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.


Jailers as Sinners

Odds are, you have never visited someone imprisoned for life, or for many decades. Prisoners are outcasts, beloved, if at all, only by their families; remembered, if only periodically, by their lawyers. We give them numbers and then forbid their jailers to get too close to numbered souls.

Prison is our effort to create a hell, or, at the very least, a purgatory, here on Earth.

May God forgive us our trespasses.

This past week, the United States Supreme Court gave fresh force to a commonplace enough observation: juveniles sometimes do stupid, even horrible, things. Yet, they often can, and do, blossom into something more than product of their worst moment.

It is cruel and unusual to sentence juveniles to life without possibility of parole, except in rare cases of utter depravity. This insight is of the sort that should offer as many as 2,500 individuals a chance at freedom before they die.

The Eighth Amendment prohibits cruel and unusual punishment. Several years ago, the Court ruled that mandatory life sentences imposed on those whose crimes were committed when they were juveniles violated that prohibition. The conclusion was based in part on emerging studies that show that young folks are different, as a matter of neurological circuitry, than adults.

As a result of this ruling, sentences for juvenile crimes will henceforth be different. But would this new rule benefit those already sentenced? In other words, would the ruling have retroactive effect? Typically, new rules of law are not applied retroactively, in order to avoid chaos. Among the crown jewels in a judge’s crown is finality — nothing pleases quite so completely as a case closed, a file sent to archives.

But some changes in the law are so fundamental they require retroactive application, if we are to do more than pay mere lip service to the idea of justice. Our treatment of juveniles, the Court ruled in a 6-3 decision, requires retroactivity.

The case involved Henry Montgomery, who, in 1963, killed a Louisiana lawman. That was more 53 years ago — a lifetime. Is Mr. Montgomery never to be offered the chance to demonstrate that one of the goals of imprisonment — rehabilitation — has been satisfied?

The Court’s ruling requires not that Mr. Montgomery be released, but that he be given the chance to argue before a parole board that he should be released from prison.

Every criminal defense lawyer shares with the mythological figure Charon the task of ferrying people across the river Styx — the divide separating the living and the dead, the free and the imprisoned. In the moments before judgment is imposed, a man is free. Then, in an instant, a judge imposes sentence, and the man once free is ushered into darkness.

It should be a requirement that every citizen attend these sentencings. Indeed, jurors ought not to be shielded from the consequences of their decisions, as they are in Connecticut. A verdict of guilty often carries tragic consequences involving years, sometimes decades, sometimes a lifetime, in prison. We call this justice, but it is not 

The Supreme Court got it right, of course, in holding that juveniles are different, and that a rule requiring they be given a chance to rejoin society should have retroactive effect. But why stop there? Isn’t it time to revisit what we do to adults in the name of justice?

President Obama is making criminal justice reform a priority in his last year in office. I suspect this is the only time an elected official can afford to call out the collective madness that supports our rage to incarcerate. No one can now punish the president or his party in an election.

I’ve said it before, and I will say it again: We call ourselves the land of the free, but we have the highest incarceration rate of any nation on Earth. We have 5 percent of the world’s population, but 25 percent of the world’s prisoners. We imprison folks longer here than anywhere else for their crimes. Let’s acknowledge the irony in this the land of the free.

The president is calling for a review of mandatory minimum sentences. Great idea. There’s a call out to reconsider imprisonment of non-violent drug offenders. Another great idea. We need also to focus on mental health treatment, and meaningful opportunities for parole for all prisoners.

There are some crimes so vile, and some offenders so vicious, that a lifetime behind bars may be the only solution that will satisfy a community. I think of the Cheshire murders of the Petit family in this way.

But in the overwhelming majority of criminal cases, something less than pure evil is at work. Ordinarily, crimes are the acts of ordinary people doing extraordinarily stupid things. Crime is a species of sin, a form prohibited by lawmakers.

Need I remind you that all have sinned — you, me, the lawmakers, and the courts?

The Catholic Church has much to teach on the topic of sin. One form of the Mass has the priest recite with the congregation that he has sinned: mea culpa, mea culpa, mea maxima culpa.

As an institution, the Church has sinned: I think of the Inquisition, its persecution of Jews, its venality — a failure so systemic it created a protesting, or Protestant, backlash.

But still, the Church remains an instrument of grace. It teaches that sin consists of the overstepping of boundaries.

Let me be so bold as to suggest that we have sinned in our creation of penal colonies in our midst. We sentence young and old to lifetimes of despair, forgetting the power of grace to transform a life. Who are we to make these lifelong judgments?

“Let him who is without sin cast the first stone,” Jesus is reported to have said when an angry crowd faced off with an adulterer.

His audience at least had the sense, or was it the self-awareness, to feel shame. We feel nothing, and stone the sinners in our midst as if we were gods consigning people to the hells of our own creation.

At least the Supreme Court has an intimation that this wickedness must cease. Were I a praying man, I’d be on my knees in hope that others will soon also hear the sound of grace at work in the world.


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.

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


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.

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