance for his best day in court (not guilty verdict) in exchange for a lower sentence.
If the negotiations break down, both sides go for their best day in court at trial.
I've never heard of a prosecutor complain after plea deal negotiations break down that criminal defense lawyers go for a "jury discount" in the form of a not guilty verdict after making offers to plead guilty that were rejected by the state.
You’re not stirring the pot. And plenty of your colleagues read our blog because for them and their world of bond swap defaults and summary judgment motions this is like slumming.
The simple answer to your question is the number 6. The sixth amendment to the constitution guaranteeing the right to a trial by jury. And when a judge and prosecutor threaten a defendant with a higher sentence for exercising their right to a trial the sixth amendment is attacked. And it happens every day in our little slice of utopia. Go into any courtroom and as a jury is being brought down the judge and prosecutor trot out their little dog and pony show.
Judge : Ms Prosecutor what is the plea offer?
Prosecutor: two years
Judge : and what is the maximum sentence ?
Prosecutor ( looking smug) life in prison.
Judge to defendant : ok sir you realize that if you go to trial and lose you’re facing life in prison.
Defendant. : yes judge. But I’m charged with a burglary of my own home. My wife locked me out in our divorce without a court order and I just went in to get my phone and wallet and then she tried to stop me so I pushed her away and they claim that is an occupied burglary with a battery.
And Mr/Ms business lawyer that is EXACTLY the kind of crap cases they bring and try every day and that is the strong arm tactics that go down in every courtroom.
And I realize that I did not fully answer your question. What happens is maybe in the above scenario during plea negotiations the prosecutor offers to reduce the charges for a year in prison. And the defendant rejects it. Then they go to trial and after trial they ask for thirty years. Now just before trial they were happy with a year. Now it’s thirty. Why ? Because the defense had the temerity to go to trial. If after a trial they asked for 18 months we would not quibble. Our client turned down a good deal. But they uniformly always ask for the maximum sentence “ to send a message “ or decades in prison. And what is that message ? Let’s face it. Our clients don’t read the appellate decisions. They don’t know the sentences people are getting. They may claim they are sending a message to criminals but what they are really doing is sending a message to the defense bar to warn their clients what happens when you go to trial and lose in front of judge “Maximum-Mendez-Goldstein”. And I used that name to be equally offensive to all.
Criminal work is noble work but there is a lot of bad lawyering out there. Whether civil or criminal, lawyers need to counsel clients too, not just prepare for trial. That’s why most lawyers are happier with certain judicial assignments of cases. To say “our clients don’t read the appellate decisions. They don’t know the sentences people are getting” is a failure on the lawyer’s part, not the client’s. And in negotiation, there is always a reward for certainty over a risk/reward for rolling the dice. You can turn it around and call it a penalty but you also like to place bets. You would never call it a “gambling tax” when Vegas keeps your money after you predicted the Chiefs to lose to the Ravens. That was the risk.
Many of the clients who make a bad gamble are represented by lawyers they did not choose and hire. Often those lawyers are very good but the defendants do not trust them. Thus when the lawyer says take 5 years you will get 30 if you lose and the case is bad so you probably will lose though I’ll do all I can, the client may not listen. It’s rarely a failure of advice when a client turns down a favorable plea and gets slammed. Perhaps they believe the case isn’t so strong if the state is willing to offer so much less than they are told they will get after losing trial. Perhaps they just don’t want to agree to any prison time and are bad at assessing risks. Most people are bad at that, that’s why the gambling industry flourishes.
Eh, I am not too upset at some guy who repeatedly sticks a gun in strangers faces to rob them getting 30 or 40 years to sit in prison until he is 60 or 70. It is a cost benefit analysis. Give him 1 and he will be back at it (as his record easily demonstrates).
What bothers me deeply is that we don’t put resources into trying to intervene early in that persons life when they are young to place him in a position where he is not engaging in that type of behavior. It would be much more humane and cost effective.
But once a person goes down that road (repeatedly) it is irresponsible not to lock them up for preventative reasons.
If the state wants to make an offer that is way less than what is necessary, because the system is so overwhelmed or their case is not great, I am good with the break as well. But I really don’t believe there should be a huge uproar when a violent guys gets slammed post trial.
First of all that’s just movie media talk about the guy who repeatedly robs strangers getting his cases dismissed over and over. It’s the people that I mentioned in my above scenario. The domestic burglary with a battery for a person who breaks into their own home. The female drug mule. The 19 year old kid from the streets who gets the 30 year sentence for a stupid purse snatching. True violent crime gets rightfully punished. That’s not the trial tax I am talking about.
I don’t think we disagree too much, except for this: not movies or media. There are a ton of repeat offenders who have had dismissals or who have done a year or two years and there and are back at it. Having offenders with 6, 8 or a dozen prior felony convictions, including for robbery is not out of the ordinary. For those types of anti-social terrorists who would just as soon rob or shoot you as they would eat dinner, preventative detention is completely justified. And, there are thousands of them having contact with the system every year in Miami. Most end up getting huge breaks on plea offers only to be back at it.
For those of you who are not familiar with or immersed in the criminal justice system, the "trial tax" works like this: Forget about all the talk related to plea negotiations which lends itself to talk about the various reasons the State may offer a pre-trial plea less than what it asks for after a conviction. The "tax" is best explained as the difference a judge gives as a sentence to someone who pled guilty (without a plea deal) straight up and the sentence he would give to the same defendant for the same crime having been convicted at trial less a small amount for "acceptance of responsibility." This difference is sometimes small and sometimes significant but it is there and applies (to different degrees) to every judge. Maybe it doesn't happen to every convicted after trial defendant, but it happens to some extent to most. Maybe not always consciously, but so what? Everyone who has worked for any period of time in a criminal courthouse knows this is true and it means that anyone who is convicted of a crime after trial is being sentenced not entirely in accordance with the crime they committed (except for minimum mandatory sentences) but also for having the nerve to go to trial.
There are actually statistics on fair sentencing that are readily available for both state court and federal court. It wouldn’t be hard to do a “trial tax” analysis rather than making an unsupported blanket statement that this applies to every judge. Here’s an example:
https://acrobat.adobe.com/link/review?uri=urn%3Aaaid%3Ascds%3AUS%3Aca59f408-247e-4a05-bd7d-bb17b7c21060#pageNum=1
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