When Trials Are “Vanishingly Rare”

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.

20 comments on “When Trials Are “Vanishingly Rare”

  1. Barry

    You have a right to a trial by a jury of your peers, but god help you if you choose to exercise that right.

    “The land of the free.” It’s Orwellian and Kafkaesque at the same time.

  2. CRC

    It’s not an accident that we have the highest incarceration rate in the world here in the Land of The Free.

  3. Thomas R Griffith

    Sir, first and foremost – every now & then you touch on this dirty little topic which in the end leaves us a little less stupider (as you say) and I thank you. I typed “dirty” but meant ‘fucked up’ loophole that encourages the Defense to team up with the Offense to throw the game as it ensnares the guilty right along with the innocent despite having a hired gun or appointed mouth piece. A loophole that could not exist or much less operate at levels in the 90 percentile range without the full cooperation and assistance of the three (four) ring circus. The Judge (enabler / referee), the DA and his children (Pimps), the Defense (whores in hot pants) & those that are encouraged to falsely arrest at will.

    For those being truly unaware or just simply going through life clueless and ignoring the dilemma that’s slowly bringing an entire profession down one ‘TapOut’ at a time, you are encouraged to take time to check out the SJ link below. The point would be for you to have an opportunity to read a SJ post you might have missed or witness a (VOTS) victim of the system confronting the ADA of record about his role in stopping a jury trial to plea bargain with the innocent 20 plus years after the fact. ‘TapOut’ artist and dabblers should be warned by their mentors that the innocent defendant / client that’s plea bargained away vs. dropping charges (that survives prison) could / should haunt your ass clear in to your golden years and beyond. For the punks that pay their bills via TappingOut, the rhythm is eventually gonna getcha. Thanks.

  4. Charles Morrison

    This issue was one of the first real, crushing realizations I came to shortly after being licensed. I wanted to try cases, damn it. Problem was that many of my clients, who were much more versed in the system than me, knew that a deal netting them 18-36 months was much better than the alternative should we not prevail. They had seen the way trials go in their own experience (and their loved ones).

    I was itching for a trial and found myself really pushing some clients to take it to the box when I believed there was a decent chance for an acquittal. When I refused to “promise” victory, most clients made the logical decision and took the plea bargain.

    While a trial tax is inappropriate, “experienced” clients know all too well that it exists.

    Therefore, my first few trials were all due to having the recalcitrant client who is angry, unrealistic, illogical and refuses to plea no matter what. Those today continue to be the cases I take to trial on most occasions.

    And those cases hardly move the needle when it comes to putting pressure on the prosecutor’s office. While I have found that the more jury trials I do, the deals have gotten better with lazy prosecutors … not so much with those that can try cases in their sleep.

    So, from my (albeit relatively inexperienced) perspective, this problem is not fixable. The smart clients, and those with the best chances at an acquittal, are the least likely to refuse the deal. while I certainly can’t blame them, that doesn’t help matters at all when it comes to putting more pressure on the state, forcing more equitable resolutions. It’s left to my angry client who likes to file his own motions.

  5. Windy

    I usually do not propose any new laws, we have too many laws already and most of them cause more problems than they solve. However, I can conceive of two laws that would solve a LOT of problems in our union, the first one would be that in order to become a prosecuting attorney, a lawyer must first have served 10 years as a practicing criminal defense attorney, and the second would be that ALL lawyers, regardless of their field of expertise, would be barred from holding office in any legislative position (local, State or federal), they should be limited to the judicial branch of government ONLY!

  6. SHG

    Lawyer legislators are horrible. Non-lawyer legislators are worse. Have you considered that the answer may not have anything to do with being a lawyer, but with the mindset of anyone who wants to run for office?

  7. John Neff

    If you search on “state-legislatures-where-are-all-the-lawyers” you will find a chart the gives the percentage of lawyers in state legislatures. Texas has the highest percentage which I think is proof by demonstration of the point you just made.

  8. Windy

    Non-lawyer legislators would write bills in English rather than legaleze, the bill would be shorter and understandable to the average citizen. When they were uncertain they’d consult experts in the Constitution and current law.

  9. SHG

    Yeah, that’s really not as good an idea as you think it is. It’s been discussed to death, so it’s not going to get discussed here again, but it’s a really bad idea.

  10. Bergman Oswell

    I heard a quote a while back, and while I haven’t been able to pin down where it came from, it’s quite apt:

    When legitimate justice becomes impossible, vigilante justice becomes inevitable.

    The way things are going these days, inevitability looms larger every year.

  11. Lurker

    It was really low. In ancién regime, the punishment was almost always corporal, and more-or-less random. The punishments on books were simply horrible, and the maximum punishments were given on random basis to offenders. Usually, however, the offenders were sentenced much more leniently.

    Incarceration was not a usual punishment. For some offences, you would end up as a galley slave, but that was rather rare. Instead, you got a horrible beating or some type of capital sentence.

  12. Thomas R Griffith

    Sir, no, it’s us (public at large) that owes you a great debt of gratitude and that aint smoke. I read it all and take it very serious.

    *It looks like the only one to attempt to arrive at a possible solution has missed the mark. When time permits, please let us know where to start in the rehabilitaion process of an entire industry? Thanks.

  13. Andrew

    In your view, what would be the ideal characteristics of a legislator?

    As a regular reader and occasional non-lawyer peanut-gallery commenter, and as someone who does not view himself as a career politician, I am actually curious.

  14. SHG

    A person who wants to do the work but doesn’t want the title and wouldn’t run for office.

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