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The “trial Penalty” and the Defendant Who Is Likely Not Guilty

Kish Law LLC

Attorneys who, like me, spend most of their time representing people accused of federal crimes know far too well what the academic researchers and writers call the “Trial Penalty.”  This is the well-documented aspect of the federal criminal justice system in which any person with the nerve to stand up to the federal government in a criminal case receives an inordinately huge punishment, or penalty, simply because that person decided to use the Sixth Amendment’s promise of a jury trial.  Here is a recent group of articles in a highly respected journal discussing various aspects of the “Trial Penalty”.

The research is clear.  Trials are down, way down.  Punishments are going up.  But, punishments for the rare few who dare to challenge “the feds” in court are really going up, higher and higher.

While the research is clear, what is less certain is the impact that the Trial Penalty has upon that group of Defendants who likely are Not Guilty.  I say “likely” because only a jury gets to decide who is Guilty or not.  Although that decision is reserved for juries, all lawyers know that there are some cases where the guilt/innocence question is very close.  Experienced lawyers on both sides of the courtroom know quite well that some Defendants are likely not guilty, even if a jury comes to a different conclusion.

I know for a fact from my 37 years of doing this work that some likely Not Guilty defendants have pled guilty to crimes they did not commit, just so they would avoid the Trial Penalty.  There are obviously many reasons why an innocent person would plead guilty: they want to avoid prison, to avoid the cost of an expensive and lengthy trial and appeals process, and they want to end the suffering for their families.  Trust me, it does happen, a person will sometimes admit to something he or she did not do when they balance out their options and decide that the potential Trial Penalty is too big of a risk.

I saw this process earlier this year after a lengthy period during which I represented an extraordinarily honest and highly accomplished member of the Executive Branch of the U.S. Government (I am being purposely vague, so as to avoid any specific description of my real client).  I told my client we should have a trial, for he/she was simply “Not Guilty.”  My client decided he or she  had too much to risk, so the client agreed to the “deal” I negotiated, no jail time in return for a plea to a very minor offense.  When we got to court, even the Judge said the client likely was not guilty.  The client decided to stay with the deal, for his/her evaluation was that it was too big of a chance to leave the future in the hands of an unknown jury.

I have some other matters coming up soon in which I am fairly certain that my clients are Not Guilty.  I am willing to go to battle for these and all of my clients, but the Trial Penalty will always be a factor we need to take into account.  In my opinion, the people who created our otherwise wonderful Constitution would be very unhappy that a man or woman is unduly punished for asking for a trial, a right for which the founders of this nation went to war.

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