Lawmakers Need To Look At "Trial Tax"
I’ve never faced the prospect of going to prison. I’ve not sat with a lawyer and been offered a plea deal: Either take the five years the state is offering or go to trial. If you lose trial, you face decades in prison. I’ve never heard my lawyer say that the state’s case is strong, and my defenses are weak. But I’ve brokered many a plea deal and what I see turns my stomach.
No lawyer ever got rich or famous talking about a client suddenly sick with anxiety is in his office. All the swagger goes to those who boast of their trials. We’re gunslingers, right? We shoot to kill.
But good lawyers plea bargain. It’s the dirty and secret world of the criminal law. You counsel a client about the risks of trial. You negotiate with the state in a secret and largely unregulated market. You present clients with choices you hope you will never be required to make for yourself.
It is no surprise to me that some clients cannot make a decision about whether to plea until the very eve of trial. Sometimes seeing the whites of a jury’s eyes makes all the difference: the nightmare suddenly becomes reality. Some clients decide to plea but only when there is no more time to hope for a miracle.
And those clients receive an extra measure of punishment in some courts. Although no textbook teaches this, practitioners know the silent sadism of the trial tax.
A client of mine was taxed the other day in a way I simply find shocking.
His case was set for trial on a given Monday. The charges were serious. The state made a generous offer to spare a child witness the ordeal of the witness stand. For months, the client rejected the offer.
Then, out of the blue, we received a call the Tuesday before trial that jury selection would commence the following day, five days earlier than planned. The state courts operate on a one-hour notice system, so this is not as bizarre as it may sound. On Wednesday, a panel of prospective jurors was in the building.
The client then made a decision. He would plead guilty. His day of reckoning had come. He would accept the state’s offer of five years.
No, the judge said. Five years is not enough now. The client should have accepted that before a jury was summoned. The judge wanted more time now. He wanted to impose the trial tax, a little extra punishment for not being able to make an impossible decision sooner. If the client wanted to plea, it would cost him an extra year of his life. The court would not accept an offer of anything less than six years. Take it or leave it.
This is not justice. Even used car salesmen have a keener moral sense than this. What genius had a jury present five days early? Punishing the client for this is just plain venal.
A journalist I know complained the other day about all the closed-door proceedings in the state courts. What about the public’s right to know? We talked about how different state and federal court practice is. In state court, hours are spent behind closed doors, haggling over souls in a shorthand that would shock the public were it to hear the bargaining. In federal court, all is -- except the secret cooperation deals -- is on the record. Perhaps the journalist should ask for permission to sit in on plea bargaining. Why not? Aren’t the courts open to all?
The General Assembly ought to convene public hearings on plea bargaining in the state courts. It ought to focus on the trial tax. Defendants are routinely punished for going to trial. An offer of two years rejected can easily become a sentence of twenty years imposed if a defendant insists on going to trial and loses. Defendants are punished, as was my client, for not entering pleas in a timely manner, yet state court dockets move spasmodically, when they move at all. Justice is not a sentence imposed to suit the judiciary’s irritable bowel syndrome.
We say the criminal justice system is supposed to be transparent, but no public ombudsman observes the secret doings in chambers, when deals are cut, lives bargained away, and, sometimes, silly and punitive taxes are imposed because a defendant exercises all the rights the law provides. Is it any wonder that public confidence in the courts is low?
Reprinted courtesy of the Connecticut Law Tribune.