Tuesday, April 20, 2010


Jason Taylor is a Jet. Hard to believe. And the J...E...T....S open the season in Miami.

Trial Tax:

If there is anything that truly chills the Constitution and the Sixth Amendment right to trial it is the so called trial tax.

You know how it goes- the prosecution offers three years probation for a couple of third degree felonies, but your client wants a trial. Then the Judge and the prosecutor go through their well worn act - read: dog and pony show- in which the Judge asks the prosecutor what the maximum penalty is and what the prosecution will seek as a sentence after trial? The prosecutor then solemnly intones that the total possible penalty is 15 years, and suddenly the client with no priors with whom everyone was happy to see sentenced to probation is told that the sentence will be at least ten years and they will be taken into custody immediately after the verdict.

This show so incenses us that we have developed several strategies to deal with it.

How do you, as a criminal practitioner deal with the threats and attack on the right to trial?

And for those of you that wear a robe and read the blog, any defense of this despicable dog and pony show would be appreciated. We promise you a fair hearing and we truly are interested in any well reasoned defense of this procedure.

See you in court, turning down pleas and doing what we do best.


Anonymous said...

Sometimes I will do a pre-plea inquiry. If the judge says what the sentence would be, you got 'em on vindictive sentencing if you lose at trial.

Anonymous said...

Something tells me u are a much better blogger then trial lawyer



The Jets do not open the season in Miami. They open the New Meadowlands Stadium in New Jersey on Monday night, September 13th against the Ravens. And you can watch it live on ESPN at 7:00 pm. (Actually the Gints open the stadium the day before against the Carolina Panthers, by virtue of a coin toss conducted by Roger Goodell).

I am assuming that you meant to say that the Fins opening home game on September 26th is against those hated JETS!

Cap Out ....

Anonymous said...

Under your theory a failure to take responsibility is meaningless. Sentencing mitigating factors recognize defendants who accept responsibility and a lesser sentence is often pronounced. One man's failure to accept responsibility is another man's "trial tax".

Anonymous said...

Just don't lose the trials

Anonymous said...

who is filing next??????????

Anonymous said...


When you have a good plea offer from the state but your client won't accept it, doesn't the judge/state show help convince your client to accept?

I don't like trial taxes anymore than the next guy, but unfortunately, our system in Miami-Dade is so overburdened, we need 99% of our cases to plea out just so the justice building won't shut down. This isn't one of Florida's rural counties where you get offered 18 months state prison for a first offense cocaine charge and the case goes to trial 60 days after arraignment.

The judge/state show, while old and predictable and done in just about every courtroom in the building, is a necessity. If I were a judge, I would do the exact same thing. The judge is not telling the client what he or she will be sentenced to, only fully informing them of the maximum penalty for their charge, asking the state what they will be seeking at sentencing, and reminding them that they have an option at this point to close their case out to something much less.

If a judge simply permitted a trial to occur without issuing this warning, the system would shut down. And worse, if judges assured clients that they would still get the withhold and probation if they lost at trial (even if the judge has full intentions of issuing that sentence), then everybody would roll the dice.

There is a 6th amendment right, and if the state is being unreasonable or your client is truly innocent (and we all have one or two of those in our respective stables) then try the case. But cases need to close out. Our system relies on it. Think about DUI and traffic trials in county court. The system is set up so that more than 50% can be nolle prossed for officer/witness failure to appear. In fact, the system relies upon it.

There is a difference between threatening a client to take a plea, or merely (yet suggestively) advising them. Come on, admit it. There has been a time in your career when a good ole fashioned jury-is-lining-up-outside-the-door exchange between the judge and state has convinced your client to accept a reasonable plea. Especially when you knew the evidence against him or her was strong and they were gonna get lit up at trial.

The 6th amendment is still alive and kicking. If you and your client so desire, then exercise it. The judges, in their positions of authority, have an effect on our clients that even we do not have. Sometimes, a verbal kick in the pants by a robed one is just what our more stubborn clients need in order to see the light.

Anonymous said...

An exceptionally smart (and very recently retired judge) put it this way....

Before we commence Jury Selection I will offer you a FAIR disposition.

Should you be convicted by a jury, I will impose a sentence consistent with JUSTICE.

That is not a "tax". You cannot have your cake and eat it too....

Anonymous said...


The Trial Tax and vindictive sentencing are important issues, but I personally think that you've given the Dog and Pony show short shrift.

In my experience, GOOD defense attorneys (mostly PDs, I'll note) will serve as a sort of gatekeeping function. If the client incorrectly thinks what they did is not a crime, the defense attorney explains that the action is a crime and encourages a plea. If the client has a ridiculous story that jurors are unlikely to believe, the defense attorney explains that and encourages a plea. If the client seems to be truthful, and wants his day in court, a good defense attorney tries the case.

The Dog and Pony show is not meant for the above-mentioned "good defense attorneys." The Dog and Pony show is meant for the hacks who are either too dim-whitted, too lazy, or too trial/fee-happy to take the above actions. Those attorneys are the ones whose stupidity, slothfulness, or ego are such that a conviction might later be overturned on innefective assistance grounds becuase the client was never told what he might face, was told that he's got a "great case" (and thus should hire this defense attorney), or is never otherwise given straight advice.

A smart judge does the Dog and Pony show in all cases in which s/he either lacks knowledge whether the defense attorney is of high quality (and thus would properly counsel his/ her client) or knows full-well that the defense attorney is stupid, lazy, or trial/fee-happy.

Viewed in this light, the Dog and Pony show is more of an informal, "plea rejection colloquy."

Anonymous said...

Honestly Rumpole, isn't this about the third or fourth time you've bitched about your precious "trial tax"? What's wrong - don't have anything new to write? Or just want to see the same people write in to either justify the concept that before-trial-you-get-mercy/after-trial-you-get-justice OR ELSE to agree with you that judges and prosecutors who ask for a greater sentence after conviction at trial are bullies.

Anonymous said...

When you buy something on sale, you pay less than full price. If it's not on sale, you pay full price.

If our clients plead to a charge pre-trial, it's like getting a sale. If they are convicted after trial, they pay full price.

Anyone who doesn't get that concept - defense, state or judge -blogger - really doesn't get the system.

In an ideal world, everyone who is guilty would be convicted at trial, and everyone who is innocent would be acquitted. But this ain't no ideal world, so deals are made. You don't like the deal? Don't take it. But don't cry after the fact regretting that you could have gotten a better deal prior to losing at trial.

one our own for supreme court? said...

The leading candidates, according to administration officials, are Solicitor General Elena Kagan and Judges Diane P. Wood of the United States Court of Appeals for the Seventh Circuit and Merrick B. Garland of the United States Court of Appeals for the District Circuit.

Other names floated by the administration include Judge Sidney Thomas of the United States Court of Appeals for the Ninth Circuit; Judge Ann Williams of the United States Court of Appeals for the Seventh Circuit; Gov. Jennifer Granholm of Michigan; former Chief Justice Leah Ward Sears of the Georgia Supreme Court; Homeland Security Secretary Janet Napolitano; North Miami Branch Court Judge Sheldon "Shelly" Schwartz; Martha Minow, dean of Harvard Law School; and Justice Carlos R. Moreno of the California Supreme Court

eyeONQ said...

Roethlisbgerger suspended for six games!! Somebody call the Q!!!

Anonymous said...

Rumpole, it depends on the plea offer and the chances of the state proving the case. If the state is very likely to win, the plea offer is good, and the defendant is being unreasonable, I'm the first one to go sidebar and ask the judge and the sate to put on the dog and pony show. If the trial outlook is great for the defendant or the state's offer is bad, I'll tell them that the offer is rejected and to bring down a panel.

Batman said...

I think one of the arguments which is so often overlooked on this issue is illuded to by 9:00 am. But, the more direct analysis says, if you are offered a plea by the court, that is done, not so much because the offer is the most appropriate sentence, but as a convenience to the court and witnesses and to permit the defendant to acknowedge what he/she has done and mitigate his/her punishment.

To allow a defendant to see in advance his/her absolute downside, not accept the "deal" (which contains "consideration" for all parties), go to trial (possibly lie in his/her own defense) and then suffer no consequences for non acceptance of responsiblity lacks fundamenal fairness to everyone involved.

I understand the concern that the "trial tax" is coersive, but I still beleive that good judges are going to recognize legitimate defenses from "looking for lightening in a bottle." Good judges are not going to be vindictive in their sentencing.

The problem is we have slowly take all discretion away from our judges. Maybe it is time to return some of it and maybe, just maybe, many of you, and the public as well, will understand why you have to look at how a judge exercises their discretion to determine just how qualified they are.

Anonymous said...

it is common sense rump. no judge imposes a tax per se, but gives more credit to those who accept responsibility. if you go to trial knowing you are guilty, you dont deserve the same credit. I have no problem with that.

South Florida Lawyers said...

You guys are having an interesting discussion about fundamental rights, justice versus fairness, and the limitations faced by an underfunded criminal justice system, and they're talking about "Shumie" on my blog.

Anonymous said...

The Big Ben suspension proves that the N.F.L. disciplinary system is racist. Pacman was suspended for a year for being rowdy and Chris Henry was suspended 8 games for misdeameanors. First Belichik gets a fine for cheating during games and now Ben gets 6 games for being a serial rapist.

Anonymous said...

That recently retired judge who often used said quote was rick zwieg. He was done everyday at 11.

Anonymous said...

To 656 am and the other ASAs there is a Right to a trial and a wrong to punish to go to trial. THE LAW ( read the cases) says you CAN NOT give extra punishment to those who chose not to "except responsibility" and exercise their RIGHTS to go to trial. Going from probation to prison is just punishment for going to trial. I am not saying that punishment for the crime convicted of is wrong but the bump up from probation should not be more than CC or 364 NOT PRISON. That is Just punishing the Defendant not only for exercising their rights but punishing the defendant for making the State and Judge to do the Job.

Anonymous said...


why don't you stake out the gates to the parking garage at the REGJB and take pictures of all the judges leaving at 1pm to get their nails done or a round of golf in. The trial tax is not so much to encourage a plea as it is to ensure a 2pm tee time.

Toy Story said...

The question is, is the trial tax too heavy a price to pay when our system assumes that even the guilty in fact, must go free sometimes.

The result is that the guilty in fact and those that were innocent in fact, get slapped with the same stiff sentence at the end. For the guilty in fact, this seems an acceptable outcome that no one would feel bad about.

But for the innocent in fact, it is far worse a slap in the face, that not only are you guilty by the roll of the dice, but that you were slapped with a stiff sentence, even harder for trying to prove that you were not guilty.

That outcome is something that I suppose some sleep with at night fine, while others may feel the injustice that just took place.

Anonymous said...

It's the old conundrum on gas prices. Do you pay more if you use a credit card, or, do you pay less if you use cash. Consumers say the former, gas station owners say the latter. You decide what you want to pay with. You may be lucky to find a gas station like the one in Coral Way and 57th Avenure where the price is lower with cash and they have a no-fee ATM inside for your convenience.

Anonymous said...

rory stein for judge

Anonymous said...

I believe in a "trial tax" if the defendant's choice to goto trial is an irrational one. It's like filing and arguing pretrial motions that you know aren't going anywhere and are a waste of time.

Anonymous said...

C'mon DS.......we've known each other a long time and I respect you, but that's a bogus argument. Tell me you've never had a case where an offender deserved lots of prison time but the prosecutor offered you straight probation because the case was so weak (either because there wasn't a lot of evidence or because a witness no showed). You're a good attorney, I'm sure that's happened MANY times. You really think your client should get the benefit of the prosecution's challenges after trial when they're no longer an issue? Please.

Arguments like that, and the way Rump posed the question, actually do more harm than good. There is NOTHING wrong with a prosecutor requesting and a judge giving a much higher sentence after trial SO LONG as that's not happening for the purpose of punishing an offender for exercising his or her right to trial. The problem is that is difficult to distinguish between the prosecutor/judge requesting/imposing a higher sentence after trial for the right reasons from the ones doing it for the wrong reasons.

Asking the question and discussing it with a broad brush weakens the cause because it's too easy for the State to defend the practice (as I and several others have done) of asking/giving more after trial. Instead, we all need to be vigilant about and focus on prosecutors/judges requesting/sentencing disproportionally (to the offer AND crime) after trial.


Anonymous said...

My beef is when the Court attempts to bully the client into what seems like a decent plea when she doesnt have the benefit of the situation outside of the one paragraph arrest affidavit. Us stupid private attorneys arent given the opportunity to present the case at the report date as there just isn't the time. And then there are a couple / a bunch of attorney's at the SAO who could give a crap about what the defense has to say and thinks we are all liars anyway. "you know, its hard out here for a pimp"...(la la la)

Anonymous said...

David weed still works at the public defenders office yet he is retired. He collects a magnificent pension while at the same time he collects a salary of 125k. And what is his job detail? He started a special division at the office called " out of custody early representation". His offices are located at the Cedars tower along with to Brummers who apparently has a job as a consultant for the office. This is why the gentiles of the office called management the jewish mafia

Anonymous said...


The cases you are citing (without really citing them, BTW) are all in the conext of vindictive sentencing ... situations where someone is resentenced after a reversal or where there is some other FORMAL change. If you can find a case that says that D has a RIGHT to be sentenced after trial to the plea offer, please do post it. That would be remarkable.

While you're at it, could you please quote the verbiage in the Sixth Amendment or the Fla Constitution that so provides? I'm sure you'll claim that it's in one of those pesky "penumbras" or "eminations," but do humor me by sticking to actual text.

Also, do you realize that if your logic was followed, your clients would not get plea offers at all? As of now, your client might get an offer of probation before trial for a crime punishable by five years SP. But, if plea offers are, as a matter of right enforceable after trial, your plea offer would now be two years state prison. That would be necessary if only for the State to preserve the right to sentence defendant to what he deserves, rather than to a discounted, bargain rate.

Put shortly: no more bargains. You really want to go there?

Former ASA said...

The real line is not as easy as either side wants to make it. Clearly some difference between those defendants accepting responsibility and those attempting to evade it makes some sense. Equally clearly, there are cases where the degree of difference is such that the "trial tax" is simply a message to the other cases on the docket.

Most cases are somewhere in a gray area. I recall sitting second on an attempted murder trial in front of J. Knight, well known for his aversion to delay of any kind. Don Ungarait and I announced ready. Our victim had been in contact with the office and was available, we thought, on 30-45 minutes notice.

After voir dire and openings, he had still not arrived. We trotted out the witnesses that we could (EMT who described the injuries, friend who loaned the defendant the gun and was asked, on return, not to say he loaned it out, ballistics match).

Behold--it is almost noon and still no victim. His wife was enlisted and gave us several known girlfriends contact information. We asked J. Knight for a break until morning. He agreed to break for lunch. No help.

Now, the defendant scored 22 with a 3 year MM. Every time we made a "reasonable" offer, the judge gave us another hour. The pleas went down to 17 w/ a 3, 12 w/ a 3, etc. When we had offered and the defendant had rejected a straight 3year MM, we got our last hour. When we still didn't have a victim, we did closings on what had become a decidely weaker case.

J. Knight gave him 27 with a three, not far from the 22 with a three that he was offered pre-trial, but a decided "tax" on the straight 3 he had in hand late in the afternoon.

The algebraic equation might be something like this:

(time "deserved") x (% chance of conviction) = plea offer.

Don't bitch when you play the percentages and then get stuck with the whole package.

Our victim, by the way, was in for a world of hurt with the wife, who learned about another new girlfriend. No charges were ever filed against her.

Anonymous said...

6:54 pm, you hit the nail in the head. I explain the trial tax to my clients telling them that the extra-punishment is not for the crime but for making the judge work afternoons.

Anonymous said...

I just freaking love all the people playing god in here. You get to decide if the client is guilty? You get to decide whether the client should plea? You think persuading your client to plea is ethical and moral?

No wonder the justice system is so messed up.

If more defense attorneys didn't twist their clients arms into pleading and let the cases go to trial than something wonderful is going to happen. The system will get swamped with more cases than it can handle. That's a very good thing.

The Straw Buyer said...

Honestly though, what's worse, the "trial tax" or the scumbag asa's that wait till the day of trial to drop the charges?