The Intentional Gutting of Trial by Jury

The Intentional Gutting of Trial by Jury August 9, 2016

The New York Times has an article about the almost total loss of trial by jury for the overwhelming majority of criminal defendants. Around 95% of all criminal cases now result in plea bargains, a result of prosecutorial leverage and the intentional underfunding of our public defender systems.

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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.

Unfortunately, the article does not mention the public defender system, which is a total failure and a constitutional disaster as currently administered. It’s up to each state, sometimes each county, to fund their own systems and there is virtually no money available. Public defenders have no ability or resources to actually provide a competent defense, no matter how well-meaning or idealistic they might be. We need billions, probably many billions, invested in that system to provide even a hint of actual justice.

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