NO SUCH THING AS A TRIAL TAX

 Except here.

We have no difficulty in concluding that the trial court, by adjudicating him a felon, penalized Hodges simply for exercising his right to a jury trial. The court expressly and clearly stated as much when it told Hodges during sentencing that had he tendered a plea, an adjudication of guilt would have been withheld, but since Hodges elected not to plead and was later found guilty at trial by the jury, “he of course is being adjudicated guilty.” In other words, had Hodges not elected to proceed to trial, his punishment or sentence would have been less harsh—namely, he would have received a withhold of adjudication of guilt and would not be an adjudicated felon. 

Opinion_2025-1998 by Anonymous PbHV4H

Now for our robed readers who will never admit to imposing a trial tax, take a deep breath when you read this. And give the trial judge some credit for at least being honest about what he was doing and why. 

HAPPY NEW YEAR 2023

 Courts are closed Monday January 2, 2023.  But we are working. A Miami legal blogger's work is never done. 

If you are not a long time and careful reader, then you are preparing for a trial that you allowed some apparition in black robes to schedule for you. Sucker. You 1) ruined your holidays by having to prepare for the case; 2) were set up to walk into a buzz-saw of judicial and prosecutorial resolutions to get tough on crime. 

Oh, there's no such thing as a trial tax. No No No. Defendants do not get punished for exercising a constitutional right to have the prosecution prove their case beyond a reasonable doubt. Nope- it's just that little theater the judge and prosecutor innocently engage in as the jury is outside....

Judge: "What's the current plea offer?"

ASA: "Two years' probation. But as soon as that jury walks in, the state is going to seek fifteen years"

Judge (to defendant) : "I don't know anything about the case. But do you understand you can settle your case today for probation, but if convicted- and I have no idea what is going to happen- you face fifteen years?"

That little charade tells you all you need to know about the "so called trial tax" If you're set for trial on Tuesday....shame on you. Those people who sit a few feet higher than you would like nothing more than the word to spread that defendants better not risk a trial in their courtroom. It makes that 4pm spa appointment a little easier to make. 

SOME GOOD SECOND AMENDMENT NEWS 

Meet Mr. Rico Marley.  He took these guns into his local Publix in Atlanta. 

Shockingly he was arrested. Why, we cannot fathom. Just a simple American bringing an arsenal into his supermarket, just like the founders foresaw: 

John Adams: We need a second amendment for guns. 

Thomas Jefferson: Why do we need that?

Adams: Because in the future society will be less agrarian and more centralized in cities and I think those Americans of the future will need to have their right to bring their personal protection into markets which I think, in the future will be called something like "big market" or maybe even "supreme markets" or something like that. 

Having spent ten months in a Georgia jail, the case was dismissed when it became clear to prosecutors that Mr. Marley did not commit a crime under Georgia law. He is currently under indictment in federal court for a misdemeanor of reckless endangerment. 

Elections have consequences and laws have meanings. When legislators run on second amendment "gun rights" for all Americans to have their god given right to carry a gun anywhere they choose, then people should not be shocked when guns are carried into  supreme-markets, hospital delivery rooms, movie theaters, and childrens' playgrounds. People are only doing what the law allows. 

And those mass shootings are all fake anyway? Right? Like Global Warming and fair elections. Fake news. 

Happy New Year- and one last word on that. It is January 2. We will give you today. After today- NO MORE HAPPY NEW YEAR WISHES. No more emails from Dewey Cheetum and Howe and all of their staff wishing us a Happy New Year and by the way did we know that they are now available to handle all your first party insurance storm disaster claims? Should we have such a case to refer, we will never refer it to any law firm that clogs our email in box with insipid holiday email messages. That is so 1999 digital marketing strategy. Grow up and get a snapchat and twitch account will ya? 

Coming this weekend: Requiem for a Dolphins team. 

IN PRAISE OF JUDGE TINKLER MENDEZ

 The story broke Tuesday by superstar reporter David Ovalle on his twitter @Davidovalle305 (no use linking to an article behind a firewall)  that MDPD police detective Armando Socarras pled guilty during a bench trial before Judge Tinkler Mendez. Socarras was caught stealing $1300 cash during a fake drug bust set up by public corruption detectives. The prosecution- rightfully so- was seeking an adjudication and prison. Judge Tinkler Mendez declined to follow the recommendations of the prosecution and sentenced Socarras to twenty-four months probation and withheld adjudication. 

Here is why we support that decision. 

First, what Socarras did was reprehensible. And we sincerely doubt this was his first rodeo. Cops have been stealing money from contraband busts ever since Al Capone was running booze during prohibition. In federal court, the land of no-mercy, there are enhancements for public corruption by police officers which would have boosted the almighty federal guidelines into a severe prison sentence. The 18 USC 3553 factors would have also supported a prison sentence under the "send a message" theory to other corrupt police officers, which we imagine there just might be a few more in the Sunshine State. 

And of course there is the defense attorney mindset of punishing a cop who has been responsible for so many defendants going to prison. If he stole money, maybe just maybe he lied on an a-form! Judges everywhere reading this blog are gasping at that last sentence. How many times have judges based their decisions denying motions to suppress on the theory that "this officer would not put her career on the line to lie in this case." News flash- yes they would and they do all the time. 

So lets start with the proposition that the prosecution's request for a year in prison and an adjudication was, if anything, lenient, perhaps reflecting Socarras's plea, albeit at the very last moment. 

Now we turn to the sentence, issued by a Judge affectionately called "Tink" by the denizens of the REGJB. 

This was a first offense (or at least a first arrest). The defendant had significant money pressures. Although it hurts the public perception of law enforcement, he stole drug proceeds, not the life savings of an elderly person. Socarras faces the loss of his law enforcement credentials, if he hasn't lost them already, and the loss of his career. He has admitted his responsibility and appears motivated towards rehabilitation. 

Our point is this. There are tens of thousands of defendants every year in a similar position to Socarras. And probably five percent of them get the type of mercy shown by the judge here. The rest of them. a large majority of them most likely African-American young men, have their life thrown into the gulag. Sent to prison, they emerge hardened and more bitter. Unable to get a job or public housing, their limited future narrows even more. Judges send people to jail for up to a year for misdemeanor and traffic offenses for goodness sakes. How many people in Socarras's position receive the type of reasoned mercy and a sentence that Judge Tinkler-Mendez issued? 

The answer is far too few. And this is the starting point. Good lawyers should  now repeatedly tell felony judges how Officer Socarras got a withhold and probation while stealing from a crime scene. "And if he got that sentence then why isn't my client entitled to.....(fill in the blank)? "

For years we perambulated around the REGJB on bond hearings telling Judges that Joyce Cohen got a bond, so why can't my client get a bond? This lasted until the current crop of thirty-something judges would stare at us blankly, having been in diapers at the time of the last great murder trial in the REGJB. 

The point is we hope and want our judges to be more than human calculators, adding up points and issuing a top of the guidelines sentence because while we all know there is NO SUCH THING as a trial tax, it just so happens that in this case, despite the pre-trial probation offer, ten years prison is the right sentence here. 

We applaud Judge Tinkler-Mendez for her bravery. It isn't easy to show mercy when the public is watching. People want the death penalty for all crimes, until they or a loved one are charged, and then they cannot understand why the punishment is so harsh. 

Let's hope this is the start of a trend of treating people a bit more humanely, especially in non-violent crimes. If Socarras gets in  trouble again, it most likely will not be a violent crime and he can still be sentenced to prison. Without a badge he does not represent a danger to our community. 

Let's see what happens in other cases, and if you have a case similar to this one where the Judge wants a five year prison sentence, let us know. The door swings both ways on praise and public criticism. 

2021 WEEK ONE

 Longtime and careful blog readers know that Rumpole's number one, inviolate rule of trials is to never ever ever allow a case to be set for trial during the first week of the New Year. Avoid the first two or three weeks of January if at all possible. 

The rule is based on years of experience. Watching colleagues and their clients go down in flames and judges issuing sentences well above the norm. 

There are multiple reasons for this. First and foremost is that Judges and Prosecutors spend the holiday weeks off during December pondering the prior year. And most of them reached the conclusion that they were too soft on defendants, which in turn allowed too many defendants to go to trial. And this of course, created more work than Judges want. So, as sure as Summer follows Spring, judges put their New Year's resolution into effect during the first one or two trials in January. "Let the word go forth" they fantasize saying, "Things are changing around here. You proceed to trial at your own risk. No more Ms. Nice Gal in these here parts." 

Of course as sure as Fall follows Summer, these Judges will- Casablanca like- deny the existence of a "trial tax" : "We are shocked! Shocked to learn that defendants are uniformly sentenced to a higher term of years after trial than before trial. Surely, if this is so it is because we, as Judges, "learned" more about the case, and not because we punished the defendant for going to trial and losing. Of course the Constitution forbids such a punishment."

State Court practitioners may wish to cite this case at appropriate times. We generally pull a dogeared copy of Wilson v. State from our battered briefcase right after the State says something like "the plea offer is withdrawn and the State is seeking the max sentence after trial." Acting stunned, we lift a copy of Wilson into the air and reply "Surely the prosecution is not telling this court that they will ask the court to punish the defendant for exercising his right to a trial by jury."

We also recognize that the constitutional right at issue in this case is not the defendant's right to appeal his conviction or sentence but, rather, the defendant's constitutional right to a jury trial. However, just as a trial judge cannot punish a defendant for exercising his or her appellate rights, the 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

Wilson v. State, 845 So. 2d 142, 150 (Fla. 2003)

The less serious, but still relevant concern, is that who wants to spend the Christmas and New Years holidays preparing a case for trial? 

2021 is of course different. There are no trials this first week of January. But, like a vaccine, they are on the horizon. So it may be time to open the closet, bush those suits, shine those shoes, press those shirts and tie those ties. Trials are coming back. 

Just not during the first week of the New Year.