Who “Owns” The Right To Trial?

The question is not, as some simpletons often seek to frame it, that too many criminal cases end in plea bargains rather than trials. They obviously do, and there are many reasons why this is the case as I’ve argued in the past. But in a new pitch to alter the calculus, Clark Neily goes to a place even darker than usual. Rather than argue that trials, rather than pleas, are necessary to vindicate the rights of the accused, Clark argues that it’s the right of the public to enjoy salacious legal content about the public figures they hate the most.

Think how much more we could learn about Biden-family influence peddling and the machinations of foreign agents if the charges against Hunter were litigated in open court, as the Constitution provides. Among other things, the relevant tax filings would have to be offered into evidence and there would be testimony about them, potentially including how Biden earned the income upon which he neglected to pay taxes, who paid him, and whether any other family members participated in the performance or the fruits of that labor. Those questions might lead to others, such as why the government appears to have cherry picked Biden’s least culpable tax shenanigans while turning a blind eye to more serious misconduct, as alleged by multiple IRS whistleblowers.

While the conduct of Hunter Biden is of great public interest because his father happens to be the president, making him a rather unique criminal defendant as far as public interest goes, the same rules apply to Hunter as to every other hunted. His personal notoriety and connection to power that enabled him to trade putative access to his father for big money is certainly a matter of extreme public interest, at least in some quarters. But what does that have to do with his rights in the course of a criminal prosecution?

The disinfecting power of sunlight shines much brighter in open court than it does upon the creases and folds of an artfully drafted plea agreement (or an inartfully drafted one, as the case might be).

When Louis Brandeis wrote “sunlight is the best disinfectant” in 1913, it was not about trials and courtrooms, but exposing wrongdoing. The media could do so. A congressional committee could do so. And perhaps it’s time for Hunter Biden’s shenanigans to be laid out for all to see. But in the course of a prosecution, Hunter Biden is neither more nor less a criminal defendant than any other, like Rudy Giuliani, say. Or more importantly, like Henry Jones, who is any defendant facing an indictment and the potential of years in prison.

The right to a public trial belongs to the defendant, the accused, and not the panting public desperate to see all the defendant’s dirt disclosed so they can point their fingers and scream, “See, SEE?!?”

While the likelihood of someone suffering from such intellectual impairment as Donald Trump copping a plea is negligible, even after Rudy rolls on him knowing that he won’t do well in a Georgia prison, does that mean the right to trial should belong to the public rather than Trump?

As a nation, we all have a shared stake in seeing the government’s allegations against Trump tested in open court. We need to know what he did, what he tried to do, what he said to others, and what they said to him. We must assess whether the witnesses for and against him are credible based on their demeanor, their feelings toward Trump, and whether they’re testifying against him in order to save their own skins. Then there are the myriad legal arguments the defense will advance, including that the statutes in the indictment don’t actually cover the alleged conduct, that Trump lacked the requisite mental state, and that he was exercising his constitutional rights of free expression and to petition the government for redress of grievances.

But if he pleads guilty, none of those factual determinations will ever get made and none of those legal arguments will ever be adjudicated. Instead, the entire country, including Trump supporters and Trump revilers alike, will just have to take his and the government’s word for it that he committed crimes—whether he did or not.

It’s tempting to conflate our “shared interest” with a “stake” in Trump’s trial. Of course we want to know whether a former president and candidate for president was a scoundrel, a delusional nutjob or merely an aggrieved whiner, but these voyeuristic desires don’t change the fact that Trump will suffer the consequences of a criminal conviction and sentence, just like any other criminal defendant.

More importantly, using two outlier high profile individuals as a tool to shift the right to trial from the defendant to the public, lest its blood lust go unsated, is disingenuous. The Constitution gives the right to choose a trial to the defendant, not the public or even the defense lawyer. The right expressly belongs to the accused.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

If the government and the defendant reach a deal, regardless of whether proponents of trials approve of the defendant’s reasoning since the defendant, not the proponents, could spend every night for the rest of their lives thinking about the fact that they could have walked free in five years rather than die in prison, then the public has nothing to say about it. The government prosecutes. The defendant gets prosecuted. The public does not get a seat in the well or a vote in whether the defendant gets to cop a plea or not.

No matter how much the public would adore watching the trial of either Hunter Biden or Donald Trump, the rules don’t change when the accused is Joe Blow. There is no doubt that our legal system should have many more trials than it does, and that the negative incentives that have been piled on over the years have taken us too far away from the exercise of the right to trial. But public interest in these high profile prosecutions doesn’t shift the right away from the defendant and onto the public, no matter how many people would be thrilled to watch the trial. This isn’t sport, but law, and the constitutional right to trial of the accused doesn’t become a public right no matter how much corn is popping.

12 thoughts on “Who “Owns” The Right To Trial?

  1. Miles

    What’s weird about Clark’s zealotry is that it’s not really about saving innocent defendants from conviction, though he will use that argument when it’s convenient to him. He couldn’t care less about an innocent defendant losing after trial and doing life when he could have taken a plea to probation before trial. You’ve explained to him how this works. He knows. He just fetishizes trials, regardless of outcome and who gets harmed in the process. to what end is unclear, but Clark would be fine with an awful of innocent people rotting in prison as long as they went to trial.

    What’s his end game, to be remembered as the man who ended plea bargaining? Does he have any grasp of the damage that would do in the real world?

    1. Erik H

      Lots of damage in the short term, because people would get smacked w/ the trial tax.

      Long term, it would probably improve things, I think. If everyone had a trial then penalties and sentencing would adjust to suit. Governmental power would be a bit harder to screw with because it would be more open.

      But either way, it won’t change. Any competent counsel should advise clients to take a plea if it’s good for THEM. It would be really unethical to advise clients with the goal of “systemic improvements.”

      1. Miles

        Long term, it would probably improve things, I think.

        Willing to bet someone else’s life on that? Why does it never occur to people that the system will accommodate the change, and will find yet another way to burn the deft?

  2. Elpey P.

    The mob outside the courthouse says it just wants to see all the evidence and then it will put away the pitchforks. Because if there’s one thing recent history tells us it’s that public trials dispel disagreement and bad faith.

    1. szr

      Public trials might not dispel all disagreements or bad faith, but they do, in fact, positively impact peoples’ perception of the fairness of procedures and outcomes. Academic researchers have shown this effect in studies. (see e.g., Xu J, Liu C. How Does Courtroom Broadcasting Influence Public Confidence in Justice?).

      Our host is entirely correct that the right to a trial belongs to the defendant, and thus, the defendant’s wishes must be followed. Even (especially?) when the defendant chooses a exercise that right in a way that deprives everyone else of some benefit.

      1. Elpey P.

        Yeah, the effect on public trust is a side issue so even if this guy were correct about perceptions of “legitimacy” it wouldn’t matter. But it looks like that study is about another kind of trust (“can I trust this system to treat me fairly and with respect when it’s my turn?”) and probably not the sort that highly contentious politically-charged cases involving hated public figures that are breeding grounds for misinformation are likely to help.

        The idea it would be “a disaster” if Trump pleads guilty because of the effect it could have on Americans seems downright ludicrous. Gertruding about his rights aside, it’s hard to imagine a less worrying outcome than “the entire country, including Trump supporters and Trump revilers alike, will just have to take his and the government’s word for it.”

  3. Anonymous Coward

    This is one of those “cut down every law in England to get at the devil” situations where it will be abused for endless partisan fishing expeditions.

  4. El_Suerte

    Do people have to allocute to specific facts and details under a plea deal, or can they just say guilty to each charge?

    1. SHG Post author

      They have to allocute unless they’re allowed to do an Alford plea. The extent of the allocution is up to the judge.

  5. Sacho

    As if a criminal investigation is not already ruinous enough to its targets.

    How would this suggestion even solve Clark’s problems? If the issue is that the prosecutor is going soft on Hunter, then the interests of both parties align – why would they introduce evidence Clark is desperate to see, when it won’t be necessary for a conviction? How does he imagine this trial going?

Comments are closed.