Recent Changes in Sentencing Law Make Going to Trial a Reasonable Decision.
The trial of former Orange County Sheriff, Michael Carona, is winding down with little fanfare. As the lawyers for both sides present their closing arguments, speculation swirls around the question of why Sheriff Carona did not testify at his trial. Geoff Mousseau, a consultant who counsels defendants and their families about prison, answered questions about this issue at a meeting.
The main reason why defendants do not testify during a criminal trial, Mousseau explained, is because they think the prosecution has failed to make a case. This is the wrong reason for a defendant to decide not to testify at trial.
People incorrectly expect that a jury will follow the rule that guilt must be proven beyond a reasonable doubt. In fact, juries have become extremely cynical. The notion that juries actually follow this rule, and that someone is innocent until proven guilty, is naïve. Prosecutors rely on the fact that juries improperly presume that defendants are guilty. The improper presumption that juries now have is based on the belief that the government would not have brought them to trial if they were not guilty. In practice, juries place the burden on the defendant to prove his innocence. For this reason, any defendant who chose not to testify because he thought the jury would invoke the proper legal standard of reasonable doubt would be wrong.
Appellate courts perpetuate this legal perversion by upholding convictions based on inferential reasoning. Appeals become an opportunity to review the record to find anything, even an argument based upon an inference, which supports the jury’s guilty verdict. The notion that someone can only be convicted of a crime based on proof beyond a reasonable doubt is thereby reduced to a quaint historical relic.
Instead, there are two other practical reasons why a defendant should not testify at trial.
The chances of overturning a conviction on appeal are minuscule. Those chances virtually disappear when a defendant testifies on his own behalf. Jury verdicts are upheld on appeal, even on the most flimsy arguments. But when a defendant testifies, appellate courts focus on his testimony to suggest that the defendant convicted himself with that testimony.
The other reason why a defendant should not testify at trial has to do with how sentences are calculated.
Because juries are cynically predisposed toward conviction, the chances of prevailing at trial are nominal, whether the defendant testifies or not. Under these circumstances, and considering the detrimental impact on the defendant’s appeal, additional consideration must be given to the negative affect of a defendant’s testimony upon sentencing.
Recent developments in federal sentencing law give greater latitude to trial judges than they have had in decades to fabricate sentences that fit the case before them. However, in every criminal case that goes to trial, consideration must be given to the fact that, if a jury convicts a defendant who has testified, the jury has inferentially found that the defendant committed perjury at trial. This inference applies because the jury did not believe the defendant’s testimony.
This is important because sentences are lengthened if the defendant committed perjury during the trial. Thus, given the fact that a defendant’s testimony is not likely to prevent him from being convicted, a defendant should not testify at trial because he will cause his sentence to be longer than if he remained silent.
This is bad. There really is no good argument for a defendant to testify at trial. Statistics clearly demonstrate that defendants are not going to persuade a cynical jury. And their testimony will be used against them both at sentencing and on appeal.
The question then becomes – why not take a plea deal rather than go to trial?
“Plea deals are being affected by the recent developments in sentencing law.” It used to be the rule that sentences were shorter for those who take plea deals than for those who go to trial, however that may no longer be the case. Recently we have seen a trend, particularly in white collar cases, where sentences after trial are actually lower than plea deals offered before trial. This is probably because the length of the proposed plea deal is based on Federal Sentencing Guidelines. Those Guidelines were extremely harsh and are not necessarily being adhered to anymore by trial judges. If a judge sees something during a trial that convinces that judge that the defendant is less culpable than how he was described by the prosecutors, that judge may give a sentence that is shorter than would otherwise be required by the Guidelines.
Thus, the trial becomes a desperate attempt by defense lawyers to demonstrate to the judge, through cross-examination and in closing argument, that the sentence should be lower than the lowest plea deal offer obtained from the prosecution. They hope to convince the judge that the defendant is less culpable than described by the prosecution, and should therefore have a shorter sentence than requested by the prosecutors. The criminal justice system becomes a glorified gambling hall where the stakes are years in the lives of the defendants.
“Defendants should be disabused of the notion that they can ‘win’ a criminal case. Sure, it happens, however the chances are so slim as to be statistically irrelevant. If you become a defendant in a criminal case, rather than seeking an acquittal, your focus should be on obtaining the shortest sentence possible. If the only plea deal you are offered is still within the range of the Federal Guidelines, you may as well go to trial. Just do not plan to testify.”
Sheriff Carona’s legal team is surely aware of how the recent changes in sentencing law has shifted the way a trial is used. The bottom line is that a trial is not going to be used to prove the innocence of a defendant. Instead, the trial is an opportunity to demonstrate that the court should be more lenient than the Federal Sentencing Guidelines when it comes time to sentence the defendant.
