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copy of Wilson v. State from our battered briefcase right after the State says something like "the plea offer is withdrawn and the State is seeking the max sentence after trial."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.