Jimmy Dimora needs to read this. There are a lot of important decisions to make in life, but for a criminal defendant, there are few more important than whether to plead or go to trial. Having a felony conviction is certainly not going to enhance your job prospects, but the consequences of a having that conviction result from a guilty verdict after trial are heightened by the probability that your job prospects in that event are going to be limited to making license plates for some substantial period. Four years ago, I wrote a post about the "trial tax," citing research which showed that defendants who went to trial received sentences about three times as high as those who pled. Doc Berman over at Sentencing Law & Policy emphasized the point the other day by noting a story about two men who got 60 and 45 years in prison in a stock-swindling scheme. No sympathy from this quarter: many of the victims, mostly elderly, lost their life savings, and in my book trying to cheat elderly people is maybe one rung up from child molesting. What's notable, though, is that those two went to trial; others involved in the scheme pled, and got substantially less time. Including the former president of the company which ran the scheme, who wound up with five years.
Here in Cuyahoga County, we're at two years plus of the prosecutions for the corruption scandal in county government. One of the main targets of the investigation, Jimmy Dimora, is scheduled to go to trial in January. The other main target, former county auditor Frank Russo, pled guilty a little over a year ago, and received a 22-year sentence. That's a lot of time for a guilty plea, you say, and you're right; Russo, though, had refused to cooperate with Federal investigators. Since then, he's had a change of heart, and is testifying against various other defendants. When the case is over -- and Russo is slated to testify against his former buddy Dimora -- Russo will be resentenced. In the meantime, he's yet to report to prison.
That wasn't an option given to former Common Pleas Judge Bridget McCafferty. At Dimora's request, she set up a pretrial to try to get a settlement in a case involving one of Dimora's cronies. She didn't do much good -- on the wiretaps, she can be heard apologizing to Dimora for not settling the case as low as Dimora had wanted -- but when the FBI came to her door at 8 in the morning and started asking her questions about it, she denied it. She was charged with lying to the Feds, and went to trial. She lost, and although the guidelines made her eligible for probation, the judge made an upward departure and gave her fourteen months. Last month, she denied McCafferty's request to further delay going to prison.
There's another aspect to this, though, as noted in this New York Times article from last week. Because of the passage of mandatory minimum sentences and other laws which substantially increase criminal penalties, prosecutors now have extra leverage in securing a plea. The article highlights the case of Shane Guthrie, who was accused of beating his girlfriend and threatening her with a knife. After he refused a plea offer which would have entailed a two-year prison sentence, and then another one for five years, the prosecutor upped the ante by filing charges which would result in Guthrie's serving life imprisonment if he's convicted.
That's a major reason for the decline in criminal trials. In the 1970's, about one case in twelve went to trial in Federal court. Now, it's fewer than one in forty. The same effect is found in state courts. As the article relates,
The first thing Denis deVlaming, a prominent Florida criminal defense lawyer, does with a new client is pull out a calculator to tally all the additional punishments the prosecutor can add to figure the likely sentence if the client is convicted at trial.
"They think I'm ready to charge them a fee, but I'm not," he said. "I tell them in Florida, it's justice by mathematics."
Well, here's an idea if the red-light cameras don't work. Albany, Georgia, recently enacted a ban on baggy/saggy pants, with fines of up to $200 for repeat offenders, and, as this article notes (h/t to LegalBlogWatch), it's resulted in swelling the city coffers by a cool $4,000. Based upon my own observations in the Justice Center (and yes, I would like to know the thought process by which one concludes, "I should have my underwear showing when I'm being sentenced today"), I think a similar ordinance in Cleveland would allow the city to balance its budget.
See you on Monday, and I'll have my pants pulled up all the way.