The vanishing jury trial

This wasn't supposed to happen here

[Reprinted from Issues & Views April 22, 2002]

Given the way human nature operates, it's probably not surprising that American society swung from the extreme of coddling criminals and making every excuse under the sun for anti-social behavior, to the present extreme of presumption of guilt.

From about the mid-1960s into the 1980s, a lenient judicial system repeatedly turned loose onto the streets all kinds of perpetrators--from the relatively benign types to the violently heinous. Crime soared and became a part of our every day lives, citizens felt under siege, and sometimes it seemed that people were dropping like flies at the hands of the muggers.

Fast-forward to the year 2002. During the interim, courtroom power has shifted away from the glib, clever defense attorney to the iron fist rule of the prosecutor. In fact, in the case of federal crime, there rarely are any courtroom scenes, since almost 95% of cases end with the defendant being coerced by the state (some say psychologically tortured by the state) to "plea bargain."

The fierce determination by states and the federal government, to prove that the wars on drugs and crime are being won, is systematically producing an arbitrary form of justice never dreamed of by the Constitution's framers.

Legal nets are set to ensnare even those with no intent to commit crimes. There are cases where people who sent money to relatives abroad or maintained some small amount of assets in a "tax haven" have been prosecuted for "money laundering." More and more cases are surfacing that show law enforcement agents failing to differentiate between inadvertent violations and the activities of criminals.

Craig Horowitz describes the vanishing jury trial in "The Defense Rests -- Permanently," (New York magazine, 3/4/02), and claims that our criminal justice system no longer works to serve the truth. He concedes that no rational person would want a return to the permissiveness and lack of accountability of two decades ago, but that the current "overwhelming power of the criminal-justice system has raised a compelling question: Has the presumption of innocence and the constitutional guarantee of a trial by a jury of one's peers been compromised by measures designed to speed the accused through a system with fewer opportunities to escape?"

Horowitz describes the final verdict in the Sean "Puffy" Combs trial, where Combs, the defendant, was found not guilty on charges stemming from a shooting in a night club. He writes that such a victory is now a rare occurrence.

But even as Brafman [Combs' defense attorney] was soaking up the accolades for his courtroom performance, he knew something most of the public didn't: Not only are come-from-behind defense victories becoming more and more difficult to achieve, but simply going to trial has become almost prohibitively risky. One of the reasons Brafman was so overcome with emotion when the Combs acquittal came down was that it was so rare--so rare that many of the best criminal lawyers in town are ready to quit.

According to Brafman and dozens of other defense attorneys I talked to, the criminal-justice system has undergone a profound transformation. In fact, Brafman's big win was an anomaly, and the era of the superstar defense attorney, part gladiator and part performance artist, may be coming to an end. . . .

Changes in the legal system have given prosecutors the power to exact extraordinary penalties from defendants who choose to go to trial and lose. The deck is so stacked against defendants who plead innocent, they say, that the average defendant doesn't have the luxury of taking his case before a jury. Why fight, when the chances of victory are small and the penalty for losing is huge? Everyone is looking for a deal.

Horowitz interviewed attorney Joel Rudin, who told him, "All the skills I had developed as a litigator can no longer be put to use as a criminal attorney. The primary skill needed for doing criminal work is as a negotiator to deal with the prosecutors. But since you're not on even ground with them, you're not so much negotiating as pleading. The system has totally perverted the values a lot of us grew up with." And defense attorney Richard Levitt told Horowitz, "The prosecution wins probably 98 percent of the time."

Horowitz observes, "No one feels sorry for the lawyers, of course. But is something valuable--like, say, the presumption of innocence--in danger of being lost?"

To learn the details of how and why things got this way, read The Tyranny of Good Intentions: How Prosecutors and Bureaucrats Are Trampling the Constitution In the Name of Justice, by Paul Craig Roberts and Lawrence Stratton. Available here on the Issues & Views Catalog page.

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