One of the worst days I ever had in a courtroom took place a decade ago. My client was a young man accused of selling crack cocaine. Police officers testified they saw him hand a small bag to another man and receive cash in return. The cops caught my client; the other guy got away. Shortly after handing his wallet to the police, my client fled, the police said.
An hour or so after this confrontation, my client called the police to report his wallet missing. At trial, his family and girlfriend testified that he was home at the very moment the police tried to arrest the person holding my client's wallet. The jury rejected my client's alibi defense. (Note to practitioners: moms, sisters and girlfriends make horrible alibi witnesses.) My client was convicted. The day he was sentenced, the judge turned savage and sent him away for 18 years. My client's mother was hysterical, and made for the balcony on the sixth floor of the courthouse. She was stopped before she did anything foolish. Her husband, my client's father, watched this unfolding horror in shock until he collapsed with chest pain. He was whisked from the building by emergency service folks. In sum, I lost three people that day, or at least that's how it felt.Eighteen years seemed at the time, and it seems now, like an obscenely long period of imprisonment for a young man with no criminal record. What if he had, in fact, sold cocaine? What if he had, in fact, ran from the police? What if his family had, in fact, lied to try to save him? Are these the sorts of crimes that require decades of imprisonment? Who imprisons big tobacco for the death it deals and the lies it tells to escape responsibility for its actions?I think of this case often because of the story the jury never got to see or even to learn about. You see, the jury was treated like a group of moral imbeciles. The judge told them not to concern themselves with punishment; that was the judge's job. The jury was left to make a decision in a vacuum. Did the defendant commit the crime or not? It is sort of like shopping for art: Comment on the paintings all you like, just don't ask the prices.But here is the real shocker. Prior to trial, my client had been offered a plea bargain: if he would just admit that he broke the law, the court would accept his plea and his prison sentence would be comparatively brief: two years.He was not nine times as bad a young man after trial as he was when the plea offer was made. He did not testify at trial, and if he did not stand up in the jury's presence and call his family liars, which is, in effect, what the jury's verdict did, he can be forgiven that. No one wants prison; prison is a wasting place.My client paid a heavy tax for exercising his right to trial. It is a silent tax all defendants face. It is the tax criminal defense lawyers refer to as the trial tax. This tax is obscene and it is ugly. What's more, it is a lie we never permit jurors to learn about. We mouth platitudes about the glories of our way of life and our guarantee of rights to all. But we're not really serious about these rights. If you choose to exercise them and lose, we will punish you, severely, for wasting everyone's time. My client is serving an extra 16 years for choosing to go trial in a case in which justice at first looked like two years, so long as he saved the state the expense and trouble of a trial. What justice required did not change after the verdict, but the taxman needed his due. We construct elaborate fictions in the criminal courts to pretend that sentencing judges, like the famous statue of Justice, are blind. The judge trying a case is not supposed to know what the plea offer was. This would influence the trial judge when and if sentence is imposed. This is pretty sounding bull dung: Everyone in the courthouse knows that there is a heavy tax for going to trial. The fact that the exact price might not be known by all participants in the sale hardly matters. The tax is real; it is a heavy tax.Lawyers and judges talk about the vanishing trial. Many defendants in fear of the tax plead guilty to something or other. Perhaps there'd be more trials, and fewer pleas to crimes that may or may not have been committed, if the lingering specter of terror were driven away. Why not be honest about the trial tax? Or better yet, eliminate it altogether? Put the plea offered a man before trial in a sealed envelop. If he is convicted, let him be sentenced to the term offered before trial. Justice doesn't change its tune so easily, does it? Or why not let a separate panel review the sentence imposed in light of the plea offered?Purists will say this would undermine plea bargaining. Defendants would have less of an incentive to go to trial if they knew what they were facing. Perhaps. But if we are going to do more than pay lip service to the Bill of Rights and the jury system, perhaps that is the way it should be. Under the current regime, we resort to fear and extortion to persuade men and women to give up rights we claim are precious. The trial tax cheapens the Constitution. We are hypocrites for imposing it silently, and without any pretense of transparency.