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The Supreme Court takes a look at the trial tax

There are any number of horror stories about the trial tax.  There was the case involving the defendant who'd participated in a string of house burglaries.  His co-defendant, the mastermind, such as it was, of the operation, pled out and got a 9-year prison sentence.  The judge told him he'd get five if he pled guilty.  He didn't.  He went to trial and was convicted.  The judge sentenced him to 48 years in prison.  The court of appeals affirmed.

Then there was the guy who was accused of child rape.  The prosecutors offered him a deal with an agreed sentence of between seven and eleven years.  The judge told him that he'd consider judicial release, which would make him a free man after five and a half.  The defendant turned down the deal, went to trial, and was convicted.  The judge sentenced him to 35 years in prison.  The court of appeals affirmed

The Supreme Court's decision in State v. Rahab could have clarified the law on the "trial tax."  It didn't.

That's probably a good thing.

Rahab was charged with burglary -- he had reached through an open window and stolen a purse that a woman had left lying on her kitchen table.  The state offered him a deal with an agreed sentence of three years, but he wouldn't take it.  He was convicted after trial, and the judge gave him six.

Here's the law:  a judge can't punish a defendant for exercising his constitutional right to trial; that's vindictive sentencing.  (The same way that giving a defendant a longer sentence after a successful appeal can be viewed as punishment for exercising his right to appeal.)  A judge can, however, take a defendant's lack of remorse into consideration in determining a sentence.  A presumption of vindictiveness can arise if the judge says something indicating that she was punishing the defendant for trying the case.

If that's a blurry line, the judge did just about everything possible here to cross it.  When the judge learned of the plea offer at a hearing before trial, she flatly told Rahab that "the Court does not look highly on cases where people don't take responsibility and accept that they did something wrong if they're found guilty."  Casting subtlety aside, she continued, "You understand that?  Meaning [the sentence] would be more.  I'm not going to fool you.  You understand?"

And that was before trial.  After Rahab was convicted, the judge minced no words in handing down a six-year sentence, twice the plea offer:

He went to the trial with a prove-it defense. He had absolutely no defense. They had his fingerprints. He gambled, he lost. I'm sorry, you know right from wrong, but it just does not -- it's like, yeah, now that it's all over, oh, I'm sorry I got caught, I'm sorry I got--I went to trial and I lost. Too late. Too late. To me, too late.

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.

The opinion in Rahab finds "more concerning the court's statement that Rahab had put the victim through the trauma of a trial. The sentencing court is to consider how the defendant's criminal conduct -- not his exercise of constitutional rights -- impacted the victim."

Not concerning enough, but in fairness there's merit to the opinion's observation that the judge had additional information to consider in imposing sentence.  Chief among them, no doubt, was that Rahab had reached the tender age of nineteen while accumulating no fewer than twenty-two prior delinquency adjudications, including one for robbery.

The money quote from the opinion is this:

We hold that there is no presumption of vindictiveness when, after trial, a court sentences a defendant to a longer term than was offered by the state in plea negotiations. An appellate court may reverse a sentence for vindictiveness only if, after review of the entire record, it finds clearly and convincingly that the sentence was based on actual vindictiveness.

Except it's really not a money quote:  only French concurred in DeWine's opinion, with O'Connor, O'Donnell, and Kennedy concurring only in judgment. Judge Hoover of the 4th District, sitting in place of Fischer, who'd been one of the appellate judges who'd heard the case, recused himself, wrote a dissent, joined in by O'Neill, which pointed that whatever the information the judge had at sentencing she sure didn't have at the time of the plea hearing.

While the fact that DeWine's opinion didn't get majority backing is some comfort, it's a slim one.  I had one of the two cases cited at the top of this post, and I spent some time researching the trial tax issue.  There are some decent cases out there, some with reversals for comments that fall short of what the judge did here.  But they're few and far between; while you'll get some obligatory language about how the judge can't penalize a defendant for going to trial, actual vindictiveness will rarely be found. 

And Rahab isn't likely to change that.  Basically, the court came two votes away from holding that unless a judge specifically says, "The only reason I'm sending you to prison is because you exercised your constitutional right to trial," vindictiveness isn't going to be found.  But given the vagaries of "remorse" and the myriad other factors that enter into sentencing, coupled with trial judges' general unwillingness to get into the weeds and distinguish between a majority opinion and a plurality opinion, I don't think those two votes are going to make much difference. 

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