Tigano’s Seven-Year Itch

When the Second Circuit Court of Appeals dismissed with prejudice the indictment in United States v. Tigano for a seven-year delay in trying the case, during which Joseph Tigano was detained, there was applause but little commentary. The opinion, recounting his adjournments, read like a series of unfortunate events, each one of which could be explained or questioned, but happen in the ordinary course of a case.

It was the totality, that added up to seven years of delay for a guy who kept demanding a trial, that took the case over the top. To add insult to injury, it was a marijuana case, which was still very much illegal despite the societal amnesia of the wonderfully woke Obama years.

A vision of the case has now developed that provides an explanation for what happened to Tigano. Jeffrey Bellin at Slate explained.

While the appeals court and subsequent media portrayals suggest that prompt trials are the solution to cases like Tigano’s, the real fix is long-delayed, bipartisan sentencing reform. That is because the problem in Tigano’s case was not neglect, but a 20-year mandatory-minimum sentence that loomed over every decision in the case.

That was the problem?

That is why the attorneys and lower court judges in Tigano’s case overlooked the speedy trial rule. They were not neglecting Tigano. They were, instead, repeatedly delaying his case—to the point of ordering three needless mental competency examinations—in the hope that Tigano would agree to a plea deal. With 20 years on the horizon, everyone, including Tigano’s own attorneys, could put up with an otherwise unconscionable delay that would ultimately be deducted from his eventual sentence.

Bellin has some mad mind-reading skillz. This isn’t to say that the 20-year mandatory minimum isn’t outrageous, or that Tigano’s demand for trial raised questions of his competency to stand trial, given that he had thrice confessed to the 1400 pot plants seized and had no trial defense whatsoever. His choice, to refuse a plea and essentially force the court, after his inevitable conviction, to add what likely amounted to a decade to his sentence for no purpose at all, was still his choice. It may well have been irrational, but it was his.

But that doesn’t explain seven years away. The same scenario could just have easily played out in a year. It doesn’t take a mandatory minimum-driven conspiracy to explain the seven year delay.

Clark Nelly at Cato took this mandatory minimum hook and hitched it to the “trial penalty.”

Indeed, one of the prosecutors told the trial judge that the rationale for a third evaluation was “not necessarily the competency question, but whether there is some other psychological problem that’s going to prevent [Tigano] from understanding the difference between what he potentially looks at as far as a conviction as well as what’s being offered by way of this plea.”

Translation: We are going to crucify this guy if he insists on going to trial, and only a crazy person would pass up the sweetheart plea deal we’ve offered him.

There is a purity to trial, where the machinery of justice plays out in full view, for better or worse. For many, the notion of plea bargaining is dirty, undermining the demand that the government prove the guilt of a defendant beyond a reasonable doubt. And, if one doesn’t worry too much about any individual defendant’s life, the theory is correct.

But we’ve screwed with the machinery already in a great many ways. Mandatory minimums are one. So too the sentencing guidelines in federal and some state courts. Add in the use of conspiracy counts to bring in a wealth of evidence about others to taint the guy in the defendant’s chair.

Then there’s testimony, which tends to serve defendants poorly on their best day, and goes south from there when they have a prior conviction or “bad acts,” a deficient education or too fine an education. The list of bad things goes on and on, and most of it happens for no better reason than the prosecutor says so, to which the judge is duty bound to nod in agreement. Not that the judge necessarily wouldn’t even if he had a choice.

But blaming mandatory minimums as the problem makes for a decent argument against them, but fails to show an adequate understanding of the dynamics of a criminal case. Whether we call it the “trial tax” or the “plea discount” is a matter of perspective. For the guy in the can, the only question is when, or if, he will ever see his kids again.

Even when a defendant has a possible defense, it’s never fun to sit in the airless attorney-visiting room talking to a guy in an orange jumpsuit about his risk tolerance, explaining the Guidelines, explaining how real trials happen, explaining how his cross will happen and the possibility of an obstruction enhancement, how juries tend not to be anything like the ones on the TV. Even an innocent defendant has to decide for himself whether the risk/reward ratio makes a trial worth it.

Tigano? He had nothing. He had no defense. He confessed three times. That doesn’t mean he didn’t have a constitutional right to a trial. He did. But the price of going through the motions was ten years* of his life. Even if there were no mandatory minimums involved, there would be a price for going to trial. There always is. Who gives away ten years of their life for a dog and pony show when you already know how it ends?

Did this decision show that mandatory minimums are a terrible influence on the exercise of a constitutional right, both to go to trial as well as the right to a speedy trial? Sure it does, but that’s just one of many influences that destroy a person’s life. And if a defendant chooses to take an extra dime to go to trial, it doesn’t take seven years to make the decision. Most lives get burned in mere seconds, and then the machinery of the legal system does its job.

As it turned out for Tigano, his seven-year delay was the very thing that saved him from himself, from the system. Had this series of unfortunate adjournments not happened, we wouldn’t know his name and he wouldn’t be out.

*This assumes the plea offer, which is unknown, was ten years.

4 thoughts on “Tigano’s Seven-Year Itch

  1. Richard Kopf


    Having sat through more than a few slow-motion guilty pleas (jury trials with no plausible defense and intransigent defendants refusing to take advice from “public pretenders” busting their asses to save idiots from themselves), the truth is: shit happens.

    The hand-wringing of the silver bullet seekers who have never smelled holding cells rank with the smell of urine will never understand how uninformed they are about the real world. Trench lawyers do their very best to help morons overcome their almost deranged fantasies. Sometimes those lawyers succeed and sometimes not.

    Again, shit happens. It is no more complex than that.

    All the best.


    1. SHG Post author

      Shit happens can be very complex, if we want to make less shit happen. But whether it’s possible to convey the thousand moving pieces of a criminal case to those who’ve never enjoyed that whiff o’ urine remains a mystery. Stercus accidit is far easier to fix when it can be reduced to “the real problem,” provided the thousand other “real problems” don’t get in the way.

      1. Richard Kopf


        Of course, I support the A2J movement. I do so long as it works exactly like this:

        A suited attorney sits behind a desk in a resplendent office. “You have a pretty good case, Mr. Pitkin,” remarks our learned friend. How much justice can you afford?

        All the best.


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