Thursday, March 23, 2017

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.




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