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Let's Make a Deal

Hollywood loves to resurrect old franchises - next year we will be treated to Fast & Furious 8, causing some of us to wonder if there is indeed a loving God - but if they brought back Perry Mason, it's unlikely that there'd be many court scenes.  Weekly episodes would instead feature him hammering out a plea bargain with the prosecutor.  

I give an annual presentation at the death penalty seminar for the OACDL, the state criminal bar association.  A few years back, I asked how many in the audience had tried ten or more cases that year.  There were about 300 people in the room, some of the top criminal lawyers in Ohio.  A smattering of hands went up.  Even when the threshold was reduced to five, no more than a third of the lawyers raised their hands.

But the true extent of the decline is perhaps best demonstrated by the lead paragraph in this article (h/t to Sentencing Law & Policy):

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.

The article focuses on Federal cases, but the same holds true in Ohio courts.  In 1999, the common pleas courts handled 83,230 criminal cases, with 1,680 going to a jury trial.  By 2014, the number of criminal cases had increased by 25%, but the number of trials had decreased by 35%.  Put another way, the number of criminal cases resolved by trial declined by 50%.

One can make a compelling argument that the Draconian sentences Federal defendants face, especially in drug cases, forces a plea bargain, but it's hard to make that argument for Ohio cases; our sentencing law has been essentially the same since 1996, and has, if anything, become more lenient since the passage of HB 86 in 2011.  And it's not like the courts have become so overloaded that plea bargains are even more essential to keeping the system from collapsing.  The number of felony cases in Ohio has actually declined by 20% in the past eight years.

Frankly, I think it's just that nobody wants to try cases any more.  The prosecutors in this county are graded on how many cases they win, so there's an incentive to avoid trying iffy cases.  Judges don't want to try cases, because it messes up their dockets.  Most defense lawyers are sole practitioners, and spending a week in trial can wreak havoc with their practices.  And everybody knows that the vast majority of cases plead out, so the natural inclination is to work out a deal, especially if it means avoiding a prison sentence.  

And the sentencing aspect does come into play, via the "trial tax."  While some judges won't penalize you for going to trial, some will.  Informing your client that if he pleads, he's likely to get two years in prison, but if he goes to trial and loses, he's looking at double-digit time, is a pretty convincing sales point.

Unfortunately, some cases just need to be tried, and one of the consequences of the dwindling number of trials is that lawyers don't get the experience of trying them.  The Ohio Public Defender just announced its new guidelines for assigned counsel.  While some new qualifications have been added -- to get on the assigned counsel list, an attorney has to have taken 12 hours of CLE on criminal law in the past two years -- the trial experience qualifications have been substantially diluted.  To get on the list to handle first or second degree felonies, a lawyer must have had, within the past ten years,

prior experience as lead counsel in two criminal jury trials, at least one of which involved felony charges, or as lead counsel in one felony jury trial and as co-counsel in two additional jury trials.

So you could wind up with a lawyer trying a rape or aggravated robbery case whose experience consisted of trying a crack pipe case and an OVI seven years ago.

I was on the committee which came up with the new guidelines, and I argued for more stringent standards for trial experience, but only half-heartedly.  Even here in Cuyahoga County, it's difficult for lawyers to get the experience necessary to move up on the assigned counsel list.  It took a friend of mine four years just to acquire the number of trials needed to get on the 1st and 2nd degree felony list.

I don't know what the answer is.  It's going to be very hard to overcome the inertial pressure to resolve cases through pleas.  The concern I have is that when it comes time to actually try a case, many criminal lawyers won't have the benefit of experience that only trying cases can give.


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