September/October 2005, Page 32

The Advent Of The 'Vanishing Trial' : Why Trials Matter
By John W. Keker

The Vanishing Trial” has everyone’s attention. That trials are increasingly an oddity is certain. One study found that in 2002, only 0.6 percent of civil cases filed went to trial, down from 1.8 percent in 1976.1 Data for criminal jury trials is just as extreme. Consider the various charts at the end of this article concerning criminal cases in federal court.

Lots of people, not just judges and lawyers, are trying to understand why trials are vanishing. For federal criminal cases, it has become commonplace to blame the guidelines:

Although it is difficult to specify conclusions about the direct impact of the sentencing guidelines on trial rates, it is unmistakable that the number of criminal trials has decreased with the implementation of the guidelines. From 1962 to 1991, the percentage of trials in criminal cases remained steady between approximately 13 percent to 15 percent. However, since 1991, the percentage of trials in criminal cases has steadily decreased … from 12.6 percent in 1991 to less than 4.7 percent in 2002. That the guidelines contributed to this decline is consistent with the assumption that system-wide implementation of the guidelines did not take place until at least the beginning of the 1990s, due both to constitutional challenges and to an overall period of adjustment.2 

But sentencing guidelines are simply the last and worst vestige of a trend toward plea bargaining that has overwhelmed America’s criminal justice system.

In the last quarter of the 19th century, judges found themselves confronted by an onslaught of new, and newly complex, civil suits brought on by the ravages of industrial machinery. They saw no choice but to make terms with the new order in the criminal courts. They embraced plea bargaining and turned their considerable sentencing power to its purpose. Sustained now by the two most powerful courtroom patrons, [i.e., judges and prosecutors], plea bargaining swiftly became the dominant force in criminal procedure. It pushed aside the indeterminate sentence, and it supported those institutions, such as probation and the public defender, that aided its cause.3

No one puts it more bluntly than Chief Judge Young of Boston in United States v. Green:

The Department [of Justice] is so addicted to plea bargaining to leverage its law enforcement resources to an overwhelming conviction rate that the focus of our entire criminal justice system has shifted far away from trials and juries and adjudication to a massive system of sentence bargaining that is heavily rigged against the accused citizen. 4

A comparison of conviction by guilty plea and conviction after trial says it all.

The 2005 ABA White Collar Conference in Las Vegas might as well have been titled “Cooperate or Die.” One panelist identified the only issue facing a lawyer for a corporation under investigation as “whether to spill your guts Monday afternoon or wait until Tuesday.”

To me, who worked as a law clerk to retired Chief Justice Earl Warren at the beginning of my career, this state of affairs is ironic. One of the great achievements of the Warren Court was to make criminal procedure match more closely the constitutional ideal, an ideal depending on trials, where the government is put to its burden of proof, with defendants represented by able lawyers, and trials that exposed police practices, prosecutorial misconduct, and judicial incompetence. The irony is that after arming the defendant with rights, including the right to counsel, and making the constitutional ideal more actual, what happened? The system became even more inquisitorial, with police and prosecutors, not judges or defense lawyers, deciding what happens to criminal defendants.

Judges led the change to fewer trials and now they regret it. It began with civil cases, where judges viewed trials as the lawyers’ “failure” because “a bad settlement is almost always better than a good trial.”5 With efficiency as their watchword, reformers sold their ideas based not on fairness or justice but on whether “the system” would work more smoothly. In civil cases, ADR, expanded use of summary judgment, early neutral evaluation, and in criminal cases, the sentencing guidelines, have so reduced the number of trials per district court judge that one judge said:

The American jury system is dying out — more rapidly on the civil than on the criminal side of the courts and more rapidly in the federal than in the state courts — but dying nonetheless.”6

So who cares if we are trying fewer cases? Well, for one, more defendants would be acquitted or dismissed if more cases went to trial, so those defendants should care. In 1975, an article appeared in the Harvard Law Review titled “A Statistical Analysis Of Guilty Plea Practices In The Federal Courts.”7 The author, Michael Finkelstein, asked the question “what proportion of those who pleaded guilty in the federal courts would not have been convicted if they had contested their cases?” He called that proportion the “implicit rate of non-conviction.” His conclusion was astonishing.

The 69 percent implicit non-conviction rate for the marginal group means that at least 1/3 of all defendants pleading guilty in [high rate of guilty plea] districts would ultimately have escaped conviction if they had refused to consent.8 

Finkelstein found that most of these non-convictions would be dismissals, dismissals at the instance of the prosecutor who found her case too weak to proceed.9 But figure it out for yourself. As Yogi Berra said, you can observe a lot by just looking.

The first reason why trials matter is that more defendants would get off, which after all is our job. Try more cases, win more cases. Most acquittals occur because the prosecution makes a mistake, either in bringing the case or during trial of the case. Taking even “unwinnable” cases to trial often leads to surprising results. Listen to Judge Charles Wyzanski, who visited the Northern District of California from his fiefdom in Boston, about a case I tried before him in San Francisco. He discussed it during a lecture he gave at the University of Georgia.
 
Judge Learned Hand used to refer to the trial lawyer as engaged in a black art. My three and more decades of experience lead me to believe that you cannot, no matter what your experience, safely predict the outcome of a case in a trial court with a jury. Two weeks ago, sitting in San Francisco, I was trying a jury case. A black, crippled, blind man was a defendant. He was charged with having forged the endorsement on two federal welfare checks and having uttered, i.e., passed, those checks. The testimony against him was given by the Chinese born woman who was operating the store where he allegedly passed the checks. She was for two days on the stand, and was rigorously examined and cross-examined. I am absolutely certain that 90 percent of you, and hopefully 100 percent of you, if you had been jurors, would have voted that the man was guilty. There was absolutely not a shadow of a doubt in my mind. It was easy to identify him. There could be no question that the checks were forged, and there was no doubt he was a customer.

He was acquitted. And I will tell you why, as I reflect about it, because I do try to reexamine what goes on in my court so that I may in the future not guess so incorrectly and not make so many errors. I do not believe the acquittal was chiefly due to sympathy for a poor, black, blind cripple. He was represented by John Keker, who is, I suppose, 27 years of age … a dedicated professional with a strong sense of purpose. He proved a theorem that I’ve often uttered, but didn’t think of in time: David can always beat Goliath. A young person armed with nothing more than the five smooth stones from the brook who comes into a courtroom as a lawyer manages to persuade the jury that it is he and not the defendant who is on trial. And the result in that case was one I should have foreseen, but didn’t foresee.10 

As much as I rejoice in Judge Wyzanski’s praise, he had it completely wrong. The reason Blind Bill Hartsaw was acquitted could never have been foreseen before the trial. Simply put, the prosecutor screwed up. The woman in the store had written in Chinese “blind and black” on the back of the check. On direct examination, when the prosecutor tried to have her point that out, I objected on hearsay grounds. In those days before the Federal Rules of Evidence, I had enough law on my side to argue that the out-of-court statement, even of identification, should not come in until her identification had been impeached — in other words it had to wait for redirect. I cross-examined her so long that the prosecutor forgot all about it, and the fact that she had written “blind and black” on the back of the check never came into evidence. Another harmless criminal returned to San Francisco’s Tenderloin.

But regardless of how satisfying it is to free the innocent (or return a harmless criminal to the street), there are other equally important reasons we should try more cases, and challenge the government more.

Probably the most obvious reason why trials matter is that without trials the law will not develop: trials provide the meat for appellate decisions.

In the croquet match in Wonderland organized by the Queen, Alice found that three of the croquet players had already been executed for having missed their turns. She also saw that “they don’t seem to have any rules in particular; at least, if there are, nobody attends to them.”11 If nobody attends to the rules, there are no rules. If there are no trials, nobody attends to the rules.
Judge Patrick Higginbotham gave a speech entitled “So Why Do We Still Call Them Trial Courts?”12 It is a good question. He concluded:

Ultimately, law unenforced by courts is no law. We need trials, and a steady stream of them, to ground our normative standards—to make them sufficiently clear that persons can abide by them in planning their affairs—and never face the courthouse—the ultimate settlement. Trials reduce disputes, and it is a profound mistake to view a trial as a failure of the system. A well conducted trial is its crowning achievement.13

Guilty pleas, on the other hand,  create either no law, or bad law. Such abominations as the application of 18 USC § 1512 to statements made to corporate internal investigators, corporate promises not to indemnify employees in return for deferred prosecution, and conviction for “failure to report suspicious activity” arose in the context of guilty pleas or deals for deferred prosecution. We have people pleading guilty to crimes they weren’t aware they committed, in order to avoid the draconian penalty for going to trial. Particularly in white collar cases, the state of mind element of the offense is a legal, not psychological, construct. Much business conduct, however deplorable, is only a crime in hindsight.

In Arthur Andersen, jurors were told that “[a]n improper purpose, for this case, is an intent to subvert, undermine, or impede the fact-finding ability of an official proceeding.”14 What is “objective” about that? Do you think the legal advisors who caused Andersen’s conviction believed they were committing a crime? Don’t all lawyers who try to influence fact finding in some way “undermine” it, whatever that means?

The knowledge required to violate the Foreign Corrupt Practices Act is this:

When knowledge of the existence of a particular circumstance is required … such knowledge is established if a person is aware of a high probability of the existence of such circumstance, unless the person actually believes that such circumstance does not exist.15

So, when your manager in a Middle Eastern country tells you that he hired Sheik Mullah, a former schoolmate of the finance minister, to help sell your product to the government, did you just become a felon?

How about the Computer Associate executives who are charged with lying to Wachtell Lipton lawyers during an internal investigation? Do you think they knew they were committing a federal crime? And how about all those corporate officers, now indicted, who thought that their auditors, accountants and lawyers would speak up if they saw something that was over the line?
Our system of justice demands trials to work. We have a “battle model” of justice. Sometimes it leans towards “due process,” as in the Warren Court years, and at other times it leans towards “efficiency,” as it has under Chief Justices Burger and Rehnquist. But at heart the system is based on battle, usually called, in the quaint way of the English, “the adversarial system.” It works on the premise that conflict and contradiction is the way to truth. The inquisitorial system, in use throughout most of the world, also gives prosecutors enormous power to investigate and decide who to charge, but rarely even permits guilty pleas. The inquisitorial system recognizes that guilt is a legal, not empirical, concept, and abhors plea bargaining.

Our prosecutors are trained to represent the state in the battle model. In our system, they need resisting, they need to be kept honest — indeed, in my opinion, they need to be kept humble. The only thing defense lawyers have to keep prosecutors in check is the threat that we will embarrass them by winning at trial. If they know we won’t go to trial, we have nothing. One SEC lawyer told a colleague that the SEC in the old days would not bring a case unless it had at least a 70 percent chance of winning. Now, he said, SEC lawyers bring marginal cases if they think they have a 30 percent chance of winning, because they know their cases will settle without a trial.

Without trials, the jury system will atrophy; citizens will forget how to be jurors, forget that the government can be wrong. Jurors are already showing signs of forgetting. After several recent high profile white collar cases, jurors explained their guilty verdicts not with evidence or by the burden of proof but with speculation about what the defendant “must have known.” Prosecutors urge them to substitute “common sense” for proof. This development, if it continues, is serious, not just to the legal system, but to democracy itself.
The jury is … first and foremost, a political institution and must always be judged from that point of view.16

De Tocqueville rightly saw juries as crucial to the American experiment in self-rule.
… the jury, the most energetic method of asserting the people’s rule, is also the most effective method of teaching them how to rule.17

Other countries find it simply astonishing that citizen jurors, not judges, decide who is guilty and who is not guilty. What they don’t get is that it is not so much that jurors make great decisions, rather it is that they are not judges. Judges are bureaucrats, part of the system. As G. K. Chesterton said:

The horrible thing about all legal officials, even the best … is not that they are wicked … not that they are stupid … it is simply that they have got used to it.18

A little appreciated aspect of the Supreme Court’s Booker19 decision is that it and its predecessors Blakely20, Apprendi21 and Ring22 represent an increasingly loud endorsement by at least the conservative block of the importance of jury trials. For example, in Blakely v. Washington, the Court said the right to trial by jury

is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.”23

And how about what trials do for judges? A good trial judge is special; not a clerk, not a tyrant, not a humorless control freak. Trials expose incompetent or corrupt judges, judges who have no business playing the assigned role of “neutral arbiter.” Without trials, judges can spend years hiding their shortcomings behind their clerks and staff.

Another virtue of trials over pleas is that trials are public, while most of what goes into a plea is not. The Rule 11 recital is ritual, not substance. Someday during a plea I will do something I have always wanted to do. When the judge asks, “Have any promises or threats been made to you other than those recited here?” I will burst out laughing when the defendant answers as instructed. The honest answer is always “I am pleading guilty because I understand if I go to trial and lose you will give me four times the sentence, and that scares the [expletive] out of me.”

Trials let light into the process, helping keep prosecutors honest, cops more honest, judges in check. Guilty pleas and deals occur behind closed doors, away from public scrutiny, where, as Lord Acton warned:

“Everything secret degenerates, even the administration of justice.”24

I can hear you now, protesting that “behind the scenes” deals benefit your clients, as you take advantage of the overburdened prosecutor to make yet another “good deal.” In many instances that may be so. I am not arguing for the trial of every case, just the trial of more cases, the hopeless ones where the deal is not that great anyway, the marginal ones where insistence on trial can result in dismissal, and the ones where you can see daylight all the way to acquittal.

The last reason why trials matter, the one most dear to me, is that only frequent trials will guarantee the survival of the warrior class: defense counsel. Being a real, i.e., adversarial, defense lawyer is hard. Fear stalks you. Before the trial starts in a tough case, we all feel like the guy who whines “Mom, I don’t want to go to school today.” His mother asks him “Why?” “The kids aren’t nice to me and they all hate me.” His mother says, “Well, you have to go to school.” He says “Why?” She says, “Because you are 45 years old and the principal.”

Trials are nasty and, yes, confrontational. You cannot try a case without suspecting the motives, even the integrity, of your opponent. The horror of defeat looms large. Opposing the government can be terrifying, particularly when you are friendly with, and probably belong to, the same associations as the prosecutors and the judges. Many of us can confront our enemies; few can stand the obloquy of friends.

Parenthetically, that’s one of the things I always thought was wrong with staying a public defender too long: you become too much a part of the process, and too much of a colleague with the other bureaucrats in the criminal justice system. Perhaps we are all prisoners of our own experience, but my time as a federal public defender (two years, trying lots of cases) seemed just right. I was idealistic and willing to try anything when I started, and left before I burned out. My late partner and great friend, Bill Brockett, when he was a federal public defender, had a recurring nightmare that he was standing in a cemetery watching his client being lowered into the ground in an open coffin, alive, while Bill, the judge, the prosecutor, the probation officer, and other “officers of the court” looked on. Bill always woke up as the defendant was screaming for help and dirt was being thrown on him. Bill didn’t want to be there just to provide due process; he wanted to save his client.

It takes courage to try difficult cases, ones we will probably lose. Recently in San Francisco two terrific young federal public defenders, Shawn Halbert and Rebecca Sullivan, tried a case I admired greatly. Their client was charged with illegal entry into the United States from Mexico. He had already pleaded guilty to the same offense twice before. It was a tough case, with a guideline range of 120-150 months. After some digging, Shawn and Rebecca figured out that their client had no idea where he was born (isn’t our birth always a matter of hearsay) but that family members in Mexico believed it possible that the defendant’s mother had been in the United States (illegally) at the time he was born. If that were true, he would be innocent. If there were a reasonable doubt about that, he deserved an acquittal. Unfortunately the jury found it less compelling than I did, and he was convicted. But the point is they tried the case, and made a real run of it.

Another personal example of why trials matter, and why defense lawyers should try more cases, arises out of the prosecution of my friend Patrick Hallinan. Patrick is a noted defense lawyer in San Francisco who my partner Jan Little and I defended on RICO, conspiracy and obstruction charges in federal court in Reno, Nevada. A Federal Drug task force there had been rolling up drug smugglers by means of “we will go light on you if you give us the next guy” for years. Scores of people had pled guilty. Hallinan represented one of the kingpins for a while, finally made a deal for him, and turned him over to the task force. The drug kingpin, having nowhere up to point, decided to offer the task force his defense lawyer and Patrick was indicted. These prosecutors had not tried a real case for years. They had forgotten how to evaluate a witness, they had forgotten what juries thought of the deals they made, and they had forgotten how offensive their tactics were. Patrick’s trial, closely watched by the press, monitored by a stern, even-handed judge, was a debacle for prosecutors, as one witness after another was exposed as a lying dog. It took the jury just a few hours to acquit Patrick. But on paper, i.e., reading the DEA’s 6 reports, he never had a chance.

What can be done? I see Booker and the (at least temporary) demise of the guidelines as a great opportunity. Before Booker, the law of punishment was becoming the law of crime. Criminal defense lawyers in federal court calculated the guidelines and went from there. Since the guideline sentence was usually staggering, any deal became worthwhile. Why fuss with motions, much less trial, when so much prison time was at stake? But now the trial penalty is not automatic. Judges can decide, based on factors other than simple-minded computations, what a just sentence should be. Maybe we can shame them into taking the penalty out of going to trial.

Notes

1 Brian J. Ostrom, Shauna M. Strickland, and Paula L. Hannaford-Agor, Examining Trial Trends In State Courts: 1976-2002, Journal of Empirical Legal Studies, Vol. 1, No. 3 (Nov. 2004), at p. 768.

2 Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, Journal of Empirical Legal Studies, Vol. 1, No. 3 (Nov. 2004), at p. 495.

3 George Fisher, Plea Bargaining’s Triumph: A History of Plea Bargaining in America, (Stanford, CA: Stanford University Press, 2003) at 230.

4. United States v. Green, 346 F. Supp. 2d 259, 265 (D. Mass. 2004).

5. Judith Resnick, Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III, 113 Harv. L. Rev. 924, 926 (2000).

6. United States v. Reid, 214 F. Supp. 2d 84, 98 n. 11 (D. Mass 2002).

7. Michael O. Finkelstein, A Statistical Analysis Of Guilty Plea Practices In The Federal Courts, 89 Harv. L. Rev. 293 (1975).

8. Id. at 309-310.

9. Id. at 311 n. 51.

10. Charles E. Wyzanski, Jr., An Activist Judge: Mea Culpa. Apologia pro Vita Mea, 7 Georgia L. Rev. 202, 208-209 (1973).

11. Ronald P. Sokol, Why We Don’t Just Lop Off Their Heads, Int’l Herald Trib., February 10, 2005 at p. 7.

12. Patrick E. Higginbotham, So Why Do We Call Them Trial Courts?, 55 SMU L. Rev. 1405 (2002).

13. Id. at 1423.

14. United States v. Arthur Andersen, 374 F.3d 281, 293 (5th Cir. 2004), reversed and remanded, 544 U.S. ___ (May 31, 2005).

15. 15 U.S.C. § 78dd-1(f)(2)(B).

16. Alexis de Tocqueville, Democracy In America, (Gerald E. Began, trans., Penguin Classics 2003) (1835) at 317.

17. Id. at 322.

18. G.K. Chesterton, The Twelve Men, from an essay in Tremendous Trifles, 1909.

19. United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005).

20. Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004).

21. Apprendi v. New Jersey, 530 U.S. 466 (2000).

22. Ring v. Arizona, 536 U.S. 584 (2002).

23. Blakely v. Washington, 124 S. Ct. at 2538-2539.

24. John Emerich Edward Dalberg Acton, Lord Acton and His Circle 166 (Abbot Gasquet, ed., 1968), quoted in U.S. v. Salemme, 91 F.Supp.2d 141, 148 (D. Mass. 1999), rev’d in part sub nom U.S. v. Flemmi, 225 F.3d 78 (1st Cir. 2000). n


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