Government Misconduct Blog – Federal Court Refuses to Penalize Exercise of Constitutional Right to Go to Trial

by Barry Pollack

Much attention has recently been given to the unfair leverage prosecutors may have when “negotiating” plea deals because of the potential of enormous differences in penalties for those who choose to exercise their constitutional rights to go to trial.  The United States Attorney for the District of Massachusetts, Carmen Ortiz, has been criticized recently for the use of such leverage by her office, specifically as it relates to the apparent suicide by a defendant who had to choose between either a guilty plea through which he could avoid the risk of jail time, or contesting the charges and facing the potential of decades in prison.

Yesterday, a Massachusetts federal court released a sentencing transcript that reinforced the right of individuals to go to trial without facing any “penalty” for doing so, sometimes colloquially referred to as “rent” of the courtroom for a trial.  Prior to the trial in this criminal securities matter, the government offered the defendant and his co-defendant a “package deal,” which required a plea of guilty to one count of criminal conspiracy, which carries a 5-year maximum term of imprisonment.  The package deal also required a minimum recommendation of incarceration to which defense counsel had to adhere.  The co-defendant, who was a former CEO of a publicly traded technology company, accepted the deal and received a sentence of 60-months incarceration.  The other defendant, who was the former CFO, went to trial.  The court granted a Rule 29 motion that acquitted the defendant on one count of aggravated identity theft, but the CFO was convicted on the securities fraud-related counts.  At sentencing, the court’s loss findings resulted in a sentencing guidelines range of 292-365 months and, because many of the charges carried 20-year maximum terms of imprisonment, the risk was real.

Nevertheless, finding it necessary to avoid burdening the constitutional right to trial, the sentencing court imposed a sentence about 20 years below the guidelines range, specifically 60 months, while recommending placement in the RDAP program for alcohol abuse, which should help the defendant get out of jail in less than 3 years.  The court rejected the government’s efforts to obtain an increased sentence based on a so-called “scorched earth” defense that the judge described more aptly as “vigorously [defending the case] within professional limits.”  The result is obviously life-altering for the individual.  The analysis altered the leverage that prosecutors often have to force guilty pleas because of the disproportionate downside of exercising a constitutional right to go to trial.

Below is a pertinent passage from the sentencing transcript:

“There is, of course, embedded in the Sentencing Guidelines a concept of acceptance of responsibility. It is, as I indicated from my perspective, a Faustian bargain made by the Sentencing Commission in recognition of practices that have developed, but frankly I am indifferent to it in making my own judgment about what the proper sentence should be.


That brings me, finally, back to the larger question that I started our discussion with this afternoon, which is should the system of justice, the grinding mechanisms, be so concerned about their own efficiencies that in a pretextual form they burden the exercise of the Constitutional right to go to trial? I do not believe they should, and I have tested this sentence against that, asking myself am I making this choice in some fashion because of Mr. Fields’ decision vigorously to defend his case, vigorously but within I think professional limits, not in an effort to harm other persons by pursuing his case? I think that my sentence does not do that, that is, it does not burden it.

But I look at it, of course, from the other side. Am I then attempting somehow to demonstrate that it did not make any difference because the same sentence imposed on Mr. Latorella is imposed on Mr. Field? The answer to that is no. I return to my view that the sentence I imposed on Mr. Latorella was not the sentence I would have imposed if I had discretion. So, I have considered this in this larger context.

There is much discussion, more discussion of late, about the process of negotiating pleas. It was heralded by the Supreme Court last term. It has agitated the public mind more recently in this District. It is something as to which one would hope for greater public understanding about the respective roles of defense counsel vigorously to represent their clients and prosecutors to uphold their version of the law.

But, ultimately, they are adversaries. The resolution has to be with the judge. The judge has to make the decision, not doing a high-low and saying, well, the Government is over there, the defendant is over here, I will be in the middle and people will think I have been moderate, not by embracing one side or the other, not by making decisions on the basis of perceptions that that there has been misconduct … by the defense by being too, to use a phrase of the Government, “scorched earth” in tactics….

Those kinds of things are not part of the calculus.

The defendant does not go free or even get a benefit from some demonstration of misconduct, nor does the defendant get somehow punished because his counsel has been particularly vigorous.

The short of it is, as I have said, I have tried to consider all of the factors in this case in a fashion that calibrates, as best I can, the respective responsibilities of the several parties involved here that I know most about in the development of the case, and I come to the decision that there should be a period of incarceration of 60 months.”