A Practical Lawyer’s Reply To Kopf The Contrarian

Nebraska Senior District Court Judge Richard Kopf called bullshit. He does that sometimes, but this time it was about the “vanishing jury trial.”

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.

Perhaps in flyover country, where tiny but adorable John Deere tractors are good enough, there are enough trials, and few enough judges, that their absence makes the wheels of justice grind more effectively. Perhaps this “means to an end” is deemed “more fair than ever” because we’ve gotten so used to the small testimonial lies, the concealed Brady, the warped guilt of conspiracy indictments and practiced testimony of agents with fresh haircuts who look so totally honest and sincere, that the very notion of testing them seems silly.

To be clear, I’m not of the view that plea bargaining is evil and must be eliminated. In many instances, it’s the only meaningful relief valve for the guilty, or the innocent who stand no chance of prevailing, knowing that they’re facing life plus cancer otherwise. That plea may be the only chance an innocent (or more likely, not-nearly-as-guilty-as-the-government-claims) has to ever see his children again. If Draconian sentences are bad for the guilty, they’re even worse for the innocent. But I digress.

What makes Assistant United States Attorneys so generous as to offer a plea bargain? Certainly, they are, to a prosecutor, great humanitarians in touch with their feelz who adhere to Justice Jackson’s admonition to “do justice.” Right? Right?!?

I submit that there might be an AUSA somewhere whose vision of “justice” might not be quite so tempered by mercy as Judge Kopf would believe. In fact, some are harsh bastards, whether because their life experience ranges from brunch at The Club to deeply philosophical discussions of the ghetto in their Harvard Law School “Rapists and the Law” class.

No, the countervailing force that makes a snot-nose prosecutor think a little longer and harder about what to offer is the potential that Palladin will take the case to trial, make his closely-coiffed agent start to cry on cross-examination and humiliate the little shit when he returns to his office with his tail between his legs, being the only assistant in the last decade to get a two-word verdict.

Fear. Contrary to the dying (okay, I’m being a bit optimistic) words of Rose in The Last Jedi, destroying your enemies is the far stronger motivator than spreading the love. And the only way to strike fear in the hearts of prosecutors is to present a credible threat of humiliating them at trial. And the only way to be credible is to have the chops to try a case, the experience necessary to see the weak spot in the false testimony and exploit it. Not just the ability to make a grown, armed, agent cry in shame on the witness stand, but the will to do so.

You can’t get there without experience. You can’t get trial experience if you don’t try cases. You can’t get a reputation of being willing to go to trial if you’ve never gone to trial. Instead of fear, your threat of trial evokes smirks. That will surely get you a sweet plea offer.

Judge Kopf is right that the risk/reward ratio for going to trial is an extremely bad bet. When the option is 121 months on a plea versus life plus cancer after trial, plus the obstruction enhancement for the defendant taking the stand and outrageously denying guilt (because those additional six months after death certainly serves the goals of § 3553(a), right?), what sane person would roll the dice?

And that’s where the vanishing jury trial makes the system go horribly wrong. What prevents an agent from lying? What prevents a prosecutor from playing “hide the Brady” with impunity? What prevents a federal judge from believing that every defendant he tosses in the can forever isn’t guilty?

The only arrow in the other side’s quiver is trial. The only weapon we have against a huge, incredibly well-financed, finely-honed conviction machine is the will of a lawyer, usually grossly underpaid, invariably outgunned and facing a “totality of the circumstances” that makes any spurious allegation (“the defendant had luggage in his car as he was traveling to California on an interstate highway known to be used by drug traffickers, which is a clear indication of his being a narcotics kingpin”) overwhelming guilt of a conspiracy.

There’s history behind this. Years ago, every case was a “dropsy.” Then it was “furtive gesture.” Law enforcement quickly figured out what lie would suffice, and justified it by their certainty that it was all about getting the bad guys, so it was all just a means to an end. Isn’t the end putting the criminals in prison? Circumventing the Constitution, lying, fabricating evidence*, was just the means. As Murray Kempton said, “there they go again, framing the guilty.”

If that’s good enough, and we’re cool with the cops being dirty, lying, violating the Constitution, then all that matters is that we have confidence that only the bad dudes live in prison cells. For some of us, that’s not good enough. We actually want to hold agents to account. We actually expect the government to honor the Constitution. We actually fear that not everybody in a cell is guilty. We actually know that to be true.

There is only one mechanism to find out whether our wonderful federal agents and prosecutors are as clean in their hearts as their scrubbed faces suggest. Trial. And if there aren’t trials, lots of trials, where lawyers (and judges) can gain the experience to make them count, to know in an instant whether to leap up and object, and whether to mumble sustained or overruled in response, then the art and science of calling bullshit on the government will be lost to the ages.

Trying cases is hard work. Trying them well takes experience. After the first 50 jury trials, a lawyer may finally develop the chops to make a kid prosecutor pee a little in his pants. Without that, we’re left to the tender mercies of the government. On that, I call bullshit.

*It’s not as if DEA Group 33 didn’t get caught at the Huascar Lara trial fabricating evidence in a drug conspiracy, for which Special Agent Jamie Hunt was summarily fired and prosecuted made NY Special Agent in Charge. As agents go, he’s very special.

15 thoughts on “A Practical Lawyer’s Reply To Kopf The Contrarian

  1. B. McLeod

    I have never prosecuted at the federal level, but I have prosecuted. I am skeptical of the premise that prosecutors offer plea arrangements out of fear of “losing” a case. Typically, prosecutors’ offices (at least the good ones) will have standards for offers in particular cases. Such standards help to ensure that similarly situated defendants receive similar offers. If there is a prima facie case for the state and the defense will not accept the offer usual for that type of case, it becomes the prosecutor’s task to try that case, and let the chips fall where they may. Win or lose, the job is to try the case well and by the rules and let the jury sort it out. If the jury comes back for the defense, everybody goes home at the end of the day, and it should be no skin off the prosecutor’s nose. Random things happen in the criminal system, regularly, and lawyers on either side who take jury verdicts personally are going to have a lot of bad days.

      1. B. McLeod

        I actually used “reply” on the first attempt, but CAPTCHA bounced that and directed me to the “go back” option (which, apparently, however, did not go back to a “reply” screen).

        1. SHG Post author

          Of course it did. So while your comments on the Chickenshit Club post suggest you read (well, maybe skimmed) the post, I’m suggesting you read the book.

    1. SHG Post author

      Sorry to have trashed your earlier comment, Bill, but it was way too early to go full Bill yet. While this comment offers nothing remotely resembling a cogent thought, at least it’s brief.

      1. Pithy the Fool

        If this was your comment policy from the start you’d be in twitters position now, and they yours.

  2. Jay logsdon

    Thanks for this. After losing a dp case and then spending a month on paternity I needed some inspiration. Very well said sir.

  3. John Neff

    It is difficult for me an outside observer of the process to understand how the increased use of plea bargaining came about. It is unlikely that it was intentional. I suppose it was caused by gradual adaptations to factors such as the imposition of hash penalties and lack of resources needed to manage the case overload. Were there other factors as well?

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