Trial is a Bad Word

By Johanna Zapp

This is part of an article that appeared in the New York Times recently. It talks about the decline of jury trials in our courts. I was recently on National Public Radio talking about this exact issue. I was commenting on how defendants are terrified at the notion of going to trial. An educated defendant has heard the stories of what happens when some people go to trial. Instead of the 4, 5, or 6, year deals they could have received, they end up with 25, 30, 35 year sentences. It’s a sad reality.

Trial by Jury, a Hallowed American Right, Is Vanishing

By Benjamin Weiser (NYTimes Aug. 7, 2016)

The criminal trial ended more than two and a half years ago, but Judge Jesse M. Furman can still vividly recall the case. It stands out, not because of the defendant or the subject matter, but because of its rarity: In his four-plus years on the bench in Federal District Court in Manhattan, it was his only criminal jury trial.

He is far from alone.

Judge J. Paul Oetken, in half a decade on that bench, has had four criminal trials, including one that was repeated after a jury deadlocked. For Judge Lewis A. Kaplan, who has handled some of the nation’s most important terrorism cases, it has been 18 months since his last criminal jury trial.

“It’s a loss,” Judge Kaplan said, “because when 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.”

The national decline in trials, both criminal and civil, has been noted in law journal articles, bar association studies and judicial opinions. But recently, in the two federal courthouses in Manhattan and a third in White Plains (known collectively as the Southern District of New York), the vanishing of criminal jury trials has never seemed so pronounced.

The Southern District held only 50 criminal jury trials last year, the lowest since 2004, according to data provided by the court. The pace remains slow this year.

“It’s hugely disappointing,” said Judge Jed S. Rakoff, a 20-year veteran of the Manhattan federal bench. “A trial is the one place where the system really gets tested. Everything else is done behind closed doors.”

Legal experts attribute the decline primarily to the advent of the congressional sentencing guidelines and the increased use of mandatory minimum sentences, which transferred power to prosecutors, and discouraged defendants from going to trial, where, if convicted, they might face harsher sentences.

Julia L. Gatto, a federal public defender, recalled the case of Oumar Issa, a Malian arrested in Africa in a 2009 sting operation on charges of narco-terrorism conspiracy, which carried a mandatory minimum 20-year sentence, and conspiring to support a terrorist organization, which had no minimum.

Although Ms. Gatto and her client believed that elements of the case were weak and that there were strongly mitigating circumstances, Mr. Issa concluded that the risk of going to trial was too high. He pleaded guilty in 2012 to material support, with prosecutors dropping the other charge. He received 57 months in prison. “It was the only thing he could do,” Ms. Gatto said. “His hands were tied.”

Judge Gleeson wrote that because most pleas are negotiated before a prosecutor prepares a case for trial, the “thin presentation” of evidence needed for indictment “is hardly ever subjected to closer scrutiny by prosecutors, defense counsel, judges or juries.”

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

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