The demise of the jury trial

By Tor Ekeland

Ninety-eight percent of federal criminal indictments end as plea deals.  This means the defendant pleads guilty to a negotiated offer from the U.S. Department of Justice (DOJ), usually in exchange for the promise of a lighter sentence. Only 2% of federal indictments go to trial. Of that 2%, over 90% end with guilty verdicts. 

I used to believe all the canards about why our federal criminal system has turned into a system of plea bargains and not trials. The one you hear the most is that the government never brings unwarranted charges and consequently never takes a case to trial it can't win. I don't believe that anymore because I've seen the DOJ bring misguided prosecutions against innocent people more than once. One case in particular comes to mind, where an FBI Agent launched a mistaken investigation and then kept doubling down instead of admitting his mistake. In another case of mine a rookie Assistant United States Attorney didn't understand the law and threatened a client with a multiple felony count indictment for whistleblowing on corporate misconduct. There's no doubt in my mind that innocent people take plea deals because they've been caught up in erroneous, nightmarish DOJ investigations.

And that brings me to one of the main reasons people plead guilty to crimes they didn't commit and don't exercise their constitutional trial rights. The infamous, to defense lawyers, "Trial Penalty." Under the current federal criminal sentencing system, you're penalized for going to trial and run the risk of a harsher sentence if you do. I've had cases where the judge has said on the record that he would have given the defendant supervised release and no prison time if he just hadn't gone to trial. The current mindset in our federal criminal system is that you are punished if you exercise your constitutional right to a trial. To say nothing of the expense and emotional trauma of going to trial.

But consider that your right to a jury trial is the only explicit constitutional right guaranteed three places in the Constitution. Article III (criminal jury right), the Sixth Amendment (criminal jury right), and the Seventh Amendment (civil jury right). To say nothing about the Supreme Court case-law that holds that you shouldn't be punished for exercising your constitutional rights.

But there's a bigger reason there are so few trials. And that's because most lawyers suck at trials - it's a dying art form. That's not necessarily a critique of lawyers as it is of the dominance of the case-book method in U.S. law schools. The case-book method's primary emphasis is reading highly edited cases and arguing logically about them. This is a boon for desk bound academics like law professors, but trial skills are a secondary consideration, if they're considered at all, in U.S law schools. They're relegated to second - or third-year classes or clinics. But even those classes, clinics, and trial teams focus less on trial skills like Voir Dire (jury selection), or the psychology of the jury and judge as they do on the particular facts of a case, or hypotheticals that are presented as more logic puzzles to be solved than a persuasive art form that takes a lifetime to master. It's the difference between reading about how to hit a 97 mile per hour fastball, and actually relentlessly practicing hitting it. Between reading the rules of baseball, and actually playing the game.

I have a lot more to say on this, but I've got some trial prep to do. Thanks for reading.

Copyright 2019 by Tor Ekeland. All Rights Reserved

Tor Ekeland is a trial and appeals lawyer based in Brooklyn, New York. He's best known for his work defending hackers in federal criminal court.

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