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February 3, 2015

NACDL seeking examples of federal cases impacted by "trial penalty"

Through some of my work with folks at the National Association of Criminal Defense Lawyers, I have learned that NACDL is now, as part of its Trial Penalty Project, actively seeking examples of the “trial penalty” federal defendants often face as they consider whether to exercise their right to go to trial based on the great discrepancy between post-trial sentences and those offered in the plea process.   Human Rights Watch issued a report summarizing extensive statistical and anecdotal evidence of this trial penalty focusing on federal drug defendants, and NACDL is working toward producing companion report focusing on the trial penalty in federal cases not involving drug prosecutions. 

NACDL seeks, via a simple on-line survey, help in collecting examples and data for use in the report. NACDL is interested in examples such as (1) cases where a defendant after trial received a far more severe sentence than had been offered during plea negotiations; (2) cases where a defendant pleaded guilty principally because of a fear that any sentence imposed after trial would be dramatically higher than the plea offer; and/or (3) cases where defendant(s) convicted at trial received disproportionately severe sentences given their culpability as compared to co-defendants who pleaded guilty.

If you know of a federal case that fits these categories — or that otherwise reflects the “trial penalty” federal defendants often face in non-drug-offense settings — please take a few minutes to complete the online questionnaire at the NACDL website.

February 3, 2015 at 12:25 PM | Permalink


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Let me offer an example of the so-called "trial penalty" from federal criminal case. My friend Bill Swinford and I spent almost 5 years getting habeas corpus granted (the 2255 Motion was filed in November 2009) in the E.D. of Ky. and the Sixth Circuit for our client, Dr. Ali Hadi Sawaf. In 2000, Sawaf was sentenced to 20 years in prison (the statutory maximum sentence pursuant to 21 U.S.C. section 841(b)(1)(C)) for prescribing narcotics without a medical necessity. As the Sixth Circuit found in its June 30, 2014 opinion in "Sawaf v. United States", the Doctor had received ineffective assistance of counsel at plea bargaining, when his young (3 years out of law school) defense lawyer advised him to turn down the Government's 41-month plea bargain offer. Counsel failed to advise Sawaf that if he was convicted at trial, he would face U.S. Sentencing Guidelines of at least 235 to 293 months (with a 240 month statutory cap). Upon conviction, Sawaf received a sentence of 240 months. Defense counsel was unaware of Sawaf's Guidelines exposure, since had never previously handled a Federal criminal case and did not own a copy of the U.S. Sentencing Guidelines Manuel. Sawaf served more than 13 years of his 20 year sentence before the Sixth Circuit reversed Chief U.S. District Judge Karen Caldwell, and Ordered her to grant habeas corpus relief upon remand. We made a motion for Bond, since it was clear that Judge Caldwell would have to release Sawaf from prison, but she never ruled on the Bond Motion, for 3 months. Instead, she had Sawaf brought from a Tennessee prison back to Federal court in Lexington, Kentucky in chains, and on September 24, 2014, Judge Caldwell re-sentenced Dr. Sawaf to "time served". Afterwards, the U.S. Marshals would not permit Sawaf to leave the Federal courthouse in his green prison jumpsuit. I had to take his family to WalMart, to buy Sawaf shoes and a suit of clothes before the U.S. Marshals would permit him to leave the Courthouse. Sawaf, now age 73, is presently serving 3 years of Supervised Release, which we will apply to terminate early, after he has served the required minimum of 1 year.

Posted by: Jim Gormley | Feb 3, 2015 2:03:07 PM

Almost all of the inmates on the Life for Pot web site went to trial. These are all nonviolent marijuana inmates whose sentences were enhanced because they did not have or accept a plea. Their co-defendants all received much shorter sentences or no sentence. It is a universal phenomena. These inmates all had no violence in their case and no violent priors.

Posted by: beth curtis | Feb 4, 2015 12:13:51 AM

Another way of looking at this is to consider the cases in which there is little or no trial penalty other than the loss of acceptance of responsibility. Plea bargaining changes markedly in such cases, as the only issue is whether the government can prove their case.

Posted by: Fred | Feb 6, 2015 12:02:53 PM

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