Skip to main content

Judges Matter

Decisions, decisions, decisions. From the time someone finds out they have been indicted or will be indicted there are new decisions to me made every day. Which lawyer should I hire? How will I deal with the stress? What do I tell my friends and family? Should I take a plea deal? Should I change careers? There are no shortage of decisions that need to be made during this time and each one can have lasting ramifications. Similarly, there are decisions made by others that can have an effect as well. Those decisions are generally made by the prosecutors and will include issues such as whether to indict or not, which charges to seek, and what kind of deal they wish to offer.

Ultimately, however there is one variable that is left completely to chance and yet may have the the greatest impact on not only how to proceed with a case but on the outcome of the case as well. It will even influence a decision as to whether to take a plea. That variable is.....the judge. I am not going to pretend to understand the system but the system by which a judge is choosen to preside over a trial is by some sort of lottery or rotation. In any event, from the perspective of the defendant, it is random and it will influence how the case progresses and the decisions that are made.

The first variable that will come up is the pace at which the case moves along. Some judges are happy to give the sides as much time as they need until a mutually acceptable trial date is chosen. Other judges like to move their cases along. It is important to point out that judges get paid the same amount whether a case goes to trial or if it gets resolved. To put that in simple terms, the more cases that get plead out, the less they have to work. Furthermore, if a judge does not have to preside over an actual trial, there is no chance that his decisions at the trial will get scrutinized on an appeal. For this reason, it would seem that judges are happy to wait around to avoid having to preside over a trial. On the other hand, some judges like to clear their calendars and move trials along. For a defendant, whose strategy may be delay, delay, delay, this is not the judge to get! Nevertheless, a defendant with one of these judges will generally have to get his affairs in order faster than someone who has a judge who is not is such a rush.

Each judge has his or her own sentencing tendencies. Remember that sentencing has two components; the maximum per count and a guideline range determined by the crime committed as well as a host of other factors that go into the Pre-sentence Investigation Report. Some judges, if a defendant is found guilty at a trial will stick to the guidelines applicable to the charges. Remember, that the counts in an indictment are usually much more severe and carry harsher sentences that the counts in a plea deal. There are some judges who will simply hand out the maximum allowable sentence if a defendant goes through trial and pleads guilty. There are other judges who are more liberal and lenient when it comes to handing out sentences in spite of a guilty verdict at trial. If a defendant has a judge who tends to not be overly lenient following jury trials, he will often have to give more serious consideration to taking a plea to avoid the risk of a high sentence following trial. Some judges are easy on some crimes but tough on others. It is important to be mindful of all of these facts, and hopefully the defense attorney involved knows enough about the judge so as to advise his client because it is a variable that needs to be taken seriously.

Even when it comes to sentencing the judge matters. There are some judges who view the sentencing phase is almost a mini trial and there are some for whom it is merely a formality. For a defendant who has taken a plea, he needs to be cognizant of these two types of styles. If he has a judge that is willing to give a full hearing, and who has a history of being lenient on white collar crimes, then the strategy is pretty simple. In that scenario, the defendant will simply show sincere remorse, and have his lawyers argue for a variance from the guidelines which in simple terms will mean that they will list the reasons for the judge to consider to give a sentence below what the guideline calls for. On the other hand, if the the judge is not inclined to go below the guideline or be interested in a full blown hearing, it is best to come to a joint recommendation with the prosecutors as to how much much prison time he is willing to serve. There really is nothing to be gained by asking for a downward variance as the judge is unlikely to grant it. Doing so would simply force the prosecution to argue for a harsh sentence and a defendant may end up with a harsher sentence that he would with an agreement.

Finally, there are some harsh judges. Anyone who has spent time in the system knows someone who is sitting in prison for longer than they would absent that judge. These judges' reputations precede them and any defense lawyer would know who they are. If they give variances it is generally to go above the guidelines and not below them. These judges pose the greatest risk when it comes to going through a trial. By the same token, there are judges who are notoriously lenient, especially when faced with a defendant who was willing to plead guilty and accept responsibility for his actions. It may seem counter-intuitive, but, if the goal is to end up with as little prison time as possible, a defendant should give more consideration to taking a plea when a lenient judge is involved. This is especially so when the judge has a record of going below the guidelines.

Another, albeit relatively minor issue to prepare for when speaking of judges is the issue of voluntary surrender or even remaining free on bail pending appeal. Most white collar defendants, whether they plead guilty or are found guilty are given time-anywhere from a month to a year in some cases-to surrender to their designated prison. This allows them to get designated to a prison rather than have to languish in a detention center while waiting to be designated and then have to potentially be transported in less than ideal conditions to the prison itself. For most defendants, this gives them time additional time to get certain affairs in order following the sentencing. Other judges, are not as flexible and will remand a defendant to custody immediately from sentencing. If a defendant gets one of these judges, as I did, he needs to make sure more things are in place before sentencing. There really is nothing a defendant can do about this but the knowledge does allow for him to prepare. The judge will, in all likelihood, make clear his policy at the time a defendant pleads guilty.

There is no point stressing over outcomes that cannot be controlled. This is true from a criminal defendant and holds true when dealing with any of life's difficult situations. The key is to be able to understand those outcomes and act accordingly. The outcome of who will be the presiding judge in a criminal case is no different.




Comments

Popular posts from this blog

Jew Haters Be Gone!

I try not to get angry. There are a few reasons for this but I have come to realize than getting angry produces few if any tangible results. However, I am not perfect (shocking, I know) and when I see blatant hatred stemming from ignorance and self righteousness I do get angry. I am not naive. I know anti-semitism exists and have come to accept it. I no longer get angry when I see other races making the most ridiculous and incorrect statements about Jews. I just do not care. However, what does anger me to no end is when I see the same type of anti-Jewish rhetoric coming from within the Jewish community. I am well aware this is completely off topic when compared to my other entries, but I do think that as I write it, a message that transcends religion and the underlying theme of anti semitism will emerge.

Last week I wrote about the release of Rabbi Sholom Rubashkin. I spoke about how happy I was to see him reunited with his family and how in many ways he was a true hero. That is my op…

The Defendant Is Hereby Remanded To Custody- My First Day In Prison

The marshals will escort the defendant. Scarier words had never been spoke to me.
October 26, 2015. Exactly two years ago today I was sentenced to 30 months (later reduced to 20) in prison. As luck would have it, I was blessed with a judge who does not believe in voluntary surrender. In other words instead of arriving at a prison camp like 90% of those who plead guilty to a white collar felony, I was escorted by the US Marshals service from the courtroom in front of family and friends who had come to support me. Not exactly my finest moment.

In many ways it is a day that I will never forget yet, paradoxically, my memory of that day is more dream like as though I was watching a Broadway show as a member of the audience when in reality I was the star. Even now, two years later it seems as though my sentencing hearing was yesterday and not so long ago. Ultimately, I spent under 11 months in actual custody, 4 months in a halfway house and two months under home confinement. Obviously, in h…

RUBASHKIN

People are connected. I am not talking about personal relationships with friends and family. Often times we are connected to people we do not even know.  This can be through any sort of medium such a race, religion, professional affiliation of political affiliation. Even though we do not know each other, we are "connected".  As a Jew, I feel connected and sympathize with the plight of another Jew in distress even if I do not know him. The African American community came together to protest what they viewed as widespread discrimination by law enforcement even though 99.9% of those protesting had never even met or heard of the perceived victim.

Life experiences also bond people. There is a bond that exists between those of us who have had the unfortunate experience of going to prison. It is a bond that transcends race and religion. When we can we help one another both inside and outside and always hope for our friends to be released and be successful upon their release from pr…