Since the Judge has so much discretion at sentencing, he or she weilds great power before and during a trial. Many judges impose a “trial tax” or penalty on defendants who decide to force a prosecutor to prove the allegations made. This means a judge will impose a more sever sentence just because a trial was held versus a plea. Some judges will blatantly inform the attorney about a client’s likelihood of getting the “max” if there is a trial and finding of guilty. Others are more subtle but the message is clear to the lawyer who has a history with that judge.
Some judges will make comments during a trial suggesting the case is “not going your way” or “the prosecutor has been presenting a very compelling case.” What the judge is doing is trying to influence the defendant to enter a plea by suggesting a trial is worthless cause.
What we rarely see is a judge who tells a prosecutor how weak his/her case appears in order to get a case resolved wth a plea proposal which would be to the defendant’s liking. A judge never tells the prosecutor he/she will be imposing probation if the jury is so crazy to find this defendant guilty and thereby letting the defendant know there is no risk to going to trial on the charge levied and therefore a prosecutor would be wise to rethink the idea of a dismissal or reduction.
Why is this? Is there a bias against a defendant in the criminal justice system? Do Judges assume a trial is the fault of a defendant? Judge by and large tend to favor prosecutors as every stage of the criminal case management. Our experiences teach us the court system is not a friendly place to the person accused. It is scary and cold place to find yourself. The wilingness to withstand the pressure to plea is hard to find these days. Seeing a judge and prosecutor “team up” against you is frightening. It is no wonder the number of trials in America is falling every year.
It would appear to us these numbers are the result of judges being resistent to trials and “forcing” defendants to consider a plea at almost every turn. The question now is how should this power be restricted so that defendants are not intimidated from going to trial. In the meantime, your odds improve if you have a lawyer with you who has a proven record of going to trial and winning at trial. Historically this has been one way the threats of going to trial as thwarted when a lawyer appears unfazed by the antics of a judge and demands a trial.
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