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Nothing Crazy Except The System

gavel on a wooden table

Joseph Tigano’s encounter with the legal system is not a story of justice miscarried; that is too much of an understatement. It is a tale of serial abuse by a self-serving system run amok.

The first assault on Tigano’s rights was the focus of a recent article in The New York Times. Tigano and his father, Joseph Tigano Sr., were charged in 2008 with marijuana distribution after agents of the Drug Enforcement Administration discovered what they described as a “hydroponic marijuana grow operation” on the younger Tigano’s upstate New York property, reportedly including more than 1,000 plants. The Times went on to describe the series of events that led to a seven-year delay between Tigano’s indictment and his trial.

The Sixth Amendment guarantees Americans the right to a speedy and public trial in all criminal prosecutions. Ample case law demonstrates that Tigano’s lengthy pretrial incarceration violated this standard. In the 1972 case Barker v. Wingo, the Supreme Court established that courts should consider four factors in determining whether a defendant has been prejudiced by the lack of a speedy trial: the length of the delay; the reason for the delay; the time and manner in which the defendant asserted his right to a speedy trial; and the degree of prejudice to the defendant caused by the delay.

Not only was the length of the delay extraordinary in Tigano’s case, but Tigano himself repeatedly insisted on his right to a speedy trial over the course of his seven-year wait. Yet Tigano’s insistence reportedly struck his first lawyer as so unusual that he had his client take a mental competency test over it – the first of three exams requested by two separate attorneys prior to trial. Other delays sprang from multiple judges waiting on one another’s opinions, needlessly slow plea negotiations and, at one point, a court reporter who filed a transcript almost four months late. While the descriptor “Kafkaesque” is sometimes overused, it is hard to avoid invoking it in Tigano’s case.

The U.S. Court of Appeals for the 2nd Circuit recently issued a strongly worded opinion dismissing all charges against Tigano, noting that his case appears to represent the longest trial delay that court had ever seen. The court had freed Tigano in November. In its full opinion, released last week, the 2nd Circuit described Tigano’s seven years of pretrial detention as “egregiously oppressive” and suggested it should be a “ceiling, rather than a floor” for future Sixth Amendment rights analysis.

But lost amid this travesty is another gross miscarriage of justice, which is the actual sentence that was imposed before the appellate court subsequently threw it out.

Father and son were accused of the same crime. Tigano Sr. pleaded guilty in 2013; he was sentenced to time served, which at that point was five years. Tigano, in contrast, exercised his right to a jury trial. He was convicted and received a mandatory minimum 20-year sentence. This for growing a product that, as I write this, is “legal” in some form under the laws of 30 states, including New York, where the crime in question occurred. Of course, growing marijuana is never properly legal in the U.S. because of the status of federal law, but the discrepancy between the sentences of father and son is all the more egregious considering the conflict between state and federal laws regarding to what degree a crime occurred at all.

The Times reported that Tigano did consider following his father’s example and accepting a plea deal. This is hardly surprising when some legal experts have argued that innocent defendants may be better off seeking a plea deal than facing a jury, even without the extraordinary delays Tigano faced. But even the bargaining process was fraught with delay, and Tigano ultimately decided to hold out for a trial – a decision he had a perfect legal right to make, if one that eventually yielded a much longer sentence after several additional years of pretrial frustration. Yet continuing to insist on a trial was enough to trigger Tigano’s third mental competency exam.

When the price of exercising a constitutional right is the risk of a draconian punishment, that right has been infringed. So far, however, the courts have failed to recognize this. It is fair to conclude that this is because the courts are generally more interested in protecting themselves from what they would see as an unmanageable caseload than in protecting the rights of the citizenry against undue government pressure.

In real life, if the courts were doing their job, the result would be the opposite. We would likely see fewer criminal prosecutions for relatively minor offenses, or legislators would respond by balancing the costs and benefits to society of enacting criminal statutes that must be enforced and for which defendants must be afforded a speedy trial. We can have all the prosecutions we want, if we want to hire enough prosecutors, legal aid lawyers and judges to try them. Or we can encourage guilty pleas by guilty parties by lowering maximum penalties for specific crimes.

What we should not be doing – what the courts should not be permitting – is imposing severely disproportionate penalties merely for requiring the government to do what the Constitution demands before it can put someone in prison for a felony conviction. When exercising a constitutional right calls an individual’s competence into question, it is the system has gone crazy.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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