Wednesday, October 13, 2010


The title of the post links to the Florida Bar ("motto: "Lawyers hating Lawyers") News article about the serious decline in the number of jury trials.

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.


Anonymous said...

DOM tries cases.

Anonymous said...

We don't go to trial for a number of reasons. But we are all to blame.

I think that first and foremost, many of our clients do not want to go to trial. Think about it. Even if you were charged with a 2nd degree misdemeanor, do you want to take a chance with a jury? Trials are always risky. Many of our clients will tells us upfront that they don't want to go to trial. They just want the case to go away. After enough time, that PTD or probation plea looks pretty good.

Then there is us. Simply put, it is not economically sound for us to close shop for a few days to try a case. If you miss that phone call, the prospect will call someone else.

The judges. Too many judges in that building that will punish your client for exercising a constitutional right. Glick and Butchko (especially Butchko) are high on that list. Judges can be lazy and do not want us spoiling their 3 hour lunches and 2:30 tee times with jury selections and pretrial motions. If we ruin their day, they will prepare to ruin ours, and our clients.

The system is not set up to try cases. In the 1960s, when we had a quarter of the cases in the criminal system, we could afford to try more cases. And also, back then (at least according to some real old timers and old school judges), there were no depos, no continuances, no nothing. Either plea or go to trial, but it was usually done within 90 days of arraignment. Now we take our time.

I think it's a multitude of factors. But honestly, many of our clients are guilty and it's often best for us to plea them out. But plea negotiation is a very important and often under valued part of what we do.

Your negotiation skills and relationships with prosecutors will often do more good for your clients than your trial skills.

Anonymous said...

I thought the current State guidelines ( yes it is the Punishment Code) says that a score of 22 or below REQUIRES a NON State sentence and the court can NOT send a client to prison if the score is 22 or below?

Anonymous said...

Concerning the state's decision to not pursue an appeal of the law dissallowing gays and lesbians from adopting children from state custody, Republican attorney general candidate Pam Bondi's silence is interesting.

Repubican attorney general candidate Pam Bondi vowed to appeal the 3rd DCA all the way to the Florida Supremem court.

What is her position now?

Will she change her stance and be the great non-politician outsider everyone makes her out to be? Or will she admit that experience matters and that her lack of experience makes her making mistakes in judgment more normal than just an accident.

Pam Bondi is too extreme to be our attorney general.

Pam Bondi is the inferior candidate in this race.

Pam Bondi has no, none, nada, nine, poltiical experience.

As lawyers, we should tell our friends and family, our staff and anyone else willing to listen that the state of Florida deserves better than Pam Bondi.

Vote for Dan Gelber. Vote for Florida.

Gays and lesbians, heterosexual aduls and orphaned children need us to get the word out.

Pam Bondi should not be the next attorney general!

Anonymous said...

One reason for the lack of trials (in Miami-Dade County State Court)
is the wimpy attitude of the PD's
office these days. Now everything is about "how many depositions have you taken this year?" instead
of "how many trials have you done this year?" They have to lead the line for all defense attorneys.

Another reason is that there are too many so-called defense lawyers out there who can't try cases, don't want to try cases, aren't qualified to try cases and thus
plead out everything. I've heard the younger generation brag that they haven't tried a case in three years. What kind of crap is that?

Rumpole said...

6pm. Not so. A judge has complete discretion up to the statutory maximum. So a third degree felony that scores nsps can still get five years without any appellate remedy.

Anonymous said...

lawyers don't go to trial because the jury pool is comprised of a bunch of lazy and idiotic people who can't speak English but have been in this country for 20, 30 or even 40 years. They don't even try to learn the language of the country that they're receiving benefits from, but these are the same people who are quick to blame the government for everything that goes wrong in their lives. Miami-Dade jury pool, in simple words, SUCKS (big time)

Kent said...

I have heard prosecutors say that with the crush of cases, they don't have time to go to trial. I would hope this isn't part of the equation, but I suspect there is some truth to the sentiment.

Anonymous said...

Rumpole you need to re-read the statute, DS is quoting it.

Anonymous said...

To 7:31pm,

What exactly makes a lawyer qualified to take a case to trial? I'm not talking about capital murder, but your run-of-the-mill 2d felony.

Anonymous said...

True that Judge has discretion, within limits. There is precedence that sentencing a defendant harshly for excercising its rights violates due process. Granted it is US Supreme Court precedence, but why not. Discretion is necessarily limited by the Constitution, although it will take a fight, as have other supreme court precendence, but why not. At some point, the financial strain of the trials and appeals, coupled with prision over population will take a toll, its all about economics. I guarantee you, right now the Miami-Dade Corrections is ready to collapse, if we puch misdemeanors to trial, we will make the point, but if we sit idle, the screwed up system wins.

Anonymous said...

Here's what I believe is a related question: Why do we hear so much whining from some of the young attorneys about their workloads when the number of arrests is down so much?

Remember what things were like in County Court pre-merger (when DUI/traffic was separated from Other Crimes/Misdemeanors)? The traffic folks worked insane hours, but most loved it. The ones who didn't want to work like that went to Other Crimes. Guess what? The system actually worked a lot better.


While many of the young lawyers have great talent and work hard, too many seem to think they're entitled to their paychecks and promotions without putting in the time. It's like they think they can learn case law by osmosis (or hanging out). So frustrating.


Anonymous said...

Another reason, among many, is that there's no money in going to trial for most private defense attorneys. The top ones will go to trial, but 75% of the state level defense bar makes more money back at the office signing clients than sitting in a courtroom trying a case.

I remember there were some ASAs who would send certain private defense attorneys a rights waiver form in discovery, knowing there wasn't a snowball's chance in hell they'd go to trial. PDs, on the other hand, for the most part were there to try cases. Don't know if that's still the case these days.

Anonymous said...

The reason I don't go to trial very often is called Motions. I win more cases with good pre-trial motions than with juries.
Break the State down ahead of time and they see it's not worth it for them to go trial and have me get a not guilty.
The cases that I can't win via motion practice are usually those where the defendant wants to take a plea, and for various reasons, it's usually in their best interest to do so.
And, agreeing with 5:22, good negotiations are often undervalued.

Anonymous said...

Federal civil jury trials are WAY too expensive and risky. Think about it, $100k (at least) for a federal civil jury trial, only to put your financial fortune in the hands of a bunch of under-educated strangers...no way.

Plus, the statutes and Rules are written to avoid civil jury trials. Mandatory mediation in every civil case, attorneys fees in overtime and ADA cases, etc., real damages near impossible to prove in trademark cases. Going to trial is a losing proposition for both sides.

Even if you win, what's the point? Unless you are suing Uncle Sam or a big corporation, defendants in Florida can just use any available cash on hand to pay down their home mortgage, declare bankruptcy, hide behind homestead, and leave your paper judgment for you to wipe you a$$ with.

Anonymous said...

Interesting that most bigots are ignorant, take the author of the comment posted at 9:29, he complains that the jury pool is comprised of citizens who don't know english. If true that means that the citizens who do know english are using their skill to avoid jury service and the only patriots in the county don't speak english. Sounds like another excuse for some racsist asshole to avoid going to trial.

Anonymous said...

To 11:41:

No, what I think the poster was claiming was either that very few in Miami speak english. However, a more realistic theory is that MOST people in Miami speak both English AND spanish. Yet when caleld to jury duty, many of them feign not being able to adequately speak the language. That means that they are not "patriots" like you claim but rather people who are trying to get out of jury duty. Sadly - more akin to the poster who said that people don't appreciate the country that took them in. WHile I do not agree with the poster, there is a kernel of an argument in what he was trying to say albeit in an unclassy manner.
Just because you're paranoid doesn't mean people aren't after you... and just because someone has a negative opinion about another does not make them a "Bigot."

Anonymous said...

David S is right, They just changed it . guidelines now say the judge MUST sentence to a non state sanction at 22 or less.
Jason Grey

Anonymous said...

"A judge has complete discretion up to the statutory maximum. So a third degree felony that scores nsps can still get five years without any appellate remedy."

As noted above, the statute was amended at the last legislative session. A defendant who scores 22 or below MUST receive a non-prison sanction unless the judge makes specific written findings, hence there IS a potential appellate remedy under those circumstances (de novo if there are no findings, abuse of discretion if there are).

Anonymous said...

For the defense attorneys that want a trial, just pick up a case north-of-the-border ("Bro-weird") and your bound to go to trial. By the time you finish speaking with the ASA assigned on the case, the supervisor, and whoever else might be involved in the case within the office, its probably more beneficial to try the case than to actually spend all that time speaking to everyone in the office.

Additionally, good relations always helps in resolving cases when one is negotiating a plea at all levels: Federal or State. Keep in mind that a good criminal defense attorney is well-versed in the law, good in pre-trial motions, and effective in trial. This is what should drive us all to become advocates for our clients.