The Trial Penalty

The Collective Voice of the Defense Bar Must Be Heard

By Susan J. Walsh

Close to four hundred criminal defense lawyers from forty New York counties spoke up on behalf of their clients, their colleagues and the Constitution last year to bring about The New York State Trial Penalty: The Constitutional Right to Trial Under Attack. Your thoughtful contributions from experience, data, heartache and injustice concerning the truth of the trial penalty in response to an initial survey outreach and follow-up interviews by pro-bono volunteers is the foundation for actual and impactful reform. Your participation is demonstrative evidence of the relevance of the voice of the organized bar. It is proof that when we collaborate and combine our voices with action for the collective good, no profession is a more persuasive advocate for reform than the one that includes those who sit in the first chair in the well of the courtroom. And, especially when we combine and speak with one voice, we can move change.

Last February, seventeen members of the Trial Penalty Task Force, with the support of three NYSACDL presidents and the assistance of our national affiliate NACDL, plus the brain and brawn of a talented team of volunteer lawyers from Skadden, Arps produced a ninety page report detailing the role of the trial penalty. The report explains why our state faces a mass incarceration crisis; why bad actors in law enforcement so often act with impunity; and why manipulation of mandatory minimums in the charging process has all but eviscerated the right to trial in New York. The threat of a retaliatory sentence that multiplies the pre-trial offer exponentially after trial has packed our prisons with clients who fear the dreaded trial penalty

and who grab a plea to avoid it. The near zero risk of cross-examination under oath facilitates law enforcement corner-cutting and far worse. Blanket and frequent overcharging designed to tie a Judge’s hands with a mandatory minimum sentence upon conviction, regardless of the defendant’s circumstances, forces the waiver not only of trials, but of motions to suppress and the right to appeal. As the Foreword to the report (authored by former Chief Judge Jonathan Lippman) puts bluntly, “this trial penalty has fundamentally transformed the criminal legal system into a plea system in which trials are nearly extinct.” You know this. And, thanks to your collective voice and participation, so will the rest of New York. On February 6, 2021 the Board of Directors of NYSACDL unanimously adopted the report, drafted and inspired by public defenders, assigned counsel, private practitioners, academics and leaders of the criminal defense bar, as the position of the Association.

The pages of the Report provide detailed true accounts of the trial penalty that defense lawyers know all too well, but about which the public and the legislature must be educated. Examples shared by you of the human toll the penalty extracts, and the compounding social and civic cost for eviscerating the Sixth Amendment Right to a trial, breathes life into the data that demonstrates the penalty is prevalent in New York.

• The first offender father of two, sole financial support to three generations, foregoes trial and accepts a split sentence on weekends not because he is guilty, but because the risk of a mandatory minimum jail term that will financially devastate his family is too great.

• The opportunistic snatch of a messenger bag from a passenger seat by a recidivist in declining health results in an offer of 1 ½ - 3 years pre-trial, who is then hammered with 15 - life as a discretionary persistent felon after trial.

• An armed robber, likely the victim of mistaken identification, is offered 10 years while the jury is deliberating and receives forty years at sentencing after they convict.

• A young man charged with attempted murder offered 17, 15 and finally 12 years pre-trial is then acquitted of the attempted murder charge, and sentenced to 34 ½ years after conviction at trial for assault and weapons possession: 2 ½ years longer than the 32 years the ADA urged.

• A person who declines an E felony plea offer to 60 days in jail and felony probation pre-indictment, and is acquitted of all but a misdemeanor assault, receives the very same sentence after trial on the misdemeanor conviction, before it is overturned and dismissed on appeal.

• A first time teenage offender at liberty on bail for three years pre-trial, after having voluntarily surrendered, for the shooting death of his mother’s abusive paramour on a self-defense theory is offered 9 years pre-trial and sentenced to 25 – life after conviction.

These are the real stories you told and the real penalties you know. These stories reflect those excruciating conversations no trial lawyer wants to have, but every trial lawyer must have with a client – to spare them years of their life in custody. These

are the stories that have yielded our shameful statistic: 96 percent of all felony convictions and 99 percent of all misdemeanor convictions in New York State are the result of guilty pleas.

These penalties, and especially the threat of these penalties, are why a disengaging public forfeits government oversight and law enforcement accountability as jury trials disappear. These penalties are part of why an engaged public takes to the streets when bad actors are never ferreted out of a system that shields them with “Do Not Call” witness lists and hides them from the crucible of cross-examination through the threat of the trial penalty against those who exercise their rights.

These are the reasons your collective participation in bar association work is valuable, necessary and important. These are the reasons we join. Results like this report are the reason we belong.

I hope you will read the report and urge your communities, your representatives and our legislature to embrace our 15 recommendations for reform. Continue to raise our collective voice to eliminate the Trial Penalty and restore trials to our courthouses and justice to the criminal legal system. The word is out.