The Vanishing Trial, Revisted
It’s right there in the Declaration of Independence. The colonies rebelled and cut loose from England because King George III was “depriving us in many cases, of the benefits of Trial by Jury.”
Put another way, there was a time in this nation’s history when jury trials were so important we risked life and limb to secure the right to have one when accused of a crime by the government. That right is now enshrined in the Sixth Amendment to the United States Constitution. In civil cases, litigants have a more limited right to a jury trial guaranteed by the Seventh Amendment.
Today, lawyers and judges talk about the vanishing trial. The simple truth is that most criminal cases are resolved by way of a plea, and the overwhelming majority of civil cases settle before the parties see the whites of a jury’s eyes. According to a recent Justice Department study, about 95 percent of criminal cases are resolved short of trial by a plea of guilty. Another study estimates that about 90 percent of civil cases are settled without trial.
Is this a good thing?
Jurors are drawn at random and are supposed to be a fair cross section of the community. Their work reflects the collective consciousness, and hopefully, conscience, of everyman when faced with an issue important enough to get to court. Jury service is one of the few times a citizen who is not elected to office gets to make a decision about the allocation of public resources.
Jury service puts ordinary people on the front lines of history.
But powerful forces are at work emasculating juries.
First and foremost, there is a sense of mistrust of the jurors by judges and legal scholars. At the time of the founding, jurors were permitted to decide both facts and law. In other words, a jury decided not just whether a person did what they were accused of doing, jurors also decided whether the law under which the accused was brought to trial was justly applied.
In the famous pre-revolutionary war case of New York printer John Peter Zenger, a jury refused to convict him even though he admitted to printing words that amounted to a then unlawful attack on thecolonial governor of New York. The jury nullified the law, deciding that truth was and should be a defense to calling a thief a thief.
Almost every state in the union forbids jury nullification today. And the federal courts have frowned upon it since the late nineteenth century. Today, jurors are told they must follow the law as given to them by a judge, whether they like it or not. Our juries are but inspectors on the assembly line of justice, and are powerless to tell a feckless prosecutor or a bumbling judge that the law is, as applied in a given case, an ass.
We spin yarns about holding those accused of crimes “accountable,” but then treat jurors as moral imbeciles. Except in death-penalty cases, jurors are told not to consider the potential punishment in the event of a conviction. And when the prosecution errs, no one holds it accountable for destroying the life of an accused. The criminal justice system is a lop-sided joke, cheered on by the sorts of folks churning venom in the anonymous comments section of online papers. Everyone hates the accused, until they themselves, or a loved one, are hauled into court.
The next force undermining the power of juries is simple economics. Trial is expensive. On the criminal side, few members of the middle class can afford to meet the resources of the state, investigator for investigator, expert for expert and lawyer for lawyer. Those eligible for the services of public defenders often get excellent, but under-funded, representation. Few states pour as much into defending the accused as they do into financing police, prosecutors and prisons. We’ve long since lost the taste for liberty, preparing the tepid brew of security.
Our courts, too, seem intent on signaling to the accused that there are penalties to pay for exercising your right to a trial by jury. Consider the convictions of Donna Bello, Jill Platt and B.J. Hopkins. The three woman were targeted for prosecution by federal prosecutors as leaders of a what the women called “gifting tables,” and what federal prosecutors called a pyramid scheme. Hundreds of women participated, all equally culpable of participating in the scheme. (I represented Donna Bello.) Uncle Sam chose these three to make examples of them and to warn others.
Ms. Hopkins elected to plead guilty prior to trial. Ms. Bello and Ms. Platt elected to go to trial, and were convicted. Come sentencing day, the trial judge imposed lengthy prison sentences on the two defendants who stood on their Sixth Amendment rights; the pleading defendant was spared prison. Ms. Bello and Ms. Platt were, in effect, punished for exercising their right to a trial. The message: Forfeit your right to trial or suffer.
“Those sentences do not encourage respect for the law,” a former federal prosecutor told me after reading about it in the paper. “They are outrageous.” I suspect Thomas Jefferson would have agreed.
Seasoned criminal defense lawyers talk about the “trial tax,” the hidden penalty a defendant pays if he goes to trial and loses. There are judges throughout the state who warn clients about exercising their right to trial by telling them in open court that if they reject a plea bargain, things will only get worse for them if they later decide to plead guilty or are convicted at trial. I suppose it’s not extortion when done in open court.
If the prosecution is really seeking justice, its offers to resolve a case really ought not to be made contingent upon how much work it must do to get a conviction, or whether a person decides to hold the government to its burden of proof. The government’s cases are, after all, fixed. Prosecutors never tire of their dismal duties, they are paid the same daily rate.
Lady Justice wears blind folds. She holds the scales of justice aloft. Why are we permitting a hidden tax, economic pressure, and legal doctrines that deprive us of a sense of efficacy in our communities to tilt the scales?
We once fought to preserve the right to a jury trial. Now we do all we can to avoid them. Maybe we ought to take the reference to jury trials out of the Declaration of Independence. Its presence there mocks a timid people.