Yet another gem from Anne Reed at Deliberations, Is the Jury System Dying?  This comes from a speech by Judge William G. Young, Chief Judge of the District of Massachusetts, who expresses his belief that is jury trials, not Congressionally imposed guidelines, that provide the clearest protection of our freedoms.

Taking this issue from the lawyers’ perspective, it raises a serious issue that has disturbed me for some time.  Every lawyer I talk to, from prosecutor to defense, claims that they either just finished a trial or are about to start one.  The empty courtrooms, however belie these claims.  There just aren’t a lot of cases being tried, and that’s particularly true in federal courts.  So if cases aren’t being tried, why are lawyers constantly claiming to be on trial?

A few years back, I had an evidentiary hearing before Judge Kimba Wood in the Southern District of Ne York.  It related back to a New Jersey case, where the defendant had taken a plea to some relatively inconsequential felony offense and was given probation.  The problem was that he was on life parole in federal court at the time, and the Jersey lawyer neglected to mention that he was going to get banged by the feds despite his probation in New Jersey when he advised him, STRONGLY, to take the plea.

The Government put the Jersey lawyer on the stand.  He spoke eloquently of his many years of experience as a criminal defense lawyer, and his determination to advise his client, now my client, to take the deal.  On cross, I asked the lawyer to tell us how many felony cases he had tried to verdict before a jury in long and illustrious career as a criminal defense lawyer.  He was silent for a while.  He looked up at the ceiling, deep in thought.  He looked down at his fingers, toes and some other part of his anatomy that was concealed by the rail.  A few minutes went by in silence.

Finally, I asked him again, please tell us how many.  He looked at me with venom.  Very softly, he answered:  “None.” 

Criminal defense lawyers, like all trial lawyers, perceive themselves as the gladiators of the profession.  We are the ones who fight the real fight.  We don’t quibble in depositions.  We don’t prove our manhood in motions.  We stand before juries, armed only with our wit and knowledge, and stare down the most powerful government the earth has ever known.  At least that’s what we say we do.  But is it true?

My suspicion is that lawyers tell their friends that they are on trial, even when they are not and haven’t been for…well, perhaps forever, because they are embarrassed.  They want to be on trial.  They want to be the person they perceive themselves to be, but it’s just not that easy.  Who wants to admit that they strut around as a trial lawyer, but have never actually tried anything?  Even if they have, who wants to say that they haven’t tried a case in years?  The image and the reality don’t match, and the lawyer doesn’t want to feel like the only one in town who can’t remember what picking a jury is like.

For me, it seems like it’s almost impossible to get a trial started.  My last trial was in December, 2006.  My next trial was supposed to start last May.  It didn’t, since the people weren’t ready.  June; not ready. Same with July and the case was adjourned to September.  Will it start in September?  Who knows, but it makes it pretty hard to prepare (yet again), pump myself up and walk in rarin’ to go.

Another criminal defense lawyer friend of mine, who has tried many cases in his career, hasn’t tried a case in more than 3 years now.  Until I asked him when his last trial was, he hadn’t thought about it.  His initial reaction was, I think it was last year.  But with some prodding, he realize that years had gone by and he hasn’t tried a case.  He found the answer painful.  He wanted to try a case.  He loves trying cases.  But there was no trial to be had.  Not his choice; just the way things worked out.

I agree with Judge Young that jury trials are dying.  But from my chair, the disease was a conservative shift in political sentiment, elevating the desire for personal security over the promise of individual freedom.  This let to draconian sentencing policies stemming from simple legislative solutions to bolster re-election campaigns.  That led to snitches becoming the predominant form of proof, which resulted in a widespread belief that defendants’ chances of winning at trial were so small as to compel defendants, even innocent defendants, to plead guilty rather than roll the dice.

Where does that leave criminal defense lawyers?  In a position where they are no longer skilled at trying case, or so out of practice that they fear a real trial, or making up stories about trials that never were so that their brethren don’t look down their noses at them.  This is a dangerous situation, since criminal defense lawyers, like the New Jersey lawyer I crossed before Judge Wood, may someday realize that the threat of putting the Government to its proof is simply illusory.  They may pound their chests about trial, but they don’t have a trial in them.  And as soon as the Government smells fear of trial, there is nothing left to stop them imprisoning people at will. 

If it were up to me, we should be trying 75% of all criminal cases.  Judges wouldn’t penalize defendant’s for exercising their constitutional right to trial by whacking them on the backend with an enhanced sentence, and all those wonderful rights that the judge mentions during the course of the plea allocution (the ones that make it sound like nobody could ever be convicted after trial because of the enormous burden placed on the prosecution) would regularly see the light of day.  If we let these live in word only, then the jury trial will most assuredly die.  And criminal defense lawyers will be complicit in the murder.