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The Case of the Disappearing Criminal Jury Trial

by Christopher Zoukis

Every person accused of a crime has the right to a trial by jury. That right is enshrined in the U.S. Constitution, and is available to anyone charged with a serious criminal offense.

But the number of jury trials is dwindling, replaced by plea bargains.

 “‘12 Angry Men’ is more a cultural concept than a regular happening,” said Daniel C. Richman, a professor at Columbia Law School, referring to the iconic movie about jury deliberations during a criminal trial.

Evidence of the decline in jury trials abounds. In Wisconsin, 1.09 percent of all criminal cases ended with a trial by jury between 2009 and 2013, according to state data. In Santa Cruz, California, the period of 2007 through 2012 saw less than 2 percent of criminal cases go to trial; in 2011, the county didn’t have a single jury trial in a criminal case.

Former Santa Cruz County Judge Jose Lerma expressed shock over those numbers.

“It’s a startling statistic, yes,” he said. “What the reasons for it are, though, is very difficult to say.”

Cecelia Klingele, a University of Wisconsin-Madison Law School Professor and criminal law expert, believes the decreasing number of jury trials is cause for concern.

“If we really believe that jury trials are an important part of [the] American criminal justice system, we need to better understand why it is there are so few of them and what we can do to encourage their use in appropriate cases,” she stated.

A hypothetical scenario used by Professor Klingele in her classroom reveals a practical weakness in our justice system that may partially explain the plummeting number of criminal jury trials in America. Klingele poses this question to her students: If they were falsely charged with aggravated sexual assault, and the prosecutor offered to dismiss the felony in exchange for a guilty plea to a misdemeanor disorderly conduct charge, would they accept the deal?

Nearly all her students said they would take the deal. So would Professor Klingele.

“I would probably plead guilty under those circumstances because often times what is at stake is such a severe punishment for many crimes,” she said.

Jury trials are becoming extremely rare in federal criminal cases, too. In the Southern District of New York, records show there were only 50 criminal trials in 2015. Nine years earlier, in 2006, the number was more than double, the New York Times reported.

U.S. District Court Judge Jesse M. Furman has had one criminal trial in his four-plus years on the bench as of mid-2016. His colleague, federal judge J. Paul Oetken, has presided over four criminal trials in half a decade.

“It’s a loss,” said U.S. District Court Judge Lewis A. Kaplan. “[W]hen one thinks of the American system of justice, one thinks of justice being administered by juries of our peers. And to the extent that there’s a decline in criminal jury trials, that is happening less frequently.”

According to the New York Times, experts attribute the decline to rigid sentencing guidelines and the increased use of mandatory minimum sentences, both of which have greatly increased the power wielded by prosecutors.

“This is what jury trials were supposed to be a check against – the potential abuse of the use of prosecutorial power,” observed Frederick P. Hafetz, former head of the criminal division of the U.S. Attorney’s Office in Manhattan.

According to former U.S. District Court Judge John Gleeson, the increase in guilty pleas and lack of jury trials in criminal cases means that the evidence used for indictment “is hardly ever subjected to closer scrutiny by prosecutors, defense counsel, judges or juries.”

“The entire system loses an edge,” he said. “I have no doubt that the quality of justice in our courthouses has suffered as a result.”

How to reverse this trend? For one, eliminate the “trial penalty” that defendants face should they take their case to a jury trial, meaning they should not risk receiving significantly longer sentences if they are found guilty. Prosecutors should be forced to prove the government’s case and not obtain convictions by offering tempting plea deals regardless of the defendant’s guilt or innocence.  

 

Sources: www.nytimes.com, www.gazettextra.com, www.nogalesinternational.com


 

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