Oregon DUII defendants are frequently concerned about an increased jail penalty if they lose at trial after rejecting a plea deal.
It is unlawful for a court to “impose a sentence that is longer than it would have been had [one] not exercised the right to go to trial or not utilized a defense that was inconsistent with owning up to his misdeeds.” State v. Fitzgibbons, 114 Or App 581, 586 (1992). “[C]ourts must not use the sentencing power as a carrot and stick to clear congested calendars, and they must not create an appearance of such a practice. * * * [T]he record must affirmatively show that the court sentenced the defendant solely upon the facts of his case and his personal history, and not as punishment for his refusal to plead guilty.” 114 Or App at 586-87 (quoting State v. Smith, 52 Or App 681 (1981), and United States v. Stockwell, 472 F2d 1186, 1187 (9th Cir), cert den 411 US 948 (1973)).
Fitzgibbons reversed a 10-day jail sentence for harassment based in part on the judge’s commentary “that negotiated pleas are based upon whether or not someone is willing to accept responsibility for their behavior and talk to the Court about that behavior and move on with their life or whether they wish to go to trial, they wish to contest it. Those are two different mind sets. I’m dealing with two different people, I’m dealing with two different situations. That’s what I’m looking at. I’m not looking at a penalty for a trial.” 114 Or App at 585-86. The Court of Appeals found sentencing with those considerations was, in fact, a trial penalty. Id.
Reversal was similarly required in State v. Qualey, 138 Or App 74 (1995):
“From my perspective [defendant], you traumatized [the victim] twice: Once was on the day of the incident, and the second was putting him through this court hearing here again. That was a choice you made after lots of reflection, [and] after plenty of opportunity to consider the alternatives * * *.”
After the court conveyed the terms of defendant’s sentence, defendant’s attorney questioned the motivation behind the sentencing decision:
“It sounds as though part of the sentence being imposed is because [defendant] exercise[ed] his constitutional right to have a trial. He is being penalized because he asked for a trial, and the District Attorney felt compelled to call the witness.”
The court responded:
“[Defendant] is entitled to exercise his rights. He is not insulated from the consequences of doing that when it harms other people and there are viable alternatives. * * * The District Attorney offered him Assault in the Fourth Degree and no jail time prior to trial, and [defendant] decided to roll the dice and gamble. That involved not only him and court time and you and the D.A., but it also involved the witnesses, including a small child * * *. That was a decision [defendant] made and he is not insulated from the consequences of that simply because he had a constitutional right to make that decision.”
138 Or App at 76-77 (emphasis in original). Reversal was required – trial penalties simply impermissibly burden and chill a defendant’s absolute right to her day in court.
Point being: it is unlawful for a court to issue a harsher punishment to an Oregon DUII defendant who loses at trial than to a defendant who enters a plea without trial. That’s because trial is a right — not a license, or a privilege. One cannot be punished for exercising a right. Otherwise, it’s not a right at all.
There are two scenarios where I risk more jail by going to trial: (1) where the DA makes a plea offer that dismisses charges (especially more serious charges — particularly if they’re Measure 11); or (2) where the defendant testifies. Scenario 1 is self-explanatory. Scenario 2 happens because some judges propose that if a defendant testified, yet a jury found them guilty, the jury must have believed there was lying in the court. For that reason, among many others, it’s often a better idea in DUII trials to not testify or offer additional evidence. Now that more DUIIs are videotaped, I find less reason to call clients as witnesses at trial — because they’ve said everything important on that video, on the night of the arrest. And in a case where you don’t testify, the judge instructs the jury: “A defendant has an absolute constitutional right not to testify. Therefore, a defendant’s decision not to testify cannot be considered as an indication of guilt. It should not be commented on or in any way considered by you in your deliberations.”
My experience with juries (including being on a jury) leads me to believe that jurors honor and follow those instructions. They want to follow the law, and they will enforce the Constitution. Juries are a great bulwark against the accusatory power of the state — a power that, unchecked, can destroy lives based on raw accusation.
AFTERWARD
This blog post was — surprisingly to me — probably our firm’s most controversial. Most comments on Facebook came from defense lawyers defending judicial practice in their locality of punishing people for exercising their right to trial. Some of the posters took a “federalist” bent, arguing that a trial penalty is perfectly OK in federal courts. The argument forgets that we have state law right on point — and we don’t get to federal law until we deal first with state law. We are not dealing with a blank slate, with no state law decision.
The case is Fitzgibbon, cited above. What follows is a portion of the trial judge’s impermissible commentary that resulted in reversal for re-sentencing: “And you know and I know that in Federal Court that negotiated pleas are based upon whether or not someone is willing to accept responsibility for their behavior and talk to the Court about that behavior and move on with their life or whether they wish to go to trial, they wish to contest it” (emphasis added). In other words, the Court of Appeals has met this “federal sentencing” argument, and said: NOT HERE. If you can be punished for exercising a right, it is no right at all.
