Professor Bowman, in his Response, American Buffalo: Vanishing Acquittals and the Gradual Extinction of the Federal Criminal Trial Lawyer, picks up on one of Professor Wright’s key findings: “the curious fact that the rate of acquittals in federal criminal cases has declined even faster than the rate of guilty pleas has increased.” Professor Bowman goes on to suggest that “acquittals may be vanishing in part because a once-common courtroom denizen—the true trial lawyer—is becoming an endangered species,” and worries that the system has created “ever-greater disincentives to trying the kind of cases in which acquittal is a live possibility.”

Nothing like making me feel like a dinosaur.  How are you feeling, Bennett (who just happened to post today about how to become a federal criminal defense lawyer)?

For those of you who have followed Simple Justice (and Mark Bennett’s blawg, Defending People) for a while, these are themes that show up over and over.  In federal practice, real trial lawyers are few and far between.  The impact of the federal sentencing guidelines, obstruction of justice enhancements for exercising basic constitutional rights and cooperation has made the cost of losing too high, and the alternative of snitching too easy. 

While lawyers won’t mention it in the initial consultation, where they are busy persuading the defendant or his family how much they care and how hard they’ll fight, the sad truth is that they haven’t done a federal trial in many years and have no plans to ever try another case in federal court.  Clients are misled into believing that their lawyer offers the full panoply of options to fight their case.  They don’t.  The weapons of the defense run from plea to cooperation to safety valve.  Trial is no longer an option.  But they conceal this truth.  It’s a disgrace.

Personally, I refuse to be cowed by the guidelines and, client willing, will be the last lawyer trying cases if that’s what it takes.  For the reasons discussed below relative to the points made by Wright and Bowman, it is critical that lawyers continue to put the government to the test at trial, both for our individual clients as well as the integrity of the system.  I call on all lawyers to put down the plea agreement and go to trial when you have a triable case.  Stop your appeasement of the government. 

The failure of the federal criminal defense bar to be ready, willing and able to stand up to the government and take a case to trial has indeed created a “distortion”, as Professor Wright calls it, in the federal courts.  The government assumes that they can charge and convict people at will, and the only question is what guideline level will they demand at sentence.  They have no fear of being challenged.  This happened because the criminal defense bar put their tails between their legs and ran.

As a result, there is no longer, in the minds of the government, a potential that anyone accused will be acquitted.  You can’t be acquitted unless you go to trial.  Thus, if they aim their sights on you, you are by definition guilty.  Take a look at the statistics.  It’s all there.

We are all painfully aware of our clients telling us how the agents lied, or coerced, or abused them.  So what do you do about it?  Too many just respond, “that’s how it goes.”  This is not good enough.  It is downright unacceptable.  Fight the feds. 

I take a federal criminal case like any other.  I take it with the intention of defending my client and going to trial.  This has ramifications, since prosecutors know that I’m not going to do the waltz with them and then ultimately fold my tents and beg for a deal.  They know that I won’t push my client to rat out his brother or mother or whoever.  When I seek discovery, it’s in preparation for trial, not just to keep busy and put on show for the client.  I do not pretend to defend.  I mean it.  And they know it.

I don’t mean to suggest that the only two trial lawyers left in America are me and Bennett.  There are others.  Just not enough.  The majority can no longer call themselves trial lawyers.  But there is a handful that are entitled to use that honorable title.  We don’t look any different from the others, and we can’t advertise that we are the real McCoy while the others are just pretenders.  If I were a client, I don’t know how I would be able to tell one from the other.  Until it was too late.

At Pennumbra, the next step in this academic review comes from Michael O’Hear:

Professor O’Hear, in his response, What’s Good About Trials?, questions whether trial distortion represents a significant problem. Professor O’Hear believes our main focus should be on “mak[ing] plea bargaining processes look more like trial processes.” According to Professor O’Hear, “The trick is to find ways of injecting the values of voice, neutrality, and respect into the plea bargaining process without robbing plea bargaining of its efficiency advantages over the trial process.”

O’Hear’s view is what one would expect from someone out of touch with reality.  There’s no dignity in the plea bargaining process without the threat of trial and acquittal as the leverage.  When the prosecutor says take 121 months or else, what does O’Hear think the defense lawyer can do?  Complain that the AUSA wasn’t polite enough?  Plea bargaining, as an option, is only viable if the defense has meaningful recourse to trial.  Otherwise, it’s just prosecutorial largess and the defendant eats the deal because his lawyer’s not going to trial no matter what.  Some bargain.

Another response comes from Daniel Richmond:

Professor Richman, in his Response, Judging Untried Cases, applauds Professor Wright for attempting to determine whether “the inexorable reduction in trials actually reflects an impairment of the federal criminal system’s truth-finding function.” However, he notes that Professor Wright overlooked one important factor in his analysis: the extent to which “the vanishing acquittal rate reflects an increase in the [federal] adoption of well-established ‘local’ cases.” Without more information, Professor Richman concludes, “aggregate caseload statistics are . . . hard to interpret.”

I guess this is what happens when you view federal criminal defense based on statistics rather than life in the trenches.  Sometimes I wish that these professors, if they wanted to have a real feel for how things worked, opened a dialogue with real lawyers rather than engaged in these circle jerks, where they talk amongst themselves without any of them having a clue.  Didn’t they ever learn about the “risky shift” at Yale?

This “truth-finding function,” by which I guess he means trials, exists only in the minds of academics.  Trials are unfair street fights where they try to convict and we try to acquit, but they have all the guns.  We have nothing but our wits and skill, and while they try to bludgeon us to death with their tailored testimony, manufactured evidence and solicitous judges (and caselaw), we try to surgically excise enough of the cancer from the legal system to save our patient, the defendant. 

So what is this “distortion” thing they are all talking about?  For me, it’s the pretense that all these guilty pleas reflect an accurate representation of guilt of crime, and an end result of justice.  Nope.  It’s a scam played on the America public.  Defendants plead guilty to things they didn’t do every day.  Defendants admit, under oath, the commission of crimes that never happened every day.  Why?  Because they believe they have no option to do otherwise.  But it’s under oath, you say?  Surely you don’t believe that a defendant who is facing 240 months is worried that he’ll get nailed for perjury by admitting guilt to a crime he didn’t commit, do you?  On what planet?

So the federal criminal practice has become mired in legal fiction and fantasy, with neither a “truth-finding” function nor a meaningful threat of trial to protect the innocent for most people.  Is this what the American people want from their federal courts?  Do they want the government to be that powerful?  Do they want innocent people to pretend to be guilty rather than face obscene consequences?

The criminal defense lawyer is supposed to be the one who stopped this from happening.  A handful of us isn’t good enough, because the government knows that the vast majority will show up at its door, hat in hand, begging to put the defendant in jail on some deal.  How much more “distorted” can it get?