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The trial tax debate

Justin Noble lucked out.  Found guilty of sixteen counts of theft and sundry other offenses, the judge told him at sentencing that he'd "wasted this jury's time" with a trial because he "had no defense whatsoever."  "This isn't a case where you had some legitimate defense," the judge said.  "You just took a shot and hoped that the jury was dumb enough to buy some of these nonsensical arguments."  The 12th District said that was sufficient to create the appearance that the judge was imposing a "trial tax," that is, increasing Noble's sentence because he didn't plead, and remanded the case for a new sentencing.

Noble was lucky because getting punished for going to trial happens All.  The.  Time.  And unless the judge is indiscrete enough to say something about it, it'll get a pass.  Last year up here, a defendant was offered a sentence of five years if he pled to a string of burglaries.  His co-defendant, the mastermind of the operation, pled and got nine years.  The defendant insisted on trial, got convicted, and was sentenced to 48 years.  Another defendant was offered a plea with a recommended sentence of between seven and eleven years.  The judge told him that he'd consider judicial release after five and half.  The defendant went to trial, lost, and the judge shipped him for 35 years.

Last week, the Supreme Court heard arguments on whether Malik Rahab is going to get lucky.

In Rahab's case, it began early on.  Rahab was charged with a bunch of theft offenses, and the State offered him a plea with an agreed sentence of three years.  The judge warned him that she "does not look highly on cases where people don't take responsibility and accept that they did something wrong if they're found guilty."  Going to trial meant the sentence would "probably be more."

Go to trial Rahab did, and the judge was true to her word:

I looked at you and said, do you want the three or not.  And you told me, I don't want three.  That's what you told your attorney.  Well, guess what, you lost your gambling.  You did this.  You had no defense, and you wouldn't take responsibility.  You wanted to go to trial.  All right, big winner you are.  Six years Ohio Department of Corrections.

As you might suspect, it's a tad more complicated.  One of the key factors in deciding a sentence is the defendant's remorse, an understandable consideration:  after all, acceptance of responsibility is the key to rehabilitation.  The Federal system is very specific:  you can chop a year or so off your guidelines sentence just by pleading guilty.  Ohio's is more nebulous, but I doubt if there's three judges out of the 34 we have up here who wouldn't consider the fact that the defendant pled.

Another way of saying that is that virtually every judge would consider the fact that the defendant hadn't. 

So, to reconcile all this, the courts have come up with a simple rule:  if the judge says something which could be interpreted as punishing the defendant for going to trial, she has to say that she isn't punishing the defendant for going to trial.  That's it.

The judge in Rahab's case almost cleared the bar.  The judge had also gone into Rahab's juvenile record, which featured double digits in delinquency adjudications.  Still, the judge hadn't said the second set of magic words which would undo the effect of the first.  O'Donnell appeared to be the only one inclined to view things the way the State and Attorney General did, and several justices, including the Chief, French, and Hoover, a sitting judge, seemed to expressly reject it.

So, assuming the case gets reversed, what happens then?  Rahab's lawyer suggested that he'd get a new judge for the resentencing, but that's not entirely clear.  It should happen.  That doesn't mean it will.  But Rahab's certainly not going to wind up any worse, and he stands a chance of winding up better. 

Noble certainly did:  he went from eight years to 18 months on the remand.

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