In his recap of the 2012 Supreme Court term, Adam Liptak writes something that should strike fear in the hearts of all good people.
What was striking this year was that Justice Kennedy, a moderate conservative, swung right and left an equal number of times. Since 2000, there have been only two terms in which Justice Kennedy did not vote with the conservatives at least 60 percent of the time in such ideologically divided cases.
Several of the cases in which Justice Kennedy joined the liberal bloc involved the rights of people accused and convicted of crimes. This year, the court turned its attention away from criminal trials, which are vanishingly rare, and toward the real world of criminal justice, in which plea bargains are the norm and harsh sentences commonplace.
While no one will be surprised to read that plea bargains are the norm and harsh sentences commonplace, the relationship with the realization that criminal trials are vanishingly rare, mentioned almost in passing, cannot be ignored.
The law has rendered the trial a deadly exercise for most criminal defendants. Not because they are guilty, or as guilty as the government says, but because the mechanics of assessing guilt, with crimes like conspiracy, so overwhelmingly favor the government that it’s tantamount to suicide to challenge the charges head on at trial.
The tools available to the government, wiretaps, warrants, snitches and law enforcement personnel with feigned “expertise” in every aspect of human experience that conveniently serves the government’s purposes, combined with judges fresh from the United States Attorneys office, schooled and indoctrinated in the evils of criminal defendants and the relative integrity and valor of federal agents, makes for a tough time.
Add to that defendants who might choose to testify, except for the use of irrelevant prior bad acts against them that couldn’t be used against any other witness and their lack of adequate training in the art and science of testifying persuasively on the witness stand, as is provided every agent , combined with poor education and, often, lousy attitude.
And even the non-defendant witnesses for the defense, who will be investigated and confronted by government agents in advance of testimony, and told (but not threatened, the agents tell the court) that if they lie (in the government’s eyes), they can bank on being the next sacrificial lamb in the defendant’s chair. And we’re shocked when the witness disappears on us, or won’t take our calls or appear in response to the subpoena. Better we get angry with them than the government.
As discretion becomes the better part of valor, defendants decide that the pittance offered by the government to plead guilty and not put them through their paces is a pittance shaved off the back end of a sentence. The few months or years is that much more time to spend with their children before they reach majority, or grandparenthood, as the case may be. The punishment for exercising the constitutional right to trial is brutal.
This situation didn’t come about by accident. It’s been part of a design developed over many years to expedite the speedy resolution of criminal prosecutions. And, naturally, to end cases with the “proper” result. It’s been done with the cooperation of the joint task force, comprised of member of the legislative, executive and judicial branches. And they are pleased with their work, until someone occasionally breaks ranks and admits to the damages they’ve wrought, invariably after they no longer have any power to fix things.
Not surprisingly, the trial of a criminal cause has become “vanishingly rare,” one case at a time, repeated over and over across the land.
New lawyers offer their expert opinions on every matter of law on the internet, but few have ever tried a serious felony to verdict before a jury. Fewer still have 20 trials 100 trials, under the belt. Their knowledge of cross-examination comes from books and CLEs, where they hear of things they will never actually experience. They will take copious notes on their iPad just in case they ever had to use them someday.
A decent plea bargain comes from a relative balance of power. The government must fear that they might lose at trial, while the defendant fears everything about the prosecution. This requires a defendant to negotiate from a position of strength. When the defendant’s chance of prevailing falls below slim and approaches none, it’s no longer a bargain but a unilateral imposition of government might. The prosecutor dictates the offer, based on the government’s view of provable fact. That the defense disputes it means nothing. He can take it. He can leave it. He doesn’t have to like it or agree with it.
As the ability to sustain a challenge fades into distant memory, so too does the defendant’s bargaining position. The vanishingly rare trial means the government will impose the plea it deems appropriate. No amount of bluff and swagger by defense counsel makes the prosecutor shudder with fear. He knows you won’t try the case. Pretty soon, he will know that you can’t. You’ve never tried a case. You’re shooting blanks. And he can smugly offer three points off his best case scenario, secure in the knowledge that there isn’t a damn thing you can do about it.
And the defense will ultimately take it, because there isn’t a damn thing they can do about it.
This the future (and for many, the present) of a legal system in which a trial is vanishingly rare, because the legislative and executive branches have done everything in their power to make sure you have as little chance to fight as possible.
And now the judicial branch, which hasn’t demonstrated much concern for the fact that not everyone lassoed into mass prosecutions or targeted in individual prosecutions, is guilty, no longer sees the vanishingly rare trial as worthy of its very important time and effort, because “plea bargains are the norm and harsh sentences commonplace.” Mission accomplished.