Fact: From 1962 to 2002, federal civil trials decreased by nearly 10 percent, and federal criminal trials experienced an even greater decrease.
Fact: Florida Bar membership will soon pass 100,000 members.
So where are the trials going?
A few thoughts:
First: we make no pretense about understanding civil trials. How or why one would sue (or even serve) a debentured bond is well beyond our limited understanding of torts.
Second: As to criminal law, there is a built in bias to force a resolution of the case.
In Federal Court your client gets the 2-3 point guideline reduction for acceptance of responsibility in any case, and in drug trafficking cases with the ten year minimum mandatory, the safety valve provision can assure a 3-5 year sentence instead of risking a minimum ten year sentence if they go to trial and lose. The one good thing about the safety valve is that it puts the decision to waive the minimum mandatory in the hands of the judge and not the prosecutor.
In state court the incentives are similar. While there is no official acceptance of responsibility reduction in guideline sentences, there are marked differences between the prosecution's offer before trial and after trial. In many cases brave Judges will wade into the plea negotiations to help quickly resolve a case.
There are also similar incentive options available in minimum mandatory cases when the prosecution will often offer to waive the minimum mandatory sentence in exchange for a plea. However, as we have said before, there is no justification for putting the decision to waive a 25 year minimum mandatory sentence in the hands of a twenty five year old prosecutor as opposed to a fifty year old judge who has been practicing law for as long as the prosecutor has been alive.
Here are our thoughts on why criminal jury trials are disappearing in state criminal court:
The first problem starts with over charging by the police and the prosecution.
The woman who gets in a fight with her boyfriend and slaps him before leaving his apartment is just as likely to be charged with burglary with a battery (a non-bondable offense for which the client can receive life in prison) as with simple battery. (Yes, we know about the case law that you can't convict someone for burglary when they were invited in, but tell that to the prosecutors, not us.)
The man who slugs his cousin in a bar fight and then throws a beer bottle at him is as likely to get charged with attempted murder as misdemeanor assault and battery.
The two above examples are taken from cases we've tried. We once actually tried a case of attempted murder and aggravated assault where our client allegedly swung a simple office stapler at his co-worker. Not even the prosecutor could keep a straight face in closing when the jury was smirking at her as she attempted to menacingly wield the stapler and argue it was a "deadly weapon".
When officers overcharge a client and the prosecution files the case, lawyers are put in the position of telling their client that if they reject the plea offer of probation and proceed to trial, the maximum penalty would be 30 years (for a first degree felony) or life in prison ( for a PBL). Many clients understandably don't want to take the risk of putting their life in the hands of a judge.
Take a look at this case reported on the JAAB Broward blog this week:
Uh oh - Michael Robinson finished up his first felony trial recently, with Shlomi Presser scoring what he thought was a big win for the defense. He won a lesser of Possession of Cocaine, nullifying a Possession of Cocaine with Intent within 1000 Feet of a School charge that carried a three year minimum mandatory prison sanction. The minimum mandatory had been waived by the SAO prior to the trial, on the condition of an eighteen month sentence. In any event, because of the Possession lesser, the defendant no longer scored mandatory prison sanctions (meaning probation was ok), and she didn't have any scoreable priors. The SAO asked for 18-24 months in prison (there was also a cannabis near a school charge), and the defense naturally sought non-prison sanctions. Robinson then proceeded to sentence the defendant to three years, matching the original minimum mandatory penalty. Observers were reportedly shocked, since there were apparently mitigating factors as well. Oh well. What's that they say about defense lawyers who become judges ... ?
When judges do not sentence reasonably or rationally, and when they punish clients for going to trial, even when the proof rises only to a lesser included offense, they grossly and greatly affect the decision a client makes in deciding to go to trial. When a Judge conducts himself in a manner in which he repeats in chambers that he wants to earn the nickname "Maximum...." he forces clients to accept pleas where they otherwise would win or be convicted of less serious charges if he otherwise elected to go to trial.
The question is "where did the jury trials go"?
In criminal court the answer is that the jury trial has been reduced to a quaking and quivering mass of jelly, shaking in a corner, frightened of irrational judges and minimum mandatory prison sentences.
Our response to judges and legislators is simply this: be careful what you ask for in life, because you may get it.
See you in court, turning down plea offers and trying cases.