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August 9, 2016

Highlighting the notable absence of criminal trials in a high-profile federal district court ... thanks to the modern "trial penalty"

Jury1Yesterday's New York Times had this article on the modern reality of negotiated federal criminal justice headlined "Trial by Jury, a Hallowed American Right, Is Vanishing."  Here are excerpts:

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.

In 2005, records show, there were more than double the number of trials: 106. And decades ago, legal experts said, the numbers were much higher. “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.  “This is what jury trials were supposed to be a check against — the potential abuse of the use of prosecutorial power,” said Frederick P. Hafetz, a defense lawyer and a former chief of the criminal division of the United States attorney’s office in Manhattan, who is researching the issue of declining trials.

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.”

In 1997, according to federal courts data nationwide, 3,200 of 63,000 federal defendants were convicted in jury trials; in 2015, there were only 1,650 jury convictions, out of 81,000 defendants....

Judge P. Kevin Castel, who helped to organize the court’s 225th anniversary celebration in 2014, recalled taking a friend, Mary Noe, a legal studies professor at St. John’s University, to see an exhibit of courtroom illustrations documenting Southern District trial scenes of past decades.  But as they reached the end, Professor Noe observed that the sketches of more recent defendants, like Bernard L. Madoff and the would-be Times Square bomber Faisal Shahzad showed them pleading guilty.  “I was like, what happened to the trials?” she recalled.

Judge Analisa Torres said she had felt the difference ever since joining the federal bench in 2013.  Judge Torres, a former state court judge who handled about two dozen criminal trials a year in Manhattan and the Bronx, said she has since had just a few such trials. “It’s day and night,” she said. On the state bench, she said, she spent her entire day in the courtroom but for the lunch hour. “Now, I am in chambers all day long.”

This article rightfully suggests that the vanishing jury trial is a sentencing story related to the distinctive severity of federal statutes and guidelines and the impact of the modern "trial penalty" in federal courts. Competent defense attorneys have to tell their federal clients that the decision to test the government's evidence at trial will almost always risk adding years, if not decades, to any eventual federal sentence on any charge that produces a conviction.

It is ironic, but not really surprising, that this problem has only gotten worse since the Blakely and Booker SCOTUS rulings a decade ago made much of a defendant's Sixth Amendment right to a jury trial.  Had the Booker court adopted a "jury trial" remedy to "fix" federal guideline sentencing rather than the advisory remedy, we likely would have seen an increase in jury trials focused on specific guideline enhancements (especially in fraud and other kinds of high-profile cases more common in the Southern District of New York).  In addition, modern federal sentencing doctrines that diminish the need for and significance of jury determinations — like guideline anhancements based on "acquitted conduct" and "uncharged conduct" and "relevant conduct" — would be no more.

It is also disconcerting, but not surprising, that federal district judges are now so quick to lament the lack of jury trials, but are still so slow to explore their powers and opportunities to encourage more trials.  Though subject to some legal uncertainty (and sure to generate some federal prosecutorial pushback), federal judges still could today consider requiring limited jury trials to aid the resolution of any major factual disputes that have major guideline sentencing consequences.  Notably, in other high-profile settings, especially with respect to the death penalty and fraud sentencings and collateral consequences, SDNY federal district judges have been willing to test the reach and limits of thier judicial authority to move the law forward as they see fit.  If these judges really lament the vanishing criminal trial so much, they can and should be more aggressively exploring just what they might be able to do about this problem.

August 9, 2016 at 09:39 AM | Permalink


Federal judges lamenting the lack of jury trials is a little rich, like Capt. Renault in "Casablanca" announcing he was "shocked" that there was gambling in the cafe. The lack of jury trials in criminal cases results from deliberate policy choices made by judges and prosecutors, the two groups with the most influence in shaping the federal sentencing guidelines.

A federal defendant who chooses a trial and loses will serve about 20 percent more time than one who pleads guilty. Phrasing the issue as the loss of the benefit of the reduction for acceptance of responsibility does not change that fact that there is a trial penalty. In addition, if the defendant testifies, "I did not do it," he will get a nearly automatic increase for obstruction of justice. That is a high price for letting a jury decide.

Even the judges who say they miss jury trials probably don't want to see much of an increase. Consider that in 2015, the jury trial rate in federal courts was two percent, 1650 jury trials total. Imagine if in 2017, ten percent of federal criminal defendants elected to go to trial. That would be 8100 jury trials every year. Since there is zero chance that the number of federal trial judges would be substantially increased, the federal courts would have to either stop doing nearly everything other than federal criminal cases or generate a large backlog of cases. The appeals from all those trials would suck up all of the oxygen at the appellate level. Surely somehow the criminal justice system would find some way back to the two percent level it now comfortably digests.

Posted by: Bryan Gates | Aug 9, 2016 10:17:49 AM

I read this almost more as whining on the part of these judges - that they find trials exciting compared with the other things they do.

As for a defendant testifying (as compared with merely pleading not guilty) "I didn't do it" yet then being found guilty, how is that not behavior that should be condemned.

Posted by: Soronel Haetir | Aug 9, 2016 11:24:39 AM


The number of DNA exonerations alone that we have had in this country shows that sometimes defendants are telling the truth when they say "I didn't do it" and they get convicted anyway.

Posted by: defendergirl | Aug 9, 2016 11:57:53 AM

There are some estimates that the sentences for offenders after trial are 6X higher than for those who take a plea. The deck is stacked.

Posted by: beth | Aug 9, 2016 1:00:05 PM


I don't see that as any sort of answer to the question. All systems have error, that's just an unfortunate part of life. That some of those defendants were being truthful is no reason to discount the considered judgement of the now-adjudicated-offender's peers that he was lying.

If we are going to discount guilty verdicts because some fraction of defendants are convicted despite actually being innocent we might as well ditch the attempt entirely. I don't find that a reasonable proposition.

Posted by: Soronel Haetir | Aug 9, 2016 8:50:03 PM

The drop in trials has been a continuing trend for a very long. The guidelines and mandatories have been around even longer. There is something else going on.

In my county in California there has been a significant drop in trials in the last 10-15 years despite several shifts to lighten sentences when compared to the fifteen years before.

Personally, I think there has been a substantial cultural shift among judges and lawyers driven in part by the massive complexity trials have become compared to 20-30 years ago. Discovery is more challenging, there Is more material to review, the career consequences of a loss are different and frankly the career consequences of having tried only a handful of cases are lessened these days. The bench has fewer accomplished trial lawyers and more people who checked the career advancement box on their way up. Most of those boxes have nothing to do with trying cases and being accomplished about it. All sides wants plea bargains, it is less work.

Posted by: David | Aug 10, 2016 9:37:01 AM

Excellent points, David, all of which also intersect with the modern increase in number of criminal cases charged as documented by John Pfaff in his research. Complex and time-consuming trials (and especially the possibility of a loss in those trials) are likely especially unwelcome among prosecutors who always are facing a huge stack of charges/indictments/cases.

It would be especially interesting to research if smaller/slower/safer districts and counties have relatively more trials because everyone has a relatively more time to invest in these activities.

Posted by: Doug B. | Aug 10, 2016 10:58:06 AM

"Behavior that should be condemned" and "unfortunate part of life" affords to high a level of infallibility to juries and dismisses the constitutional right to due process, respectively. Anyone who has sat at the far table knows that juries utterly fail to comprehend what "beyond a reasonable doubt" actually means. When that fact is accounted for, penalizing a defendant for rightly--or wrongly, it doesn't matter--denying his guilt obliterates the right to present a defense, and a post hoc penalty for exercising that right only tends to stifle defendants' use of that defense--either rightly or "wrongly." Ninety-seven percent of federal criminal trials end in a guilty verdict. Do you honestly believe that the government is that competent?

Posted by: MarK M. | Aug 10, 2016 12:27:23 PM


Like I said, I see quite a difference between a defendant pleading not guilty and that same defendant taking the stand and saying they didn't do it. I do not see the former worthy of condemnation while the latter certainly is. The former simply puts the government to meeting its burden while the latter (in terms of sentencing after a guilty verdict) says that the jury believes the defendant was lying on the stand.

As for why so many cases are resolved by plea I believe in the vast majority of cases the government can easily meet the BRD burden and the defendant knows it. I also see the significantly lower sentence received after a guilty plea as a gift rather than the longer sentence after trial as a penalty.

Posted by: Soronel Haetir | Aug 10, 2016 2:35:54 PM

Prof. Berman,

I do not believe it has much to do with the larger, busier jurisdictions. Prosecutor's offices, and the defense and the courts operate in a culture and those cultures are fairly fixed, but vary from place to place. Some have a trial culture, some do not, but all respond to incentives.

The current incentive is not to try cases. They are hard, they are no fun and virtually no one wants one because plea bargains are a known quantity. The guilty defendants don't want a trial because the pre-trial plea gift is gone. The lawyers don't want them either because that is too much work and career advancement is not conditioned on serious trial expertise (not here at least). The institution doesn't want more trial because then the numbers look bad and dockets get clogged.

Trials are scarce for those reasons and because they take longer than they ever used to and they are more choreographed than ever before. More motions, more prep time, more fighting over non-issues, more everything. However, it is true that minimum mandatories have assisted, but broad judicial discretion in sentencing can do the same. See below.

The defense lawyers who complain about a trial penalty don't want more trials either. They just want the few that do go to trial where they have a shot at NG or a hang, to get the same sentence as those who bargain away their valuable trial right. Then that same attorney will say for the next client, "judge, my client wants to plead guilty, what are you going to do for him?" Judges have to move cases, just ask them and they will say so - "we can't try them all." What currency do the judges (and the lawyers) use to get defendants to plead? Sentencing and/or charging discounts.

By the way, I am not criticizing these defense attorneys who make the request, this is what defense counsel does - get the best outcome for each client and use the incentives built into the system to do so. Systemic integrity is not their problem. It should be, but the rules are not set up that way.

You want more trials, stop offering heavy discounts to plead. Of course, when the DA of Riverside did that in 2006 the courts pushed back, and hard.

Posted by: David | Aug 10, 2016 9:03:32 PM

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