Feb
03

Judge Wins Pissing Contest

The public at large rarely gets a glimpse behind the curtain of justice, and thus can’t appreciate the ugly reality of the criminal justice system. Sadly, defendants are often punished for relying upon the very rights we say we revere. Nowhere is this more evident than in imposition of what defense lawyers call the “trial tax.”

Among the rights guaranteed to a person accused of a crime is the right to present a defense, and the right to a public trial. Defendants enjoy a presumption of innocence. Indeed, jurors are sometimes told that the presumption of innocence alone is enough to acquit a defendant if the state cannot prove its case beyond a reasonable doubt, the law’s highest, and most demanding, standard.

These rights are guaranteed to all. No one is supposed to be punished for relying on them.

But few are the defendants who go to a full jury trial. Almost all defendants enter guilty pleas to avoid trial. The United States Supreme Court reported in a decision several years ago that our criminal justice system is really one guilty pleas, not one of trials. On both the state and federal level, well over 90 percent of folks charged plead guilty before trial.

That’s not to say that all these folks are actually guilty. The law permits a sophisticated conceit to allow those claiming innocence to plead guilty — Alford pleas.

 

These pleas take their name, as does so much else in the law, from the name of a party whose case was appealed all the way to the Supreme Court. In 1971, the high court upheld the practice of permitting folks to hedge their bets by pleading guilty even if they don’t think they are in a case called Alford v. North Carolina.

It works like this: Upon entering a guilty plea, your lawyer informs the court that the plea is an Alford plea. The judge then asks the defendant if he is pleading guilty even though he disagrees with the state’s case, but because he understands a jury might convict him if the case were to go to trial. In exchange for the Alford plea, the client is, presumably, offered a better deal, or outcome, than he would get if went to trial and lost.

In fairness, the federal courts in Connecticut rarely accept such pleas. Federal sentencings are governed by a point-driven system. Defendants are supposed to enter pleas of guilty only if they agree that they are, in fact, guilty as charged. A “straight” guilty plea, one without the insulating effect of an Alford statement, is worth points off the guidelines calculation, and can reduce a prison sentence.

Watch a federal sentence hearing some time if you dare. It is a tedious, soul-destroying affair. Clients stand by dazed as argument flies about all the variables in the sentencing cookbook. All’s that missing is a crier to shout “Bingo” when the final number is announced.

But as tawdry as the work of justice is in the federal court, what passes for justice in the state courts is far uglier. What’s more, the public rarely gets a glimpse of actual plea bargaining in the state courts: deals are typically cut in judicial chambers, with only lawyers, and not even the clients, present. Results are announced in open court.

But the public does a glimpse of the goofiness from time. It was on display not long ago in one of the state’s larger cities.

A man faced serious charges. The state was willing to reduce them and offered him a five-year prison sentence. The client balked, and the case was called for trial. The five-year offer was withdrawn

Urban legend has it that the state offers increasingly better deals the longer a defendant holds out. I’ve heard more than one defendant say, usually after consulting some jailhouse lawyer with more mouth than sense, that the state makes three offers, each better than the one before. I don’t know where such silliness comes from.

If convicted, the man faced a maximum sentence of many multiples of the five-year offer. On opening day of jury selection, the client opted to take the five-year deal.

The client, his lawyer and the prosecutor then appeared before the presiding judge in the courthouse. By convention, each courthouse has such a creature — I liken them to the folks in an airport control tower: They don’t hear cases that go to trial they just control the traffic.

But these judges wield great power. They can approve or disapprove a plea deal.

“No deal,” the judge told him. Yesterday’s five-year offer was now Monday’s seven-year deal. Nothing had changed, other than the fact that the judge wanted to send a message to other defendants: Take the deals you’re offered when they are made. Waiting will cost you.

The client rejected the seven years.

The next day, however, the defendant appeared in front of the judge. His intention was to accept the seven-year offer.

“No deal,” the judge said. That was yesterday; today the offer was eight years.

There’s a reason Lady Justice wears a blindfold; watching this charade would make her sick. Even the state was prepared to let the client plead first to five, then to seven, years.

The defendant held out for trial. He ran his line of defenses until there was no place else to go. Then he tried to accept what the court had once concluded was fair, just and reasonable.

One gets the impression that the judge and defendant were involved in some childish test of will. Of course, the judge wins such contests. But justice isn’t supposed to be a game.

Will taxpayers really be forced to endure the cost of trial, and, if the client is convicted, the expense of housing him for decades because the judge wanted to prove a point?

In cases where clients are punished more severely for insisting their rights are respected, we’re all at risk of abuse. The judge, it appears, just loves imposing a trial tax.

Related topics: Journal Register Columns
Comments
No comments yet
For Display:
What color is the ocean?
Confidential:
(Won't be displayed with comment)

Link must be approved, then will show on this page.

x

About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

Personal Website

www.normpattis.com
www.normpattis.com

Law Firm Website

www.pattislawfirm.com
www.pattislawfirm.com

I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

Disclaimer:

Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

Pattis Video