A Sick Trial Tax
The perversity of the trial tax was on display the other day. My client was facing potential decades behind bars, and, as the jury was being selected, he reconsidered his decision to plead not guilty. We went to the prosecutor to negotiate. He held firm on a prior plea offer previously rejected, so we asked to see a judge.
“What’s changed?,” the judge asked. “Normally, offers only get better if something changes. Maybe a witness becomes unavailable or something else weakens the state’s case.” The prosecutor chimed in: “My office doesn’t change plea offers by making them better once they have been rejected.”
Diane Keaton once put it best when confronting similar such nonsense: “Well, Lah-dee-dah.”
I didn’t really need a tutorial in the posturing in which the court engages to justify imposition of a trial tax. The tax, rarely publicly acknowledged, goes something like this: Insist on asserting your rights, each and everyone of them, including the right to a trial by jury, and you will be punished if you are found guilty. Experienced lawyers all have a tale or two to tell about the guy who rejected an offer of a year or two in plea bargaining only to be swatted with a couple of decades of time after losing trial.
The trial tax is a sick and unconscionable joke imposed by hypocrites.
In theory, the criminal justice system is supposed to be driven by the presumption of innocence. Unless and until the state can prove its allegations beyond a reasonable doubt, a defendant must be regarded as innocent. The presumption of innocence is a complete defense to a case. You can hold the state to its burden of proof by asserting the presumption. A person cloaked in this presumption is within his or her rights to delay against the hope that the state’s witnesses will lose interest, disappear, or otherwise become unavailable.
This is especially so in Connecticut, where trial dockets move at a glacial pace due to our idiosyncratic and wasteful method of selecting juries. Individual sequestered voir dire means that it will take three or more days to pick a jury even in the most routine case. Delays of a couple of years in getting a case to trial are routine. Delay is a weapon for the defendant.
So a court system desperate to move its docket strikes back. Engaged in the sordid ethos of the used-car lot, defendants are offered inducements to give up their rights, to plead guilty, to go to prison: Plead guilty now, and you will go to prison for less time than if you are convicted.
This logic has nothing to do with the traditional purposes of the criminal justice system: it does not involve specific deterrence, punishment or rehabilitation. The only general deterrent function it serves is to send the silent message that those who are not prepared to waive constitutional rights will be punished. Maybe this is why there is no plea bargaining in some European countries, and why sentences there are uniformly lower than in the United States.
So the other day, when a judge asked why my client should get a better deal than the one he had previously rejected now that jury selection had begun, I was not surprised. “What has changed?,” the judge asked.
“My client is now willing to waive fundamental rights,” I said.
The judge didn’t scoff, but neither did he appreciate the significance of the client’s change in heart. The man presumed innocent was now willing to deal. He had played all the cards he had. His deck was empty. The judge could not see that. All he could see was the state’s position: Unless the state’s case had weakened or changed, he was not willing to budge.
It was a sad and chilling spectacle, a jurist so wedded to the trial tax and the bogus imperative of docket management that he could not appreciate that in a criminal courtroom it takes two to tango. The only beat that mattered appeared to be the one tapped out by the prosecution.
Is it any wonder that the criminal justice system is regarded as suspect by so many?
Most judges play lip service to the notion that a deal once rejected is gone forever. In most courthouses in this state, the trial tax is a fetish that can be defeated in the name of justice. But in a few courthouses, the elevator of justice stops well short of the top floor. It is painful to watch proceedings in these courthouses. All the right words are spoken, but they ring hollow: You could just as well be negotiating the price of a used car as the value of man’s life.
Reprinted courtesy of the Connecticut Law Tribune.