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Making the Case for Going to Trial

The Department of Justice reports that in 2011 over 97% of defendants in federal criminal cases pleaded guilty rather than face a jury. There are many reasons for this, primarily the legitimate fear that going to trial and losing in the age of the federal sentencing guidelines can, and frequently does, result in unreasonably high sentences that could have be avoided through pre-trial plea agreements. As a result, clients who believe in their innocence often entertain, and in fact accept, plea offers in order to avoid trial and the unthinkable consequence of being found guilty.

 U.S. District Judge Jed Rakoff’s decision last week in United States v. Rajat Gupta, Case No. 11-CR-00907 (S.D.N.Y. 2011), should remind lawyers that draconian post verdict sentences need not be the norm. In sentencing Mr. Gupta after he was convicted by a jury, Judge Rakoff evaluated Mr. Gupta as a person, viewed the severity of his crimes for what they were rather than what the sentencing guidelines said they were, and settled upon a sentence far below what both the guidelines and the government recommended. While most commentators focused on the judge’s rejection of the government and U.S. Probation’s evaluation of loss as a sentencing determinate, I was equally impressed by the omission of any penalty that Mr. Gupta was called upon to pay for having gone to trial and lost. Not once in his Sentencing Order did Judge Rakoff suggest that Mr. Gupta pay in years or dollars for “putting the government to its proof” or “consuming valuable court resources.” The irony here is that had Mr. Gupta plea bargained with the government, the offer would have been to a guideline sentence, likely between four and six years. Instead, and after trial, the sentence imposed was a reasonable 24 months, a fraction of what the government insisted was appropriate given the temerity of Mr. Gupta to take them to trial.

 It is important that close cases and especially cases of clients who believe in their innocence be taken to trial without undue fear that a whole different set of consequences will befall them if they are convicted. Justice and the Constitution require nothing less. I believe a generation of trial lawyers is being lost as younger lawyers no longer try close cases with the frequency we once did and miss out on the opportunity to hone their skills in the courtroom. It is the rare client who will not seriously consider a plea bargain when informed that the risk of going to trial is a sentence of 10 years or imprisonment or more, which can be severely mitigated through an admission of guilt. Decisions like Judge Rakoff’s in Gupta instills confidence that a defendant can exercise his constitutional rights and still be treated fairly should be lose and have to face a sentencing proceeding. I personally have had the experience of defendants not being punished for having taken a case to trial, but must admit such treatment is the exception rather than the rule. Hopefully judges and lawyers will read and follow the fine example set in the Gupta case.

 The bottom line is that it is our responsibility as lawyers to identify the trial cases and not encourage clients to forego their rights as a matter of convenience or out of fear. In any federal plea colloquy, defendant must represent that he is pleading guilty because he is guilty; we must remain diligent to ensuring that statement is always accurate and not made for the sake of expediency or just to obtain a particular result. The Gupta decision and others like it should remind us of the way it is supposed to be.

 Please note that I have opened my own law firm, Barnett, Bolt, Kirkwood, Long, Koche & Foster, P.A. Our offices are located at 601 Bayshore Blvd. , Ste. 700, Tampa, Florida 33606. I can be reached by phone at 813-253-2020, or by email at

Until Next Time-


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