Kopf: A Contrarian’s View Of The Vanishing Federal Criminal Jury Trial

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.

Consider the following charts taken from The Vanishing Criminal Jury Trial for the period of 1980-1999[i] and 2000-2016[ii]:

This has caused great angst.[iii] For example, a pipe-smoking[iv] Cato libertarian (evidently fearing black helicopters) tweeted the following recently:

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.

19 comments on “Kopf: A Contrarian’s View Of The Vanishing Federal Criminal Jury Trial

  1. Anon

    I’m more concerned with the vanishing jury trial on the civil side. The only way to really know what a case is worth is to know what a jury says it is worth. I agree that on the criminal side of things there is so much for a defendant to lose that going to trial doesn’t make a lot of sense (at least in the federal system); but on the civil side of the house, I’d like to see more trials.

    Reply
    1. Richard Kopf

      Anon.,

      Mediation or arbitration plus the exorbitant cost of discovery and motion practice in the federal courts have greatly diminished the economic utility of civil jury trials in all but a few cases. Whether for good or ill, I don’t see that changing.

      As an aside, I have a friend who is now retired. She was my co-clerk when we served Judge Don Ross on the Eighth Circuit so many years ago. She later went on to Cravath and then became a partner at Boies Schiller Flexner. She is a really good and very tough lawyer.

      Back in the day, she told me jury trials were unconstitutional because they lacked a rational basis. That is, no sane person would pick 12 folks off the street to decide an important question about money or liberty. In the long run, she may have been right.

      In any event, time marches on. All the best.

      RGK

      Reply
    1. losingtrader

      Rich, I’m curious if the high trial conviction rate is due to the lack of a plea offer that is less than sentence generated by a jury conviction (i.e. take a shot on a jury if you’re only getting a few points for admitting guilt, perhaps due to mandatory sentences).

      As to Anon’s comments, there’s no deep psychological implication of the judge’s pipe smoking. He goes out on the back porch by 6 am on the weekend , lights up, and contemplates which neighbor pisses him off the most. The tobacco also calms his nerves before another Nebraska game, which he’ll leave before halftime, even if the team is winning (unlikely).

      Mrs. Judge has none of this . Definitely the better half.

      Reply
      1. Richard Kopf

        Losingtrader,

        Sorry for the late response.

        Not to be snarky, but the conviction rate is a product of one simple fact. Guilt. The feds have a lot of money to throw at proving guilt.

        In my years of doing this, I have seldom, perhaps never, confronted a case that went to a jury trial where I believed strongly the defendant was not guilty. That is so, even in those cases where the jury acquitted.

        As for my pipe, of course, you are right. I conspire with bad Rich on the porch each morning to do evil while I smoke my pipe.

        All the best.

        Rich

        Reply
  2. Billy Bob

    I hate to throw water on your party, but most of us who brush up against the *criminal justice system*, do so at the state level. That’s a whole other Kettle of Fish, the Tip of the Iceberg so to speak. Consequently, the so-called vanishing jury trial at the federal level may be nothing more than a Tempest in a Teapot. However, it keeps the law review people busy lie Bees.

    Happy Holidays, and All the Best, and
    Remember: That judge is Best who judges Least.
    I wrote an op-ed piece once, titled “Our Broken Jury System.” No one would publish it. It was deemed “unsuitable for the readership.” Am sure you and the readership here understand! Can U say *credentials*?!?
    BB

    Reply
  3. Eliot J CLingman

    Whatever the actual merits of replacing trials with pleas, the problem is that the 6th amendment has been largely reduced to a dead letter without the deliberation and debate involving a formal constitutional amendment to supplant the 6th.

    With all due respect, I am appalled.

    Reply
  4. Charles

    “Simply put, we don’t try criminal jury cases for the purpose of educating our citizens.”

    Your honor, if the jury finds that my client trafficked drugs, he only did it so that they would become better citizens and have a deeper understanding of the function of the judiciary.

    Reply
  5. Richard Kopf

    Charles,

    Gee, a new reason for a variance. But, please don’t spread it around as it could be catching.

    All the best.

    RGK

    Reply
  6. Kurt

    With all the respect I can muster, the following must be said:

    The disappearance of the jury trial, is for the most part, worse than a shame, it’s a failure of the justice system.

    I’ve read on this blog from at least the owner that justice and morality can’t be defined. Nonetheless, it the role of the jury to ensure it, by judging the facts of the case, whether the application of the law is, in that instance, appropriate or malicious, as well as whether or not the law itself should be enforced at all.

    The reluctance of officers of the court to inform juries of their full duties is a crime against the American legal system.

    I’m sure I’ll be dismissed as uninformed or a crank, but I believe that the history of common law supports my position.

    Kurt

    Reply
  7. Richard Kopf

    Kurt,

    If I read your comment correctly, you are an advocate of jury nullification–the practice of doing what a jury thinks just even if the jury must disregard the judge’s instructions to do so. If that is what you are pitching, I am not buying.

    With respect, a lawless jury is no better than a lawless judge. As for the American common law, the federal courts have their own federal common law (albeit the body of federal common law is small). I doubt you will find much support in the federal common law for jury nullification.

    Finally, don’t worry about being called a crank. I have, with good reason, been called far worse.

    All the best.

    RGK

    Reply
    1. Billy Bob

      If I read your comment correctly, you are not an advocate of jury nullification. Well let me say this about that: I think Kurt is onto something. Jury nullification may well become the Wave of the Future in this era of Trump-Sessions Sanity. My own state legislature is reviewing criminal justice practices and procedures as we speak,… to see if past practices have been overly harsh and ineffectual?
      The topic/possibility of jury nullification has been bandied about for years; however, we have not noticed too many juries exercising it. Why would that be? Did O.J. Simpson’s jury exercise nullification on the sly, or did they simpley find him not guilty. They may have exercised it (murdering your spouse or ex-spouse is not really a crime after all), and then couched their collective opinions in a so-called verdict just to wrap it up and get the hell out of the sequestered deliberation room before the weekend.

      In any event, the Simpson charade trial is the poster-boy for why jury trials are nothing more than a Kabuki dance performed by the State and/or the Feds. Moving ahead now: If a jury should be deemed “lawless” (Para. #2, Line 1), well then perhaps the police should be called and/or the bailiffs be instructed to arrest them all and place them in the lockup? A “lawless judge”, on the other hand, has nothing to worry about. The Judiciary has invented a convenient solution to that possibility. It’s call Qualified Immunity, which has been written about here. Lawless judges never get arrested. Theesa bullasheeta gotta stoppa!

      Reply
      1. SHG

        There are moments when I feel as if others should have to suffer reading your comments to appreciate the burdens I endure running this joint. This is one of them.

        Reply
        1. Billy Bob

          You enjoy every minute of the abuse we put you thru. Hey look, I’ve served on a jury–and voted for acquittal in a v. weak case which never should have brought to the criminal court. I’ve sat in front of a jury at the defense table, and I’ve observed several juries. That should qualify me to comment, even if my comments make no sense to you members of the bar. Now, I’m heading to the bar on the corner. That’s where Real Men hold court!?!

          Jury duty is serious busyness. It’s your civic duty; take it seriously–and focus. It’s a great concept. Too bad it works so imperfectly in the Real World. And don’t forget to “send a message” to those godawful lawbreakers with no conscience. Am also an “activist” who has marched, testified, written letters, made phone calls and visits. After all is said and done, nothing much seems to change,… just when you get that consent decree and feel all warm and fuzzy,… deja voodoo sets in all over again.

          Reply
    2. Kurt

      Yes, jury nullification. It is the last bulwark against a lawless justice system.

      Calling jury nullification lawless would seem to suppose that juries routinely couldn’t or wouldn’t make a distinction between those who deserve punishment, and those who don’t. I would say instead that if juries were given instructions by the judge that illuminated their rights and duties fully, that we’d see a number of unjust laws fail to be applied, and that the excessive power of law makers and law enforcers would be curtailed to more reasonable proportions. If judges would tell juries that they should also judge the application of the law, and the law itself, would that be so disastrous?

      Perhaps you might be thinking of O.J. Simpson. It’s certainly a problematic case, but how common is such a result, really?

      I prefer to bring to mind juries in Northern states refusing to convict and return runaway slaves.

      Regardless of how little support there is in Federal law for nullification, it is still a tactic available to jurors with a conscience.

      Kurt

      Reply
      1. SHG

        Let’s not go any farther down this rabbit hole. Jury nullification happens all the time, particularly when it comes to reasonable doubt. You don’t notice because it results in conviction. Your “jurors with a conscience” is a fantasy. They have a conscience, but they exercise it most of the time to convict.

        Reply
        1. Kurt

          To convict is not to nullify.

          I’ll take it no further than this: I believe we would see very different outcomes if judges would instruct juries as to their right to nullify. Judges currently do not do this, and though I won’t present speculation as to why, I don’t believe it’s a good or healthy.

          Kurt

          Reply
          1. Billy Bob

            You are bright, well-meaning and well-intentioned, Kurt; however you speak like a Babe in the Woods. “If judges would instruct juries as to,…” This is the silliest nonsense. I can say right here and now that you have never been on a jury, sat at the defense table in front of a jury, or witnessed a jury trial for murder or any other serious felony offense. If that were the case, you would not be espousing what you just said. It’s plan silliness.
            Whatever judges instruct is what juries take to be their sworn duty. It’s overwhelming. Let’s say the [lady] judge instructs the jury as to its right to nullification–voila!–that is what the jury will bring back from deliberations. Juries are made up of ignorant, stewpid people such as yourself who do not know sh!t from Shinola when it comes to the law and jurisprudence. And you can take that to the bank. (Refer back to SHG’s comment above; he is correct.)

            Finally, we feeel your pain. Many have tried, and many have died,… trying to achieve justice in an unjust world where the statist overlords and black-robed ones have unmitigated powers over you and your well-being, without accountability, conscience or remorse in the event that they make any grievous errors/mistakes which affect you and your loved ones negatively for a lifetime. It is a rotten system. It makes no sense–it never made any sense–certainly not to the sensible amongst us. However, do not give up the ship. Keep trying. We need people like you on board to make a “more perfect union.”

            Reply

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