Over the last three decades, there has been a steady overall decline in federal criminal jury trials. For compelling proof and a penetrating explanation of why this decline has taken place, see Honorable Robert J. Conrad, Jr., United States District Judge for the Western District of North Carolina and Kathy Clements, The Vanishing Criminal Jury Trial: From Trial Judges to Sentencing Judge, 86 GEO. WASH. L. REV. __ (forthcoming Mar. 2018). I can’t compliment these authors too much. Their work is superb.
While I do not wish to discuss in any great detail the reasons for the decline as explained by the authors of The Vanishing Criminal Jury Trial, any person who is serious about understanding the causes for the decline would be well-advised to read the article slowly and carefully. The authors’ explanations are finely reasoned, well-researched and compelling. Interestingly, some of those reasons are surprising or counterintuitive, but in my view eminently sensible.
For example, the discretion afforded district judges by Booker[v], which tended to ameliorate the harshness of the Guidelines, and the relatively benign charging policies of Attorney General Holder[vi], are two such unexpected causes for the decline in criminal jury trials according to the authors. But, overall, with a conviction rate hovering around 87 percent for all criminal jury trials[vii], “even the most daring and adept litigators would pause before urging their clients to exercise their Sixth Amendment jury trial right.”[viii] In short, the risk/reward ratio has never favored gambling with a jury in most cases, and that is especially true now given the stiff penalties that Congress has enacted.
What I am far more interested in is probing the normative question of whether we ought to fear the decline in criminal jury trials. I am not much concerned about such a decline, but the thoughtful authors of The Vanishing Criminal Jury Trial are quite concerned. I wish to scrutinize their judgments.
Greatly summarized and condensed, I next describe the authors’ conclusions that the decline in criminal jury trials is bad for business. After each point I will provide my brief take. Here goes:
Point 1: “The absence of jury trials makes the judicial process more secretive and contravenes the ‘presumption of openness [that] inheres in the very nature of a criminal trial under [the American] system of justice.’ Trials provide a public forum for the airing of grievances, yet the death of trials marks the end of doing justice where disputes are played out under the attentive eye of judge and jury.” Id. at 48 (citation omitted).
Kopf’s Take: As I have said before in this regard, “give me a break.” I have tried lots of criminal jury trials over the last 25-plus years as a district judge[ix] and I can count on one hand the cases that drew more than few members of the public. Besides, arraignments, detention hearings, suppression hearings, guilty pleas and sentencing hearings are public. Hell, they are not only public, but because the magistrate judges and I use digital audio uploaded to our computer system, anyone in the entire world can listen at home to those proceedings[x] that very evening at minimal cost.
Point 2: Without more jury trials, lawyers lack a foundation to know which cases to try and which not to try because they lack a sufficient number of prior cases tried to a jury to gauge the strength of their particular case and their client’s risk against past history. Also, appellate review of jury trials is shrunken and thus development of trial related law is impaired. Even further, the trial skills of judges and lawyers are harmed by disuse. Id. at 50-51.
Kopf’s Take: At least out here in flyover country, we have enough criminal jury trials to keep the district judges up to snuff and our Court of Appeals sufficiently busy to make whatever criminal law needs to be met. Frankly, you don’t need a whole lot of jury trials to keep your skills intact and the Court of Appeals busy fly-specking the application of the criminal law in the district courts during jury trials. Moreover, specialization is rapidly and inexorably changing the private bar. That means private CDLs will be fewer but likely better as the market weeds out the marginal. Great CDLs know when to hold them and know when to fold them. Still further, we have very experienced federal prosecutors and federal defenders who have tried loads of criminal cases to juries and who are ready willing able to pick a jury for the ones that need to be tried. Additionally, our Criminal Justice Act Panel is populated with lawyers who can find the courthouse and pick a jury as well. And the management of that panel provides training for baby lawyers through a sort of “mentoring” system.
Point 3: In close or weak cases, the absence of the potential for independent fact-finding by a neutral jury has weighty justice implications. Id. at 51-52.
Kopf’s Take: In my experience, that’s not convincing. As a practical matter, few close or weak cases get tried anyway. Just last week a relatively young but wonderfully devoted CJA panel lawyer got his client a sweet deal dismissing a drug conspiracy case in favor of a plea to misprision of a felony. I put the defendant on probation and approved a voucher for the lawyer that was twice the CJA limit.
Point 4: Without more jury trials, fewer citizens serve as jurors. “Studies show that jurors often leave the jury duty experience with a renewed sense of faith in the fairness and integrity of our government. However, as trials disappear, the risk of the public becoming increasingly disenchanted and distrustful of the American judicial system, and more importantly, of our democracy as a whole, becomes more real.” Id. at 53 (footnote omitted).
Kopf’s Take: The authors’ argument that jury service provides an important educational function is certainly true, at least for the judicial branch. But that educational function can only be provided to a tiny number of citizens even assuming that the federal jury trial rate increased exponentially. Moreover, we should never forget that we forcibly summon jurors upon pain of fine and imprisonment and we screw up their lives mightily in so doing. Simply put, we don’t try criminal jury cases for the purpose of educating our citizens.
Now, I will zoom out a bit and conclude. Nostalgia for a bygone era is not a sufficient reason to worry that the sky is falling. We must remember that criminal jury trials are a means to an end, and not an end by themselves. Ultimately, the federal district courts are intended to resolve disputes and we are doing just that whether by plea or trial. And, I should emphasize, we are doing so promptly and I believe more fairly than ever.[xi]
Having been a federal magistrate judge or a federal district judge for over 30 years, it is my view that the good old days were never all that great. Besides, we judges are not the ones who must prosecute and defend criminal cases—that is solely the prerogative of the prosecutors and defenders. If prosecutors and defenders, with the agreement of their respective clients, decide never to try another criminal jury trial, that is their call and not mine. In short, and while I don’t wish it, if the federal criminal jury trial vanishes altogether, I will sleep just fine.
Richard G. Kopf
Senior United States District Judge (Nebraska)
[i] Id. at 19 (the hyperlink and the page citations are to the version found on the Social Science Research Network).
[ii] Id. at 5.
[iii] See, for example, Josh Gerstein, Why Petersen may not be the last judicial nominee with no trial experience, Politico (December 21, 2017).
[iv] I smoke a pipe too, but I am no libertarian. I am just a schmuck who sucks a pipe.
[v] The Vanishing Criminal Jury Trial at 25-29.
[vi] Id. at 31-42. “During Holder’s tenure as Attorney General, jury trials of drug prosecutions decreased by 45 percent from 1,035 jury trials in 2009 to 568 trials in 2014.” Id. at 33 (footnote omitted). Say what you want about Attorney General Sessions, but his comparatively tough charging policies for drug cases are likely to cause a bump in criminal jury trials.
[vii] The conviction rate for drug cases tried to a jury this year is slightly over 93 percent. Table D-4. U.S. District Courts—Criminal Defendants Disposed of, by Type of Disposition and Offense, During the 12-Month Period Ending June 30, 2017, at p. 2. If I never had to try another meth case I would be happy. Almost always, such cases are just unnecessarily long guilty pleas.
[viii] The Vanishing Criminal Jury Trial at 23 (footnote omitted).
[ix] Statistically, the District of Nebraska ranks 8th in the nation for criminal cases for the 12-Month Period ending September 30, 2016. My last criminal jury trial this year took three weeks to try. It involved 16 counts and it required a separate jury trial on the forfeiture allegations. It ended in a split verdict but prison sentences nonetheless for the defendants and a large money judgment against them to boot.
[x] To the chagrin of court reporters, I also use digital audio for my criminal jury trials. So, one doesn’t even have to come to the courthouse to hear the trial.
[xi] When I say “more fairly,” I refer to the process of resolving criminal cases and not to the draconian sentences that Congress has dictated. By the way, the biggest reason for the improvement in the process has been the near universal adoption of the Federal Public Defender system. I became a magistrate judge in 1987 when there was no such animal. Shortly before becoming a district judge in 1992, I was tasked with drafting the plan for the creation of the office of Federal Public Defender for our district. Trust me when I say the criminal process has improved by an order of magnitude since the inception of our Federal Public Defender’s office. Indeed, our Federal Public Defender, Dave Stickman, who was selected as the original Defender long ago, is now regarded by many as the Dean of the Federal Public Defense system nationwide.