The Trial Tax And Cancer: Stonum's Concern

Lee Stonum called me on a point that is worth pondering in a comment yesterday about my post wondering whether good lawyers can learn from good doctors. The premise of that piece was an analogy between cancer and a criminal charge: In both cases, professionals help those dependent upon them to manage risk. Central to the task of both lawyers and doctors is the management of hope and expectation in the face of catastrophe.

Lee's point disconcerted me. He so quickly found a fatal flaw in my analogy that I went about my chores yesterday (it was Saturday, and there are only so many days left in the Summer; I've plenty of outside work to get done before winter, and I worry that I cannot it all done) with a heavy heart and a spinning head.

Facing trial is not like facing cancer for the simple reason that, unlike cancer, a trial is the product of deliberate human will and conscious deliberation. Cancer occurs, whether the proximate but indirect result of human conduct, e.g., the use of pesticides. A trial is the result of a decision by prosecutors to single out a person for some real or imagined violation of the law. What's more, in a criminal prosecution, a judge is charged with the responsibility to see that the parties are treated fairly. There is no role analogous that of the judge in the oncologist's word; a doctor faces forces at once darker and more oblique. The law boasts of transparency; the physician struggles against opaque and primitive forces.

This is nowhere so evident as in the case of what criminal defense lawyers call the trial tax, the iron fist hidden beneath the Bill of Rights's velvet glove. As Stonum points out, there is a great risk in the criminal justice system that lawyers counsel guilty pleas in cases in which clients are either overcharged or actually innocent in order to avoid the punitive hammer that comes of holding the state to its burden of proof at trial. The trial tax, an opaque factor looming forever in the background, betrays the law's promise of transparency to be a farce.

Consider the following: Police observe a suspicious transaction between two men. As the officers walk toward the men one flees; it appears as though something was tossed as the man fled. The remaining man hands police officers his wallet on request. He, too, then breaks free and runs, escaping. The police still have a wallet, however. The officers find small bags of crack cocaine in the area where things appeared to be thrown.

An hour or so after this confrontation, the owner of the wallet calls the police station to report his wallet stolen. When officers go to the home of the man reporting the missing wallet, they recognize him as the very man who fled their custody. He is charged with possession with intent to sell crack cocaine and related offenses.

During plea negotiations the state offers the man two years to plead guilty to lesser charges. The man rejects the deal, and the case his tried. His father, sister and girlfriend testify he was at home with them at the very time officers claim to have stopped the man. It is a case claiming mistaken identity and alibi.

The jury convicts the man. His sentence? Eighteen years in prison. The tax imposed for going to trial was assessed at a rate of 900 percent! (The sentence was so severe the man's mother headed for a balcony on the courthouse's sixth floor after sentence was imposed. As her husband watched this, he collapsed with chest pain.)

In retrospect, I am sure this young man and his family wish that he had taken the two-year offer. The case was tried a decade ago; the man is still behind bars. Hindsight is 20-20.

But what of foresight? What is the lawyer's role? Stonum describes the process he goes through of counseling clients facing hard choices. But that process works best with clients possessing the intellectual and emotional resources to make candid judgments about their prospects. Some clients and families cannot face these decisions any more than a cancer victim can frankly assess their odds. Hope, perhaps like free will,  is a necessary illusion.

I am troubled by the trial tax. I wonder, really, whether there ought to be something like binding high-low offers on the criminal side. The practice of setting upper and lower limits on recovery in civil arbitrations is common: Parties agree to avoid the risk of a zero-sum game by agreeing that recovery can fall within a given range. Why, if we value the Bill of Rights and the presumption of innocence as much as we say we do are we not engaged in imposing limits on the trial tax? When lawyers counsel clients about the punitive nature of claiming the rights all defendants are guaranteed something is wrong.

I hope Stonum sees this post. I would like to advance the discussion here. I concede the trial tax is a real and present danger to defendants seeking to resolve their case. And lawyers too timid to try cases will easily quake in the face of harsh offers, thus encouraging the state to overcharge and engage in legally sanctioned extortion. The system fails if lawyers are unwilling to try cases. I wonder, finally, whether there ought not to be due process limitations on the trial tax.

There is something fundamentally wrong with the practice. Good lawyers need to acknowledge the reality of this silent killer of Constitutional hopes and dreams; it adds a layer of complexity to our counseling of clients that physicians do not face.

Comments: (5)

  • Before I represented him, a client went to trial o...
    Before I represented him, a client went to trial on a count of murder and attempted murder for shooting a father and a son who invaded his back yard guns in their hands. The attorneys learned that the jury had decided to acquit on the murder charge but were still undecided on the attempted murder charge. At that point the prosecutors offered the client time served with a couple years probation if he pled to reckless homicide. The client turned it down. The jury acquitted on the murder charge but hung on the attempted murder charge.
    Leading up to the retrial, when I represented the client, the best offer the prosecution would make was aggravated battery, which carries a sentence of 6-20 years. In conferences in the judge's chambers the judge made it known to me, in the course of encouraging me to encourage my client to plead to whatever the prosecution was offering, that he knew about the prosecution's offer at the previous trial and that my client could have been out of jail months ago. (Ex parte communications between the prosecution and judges are notoriously business as usual in that county.) After the second jury convicted my client of attempted murder, that same judge sentenced him to 45 years. Talk about a trial tax.
    (Fortunately the court of appeals overturned his conviction, ruling that the judge should have granted my pre-trial motion to dismiss by reason of collateral estoppel. However, the AG has petitioned for transfer to the supreme court, and we should hear any day whether they're granting or denying the petition.)
    Posted on August 22, 2010 at 5:37 am by John Kindley
  • This comment has to be broken up into 2 parts due ...
    This comment has to be broken up into 2 parts due to length limits, sorry.

    Norm, I hope you're being hyperbolic about your day being ruined yesterday. I think analogies are useful to help us think about our practice through a different prism and the analogy did that. All analogies have their limitations.
    The issue of the trial tax and how openly it is wielded as a hammer against defendants both by DAs and judges is despicable. Routinely, a judge or a DA will make me an offer that I balk at and their quick response is, "what do you think your guy is going to get after trial?"
    The other problem I see with the trial tax, that I hinted at yesterday, is it means problems with the state's proof become ways to mitigate a sentence and too rarely issues to litigate at trial. For example, I had a client charged with a stupid chickenshit street robbery and a gang enhancement (which can potentially increase the sentence on a strike offense like robbery by ten years). The DA's initial offer was 2 years, low term on the robbery and strike sentencing on the enhancement. The problem was, he didn't do it. The ID was weak, the blood they found on his short that he told the cops was from a nosebleed and that they thought would match the victim's DNA came back to my guy and he had SOLID alibi witnesses (he was at a funeral so there were a bunch of people who didn't know him and had no reason to lie for him who could place him there).
    I implored the DA to dismiss the case, but the best she would do is offer a non-strike, credit time served offer. I think many defense attorneys would have told the client to jump on such an offer. I begged him to reject it.
    "How much longer would I be in?"
    "2 months to get to trial."
    "Will I win?"
    "You've got a great case, and I cannot see a jury convicting you on this, but obviously I can't guarantee it."
    "How much will I get if I lose?"
    "Could be three, could be thirteen and there's no real in between."
    You can figure out what he decided to do.
    The other problem arises in the case that is overcharged. Say I did 3 of the 4 things I'm charged with. The offer is to plead guilty to all 4 for 5 years, but if I go to trial to beat the one count that I'm innocent of, I get 10 years on the remaining 3 counts.
    Posted on August 22, 2010 at 5:50 am by Lee Stonum
  • I don't want to ignore the benefit of the trial ta...
    I don't want to ignore the benefit of the trial tax. Constitutional right or not, not every case should go to trial. Its extraordinarily expensive and time consuming. If a judge taxes someone who went to trial with no issues when a reasonable offer was made to resolve the case, I am not gravely offended. The problem is, the tax is not reserved for those cases.
    I think your trial lid proposal is unworkable in the sense that it takes the bite that is needed in some cases out of the trial tax. In a perfect world, a judge would not impose a trial tax where there were legitimate issues that didn't go the defendant's way or where a jury acquitted on ANY count. There are judges who act in this manner, bless them, and take into account what the state's offer was and if they find the defendant had legitimate reasons for going to trial won't depart too far from the pre-trial offer.
    In practical terms, what should we as defense attorneys in individual cases do about this? I think its important that the trial judge be aware of the pre-trial offer and understand why the defendant has rejected it and is going to trial. I also think your Due Process argument deserves further consideration and will try to raise and preserve this issue the next time I'm faced with an absurd trial taxation.
    By the way, I know people will jump on me for suggesting that the trial tax is appropriate for the defendant who goes to trial simple because he can, because it is his Right. I'm aware, but as in all other areas of life, there are consequences to doing things that inconvenience others simply because one can, and as a practical matter, I don't have a problem with this.
    Also, the thing I haven't addressed here is your concern that my process only works with client's who are intellectually and emotionally capable of processing the kind of information they need to make a decision about whether to accept a plea or go to trial. I haven't addressed it because right now, 6 years and 50 trials into my practice, I am still completely clueless as to how to deal with these clients. I have one right now. I don't want to talk to much about a pending case, but suffice to say he faces life there is a 0.0% chance a jury would acquit him of anything and his response to his 8 year offer, which is a gift, is that he might as well do life if he has to do that much time. I don't know what to do with a client like that. I've talked until my face is blue. He either doesn't believe me or doesn't want to. Do I wait him out? Do I play chicken and let him see the white's of the jurors eyes? In misdemeanors, my trick used to be to go talk to these kinds of clients in the tank loudly so that the hardened felony guys would hear and join me in convincing my confused misdemeanor client. I don't know that there's anyone this guy would listen to. Like I said at the outset of my comment yesterday, ultimately its his choice, but I simply can't fathom enabling such a terrible decision as going to trial on his case
    Posted on August 22, 2010 at 5:50 am by Lee Stonum
  • "...the trial tax is appropriate for the defendant...
    "...the trial tax is appropriate for the defendant who goes to trial simple [sic] because he can." Who is to say? How do you know, Lee? I suppose O.J. Simpson would have been well-advised to accept a plea?!? Ha! Methinks you're obfuscating and blowing smoke.
    And: " process only works with client's [sic] who are intellectually and emotionally capable of processing the kind of information they need to make a decision about whether to accept a plea or go to trial." Here we go again! Who is to say who is 'intellectually and emotionally capable of processing the kind of information' THEY NEED to MAKE A DECISION? That's just weird! It looks to me as if you unwittingly put yourself into a position of playing God. That is not very nice, and I disapprove.
    Repeat after me: Separation of Church and State!?! Don't feel bad; it would not be the first or the last time some member of the judiciary, some member of the bar, 'played God'.
    Here's an anecdote from someone who was at the receiving end: My (lady) judge, at Sentencing, called into question my own mentality and emotional stability, WITHOUT any lifetime record of such issues anywhere, without a professional examination, without a diagnosis, without a record of any treatment, nor any of the above ordered. And without any PERSONAL knowledge of me, my lifestyle, my life accomplishments, my background or family history, I might add. She just blurted it out in open court for all to hear. A 21st Century public Inquisition and Hi-Tech Lynching of someone with no priors in 58 years. Weird! Weird! Weird! I think she had a hair 'crosst her a$$ that day.
    This was nothing short of slander and public humiliation beyond belief and beyond the call of unbiased judicial duty.
    Not to worry, it's in the transcript! I love transcripts. Very few attorneys, judges or anyone else seems to want to read them however. Folks live to suppose, conjecture and presuppose for some strange reason. It's the Amerikan way.
    In the cases above, where YOU say your client has 0%, I suggest, you would not put yourself beyond professional reproach, if you overrode him and his 'misguided' desires--as long as you're playing God. Do him a favor! It would not be the first or last time an attorney did or said something in court that was not authorized by the client. It would not be the first time an attorney 'sold' his client 'out'. Yes, that happened to me at trial as well. (The defense attorney lady said something I did not authorize her to say, something that was completely false and muddied the waters as far as I was concerned,... my two-week jury trial in CT over issues which never should have been brought to the criminal court and cost the taxpayers $100,000 in wasted monies. What a racket!?!)
    Meanwhile, the State is unable to PREVENT or SOLVE real crimes, and--I might add--real criminals get away. My own real-life trial-tax fiasco is posted below on a previous trial-tax essay. The so-called trial tax may in fact be the single biggest, most pressing concern of the judiciary today--or should be--a story which has yet to be picked up by the N.Y. Times or The New Yorker. Maybe WaPo will break the story first? We already know these 'news' organizations do not read the blawgs. Too difficult. Ha!
    Posted on August 24, 2010 at 12:08 am by William Doriss
  • At the sentencing in the case I addressed in my pr...
    At the sentencing in the case I addressed in my previous comment, the prosecutor got offended and objected when my co-counsel mentioned "in open court" the offer to time-served my client had turned down before the judge sentenced him to 45 years. Maybe part of the solution to the trial tax problem would be to explicitly make such offers admissible and a relevant factor at sentencing.
    Posted on August 24, 2010 at 2:19 am by John Kindley

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