The National Trial Lawyers
Expertise 2020
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Your Honor, May We Approach the Bench?

Your Honor, May We Approach The Bench?I belong to a nice health club. Just by looking at me, you wouldn’t get the impression that I actually work out, but I’m a member. I’ve got that going for me. It does make me feel better to buy memberships and healthy things.

Have you ever seen that guy that’s always working out, yet never seems to make any progress? That’s me. As an “in shape” friend once told me–you can’t outrun your mouth.

Anyway, back to the gym. Inside the men’s locker room we have a hot tub, a cold plunge, a steam room, a sauna, and tons of showers. All of which is just to say that we need lots of towels. The problem is, some guys don’t pick up after themselves. Dirty towels everywhere. Shocking, I know.

Now, there are some really great guys working in men’s locker room, making sure the place is clean and bringing us a constant supply of fresh towels. These workers are the nicest folks you’ll ever meet, and they work for peanuts. The least we could do for these guys is pick up after ourselves. Its common decency, really.

On one recent occasion (which is why I’m writing about this), a fellow gym member must have had five towels on the floor. He then packed up his things to leave, making no attempt to pick up after himself. Another member gently mentioned to him that the towel deposit bins are just a few feet from where he was standing. As you might expect, the towel offender was having none of that, snapping back “I pay enough dues every month, and that’s not my job.”

Actually, our health club requires members to pick up after themselves. That is a member’s only job outside of paying the monthly dues.

At some point, we have all worked with someone who simply will not do their job. Sure, they show up to work. Sure, they answer their phone. To an outsider, nothing looks amiss. But everyone working with them–the people who know exactly what they should be doing–we know that they’re not really doing their job.

Speaking of people not doing their job, what defense attorney rant would be complete without mentioning judges?

What should judges really be doing up there? To find out, let’s take you deep inside the criminal courtroom, for an all too common scenario.

Here are the basics. Someone is accused of a serious crime. This happens thousands of times a month. Later in the case, the accused decides he doesn’t like the prosecutor’s plea offer. Again, this happens thousands of times a month.

What happens next?

Well, this is America. You can have a trial by jury. But, losing at trial carries steep penalties, often more painful than the prosecutor’s plea offer. Yes, I know you’re not supposed to get “punished” for going to trial, but that’s the reality of the situation. That being said, there is another option (lots of other options, but for purposes of this article, we’re going to focus on just one basic option). Defense attorneys are permitted to ask the judge for plea sentencing options. Sentencing, after all, is the job of the judge (in case you didn’t know).

The problem is, there’s a few judges out there that don’t want to do their job. Some of these judges will even tell you that if you don’t like the prosecutor’s offer, that’s what a trial is for. Technically, there’s an ounce of truth to this, much in the same way my fellow gym member is correct in saying it is not his job to pick up after himself.

For those judges who will not participate in plea negotiations, the funny thing is, these judges will eventually tell you what their sentence is going to be–if the jury’s verdict is guilty. By then, this judge has wasted the jury’s time, wasted the clerk of court’s time, and wasted several deputies time (I’m sure I’ve left out a few people here, sorry). Yes, a trial will force the judge to do his job and reveal a sentence for the offender.

Refusing to participate in plea negotiations is a fairly chicken-shit stance. To be fair, these judges could simply be lazy. Or, it could be a purely political move. Judges, after all, are elected officials who don’t want their name all over the evening news when a defendant violates probation by killing someone. The news coverage would sound something like this: “Soft-on-crime Judge Jones placed this killer on probation when the prosecutor wanted prison. The victim would be alive today, but for Judge Jones probationary sentence.” You get the idea.

For those wonderful judges who are willing to do their job and participate in plea negotiations, what are the limits of such a discussion? Today, I’m going to explain these goings-on via the recent case of Forman v. State 2017 Fla.App.LEXIS 14881 (Fla. 2nd DCA 2017).

Forman went to trial on an aggravated battery charge. Halfway through the trial, the state was having problems with a witness, so the defense attorney invited the judge into plea negotiations during the lull in the trial proceedings.

For those of you who have been to court a time or two, you’ve probably seen the attorneys approach the judge’s bench. You may have wondered what the heck they were talking about. That very same thing happened to Forman. His attorney and the prosecutor approached the bench and discussed plea options. This bench conference was done off the record. To the defendant and the trial spectators, there’s just a lot of whispering at the bench. At the end of all the whispering, the judge offered Forman the bottom of his sentencing range, 6.3 years in prison.

An off-the-record bench conference can be legal under many circumstances, but not for plea negotiations. Forman’s plea negotiations happened contrary “to the directive in State v. Warner,” which held that “a record must be made of all plea discussions involving the court.” 762 So. 2d 507, 514 (Fla. 2000). Yes, this is the Sunshine State. Everything is public record.

It bears repeating that the judge offered Forman 6.3 years, and Forman received a 25 year prison sentence after losing his trial. Do you see the problem here?

25 years is significantly more than 6.3 years. On its face, a significantly harsher sentence after trial is known as judicial vindictiveness.

Was Forman’s sentence really vindictive? No. Not necessarily. The fact that Forman received a 25 year sentence after being offered 6.3 years carries only a presumption of vindictiveness. Here’s how this works. Let’s say the judge knows all the facts about a case, and then offers 6.3 years in prison. No problem, yet. If the accused rejects the judge’s offer and loses at trial, the judge already knows all the facts of the case and should impose the same 6.3 year offer. No problem imposing 6.3 years after trial. But, any sentence above 6.3 years would be vindictive. Unless, of course, different facts come out at trial than what were disclosed during negotiations, all bets are off.

For example, assume the judge is told during plea negotiations that the defendant kicked the victim while he was down. Then at trial, it is revealed that the defendant kicked the victim twenty times while on the ground, breaking some ribs. At this point, the judge can give the defendant 25 years without it being considered “vindictive”, because these details were not disclosed at the plea conference.

In Forman’s case, the problem is that we don’t know what the judge was told at the off-the-record plea conference, because the plea conference was “off the record”. Often, what the judge hears in plea negotiations is far more optimistic than the facts that come out later at trial. In the example above, I wouldn’t have mentioned 20 kicks to the gut, I may have explained that my client was trying to get away, taking normal strides forward, and the victim’s stomach happened to be in the way of my client’s natural stride.

If we had a record of what the judge was told in order to reach Forman’s 6.3 year offer, we would compare those facts to the facts disclosed at trial. If the judge heard the same facts at trial as he did at the plea conference–the sentence would be vindictive. We just don’t know. Either way, the appellate court had seen enough here to warrant sending the case back before a different judge for resentencing. We’ll have to wait and see how the new judge handles this.

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