12 April 2005

Jury "Threat"

Spoons commented below:
I've never understood why so many defense attorneys view taking a case to trial as a "threat" against the prosecution. As a prosecutor, I love jury trials. It's why I took this gig in the first place.
Yes. I think the jury trial are usually the part of the job which fires up people on both sides of the aisle. But they come do come with a price and I think that's what the "threat" is about.

I think the "threat" most often thought of is that it clogs the docket (which the prosecutor and the judge have responsibility for, not the defendant) and is a lot of work and time for a prosecutor who has more serious cases to handle and really doesn't want to spend the time needed to prep a jury trial on an uttering case (or larceny or simple possession or any of a litany of minor felonies). This is a more realistic threat in areas where there are greater crime rates and more serious crimes. It doesn't work in places where there 100 or so felonies in an entire year.

In more serious crimes the "threat" probably goes more like this:
(1) Your boss is an elected official. I'm not.

(2) You're supposed to win in the courtroom. I'm not.

(3) If you lose it's potentially newsworthy. If I lose nothing more happens then was expected.

(4) If your office persists in refusing to make rational deals and loses a number of times it definitely becomes newsworthy.

(5) With 3 & 4 in mind I point you back to #1.
Of course, most people have enough sense not to say any of this out loud because it is the surest way to make sure the prosecutor won't deal. However, it's always in the background, an unstated part of the conversation.


Tom McKenna said...

Points 1 through 5 may obtain in some prosecutors' offices, but all the ones I've worked in or am familiar with do not operate in a way that would make these points have any traction.

My boss does not care if I lose a jury trial, unless it was lost because of preventable, obvious screwups on my part. If any defendant wants a jury, it's fine with me, and if I lose, it's not a reflection on our office unless we made obvious mistakes.

Sure, we're "supposed to" win according to some, but as I never tire of pointing out, a prosecutor's sole duty is to do justice; if we lose 2 or 3 or 5% of our jury trials, we are discharging our duty and have nothing to apologize for.

Ditto for news coverage. I'm sure some elected prosecutors are unduly sensitive to this, but fortunately not mine, nor any I'm personally familiar with. The press simply needs to be educated, i.e., "Mr. so and so had a fair trial where all the issues were considered by an impartial jury, which chose to acquit him. While we may not agree with the decision, we respect the jury system and appreciate their service" or some such claptrap.

The public is becoming sophisticated enough to appreciate that our function is not simply to win every single case.

So I would have to say that the points you identify have next to no bearing on my decisions in plea negotiating. Sure, if my case is a dog, I'll try to resolve it to avoid losing altogether while at the same time reducing the defendant's exposure. That's why we plea bargain. But if someone wants to stand on his "rights," so be it, let's rock and roll and let the chips fall where they may.

I don't indict a case I wouldn't feel comfortable trying to a jury.

Windypundit said...

When seat belts (and later airbags) became available in cars, some economists predicted that drivers would respond to these safety features by driving more recklessly because the cost of recklessness was reduced. Many people dismissed these predictions with claims that people wouldn't make safety decisions that way. Subsequent statistics proved the economists were right: As the injury rate decreased, the number of accidents increased. People respond to incentives.

Just sayin'.

Anonymous said...

Speaking as someone who has worked both sides of the aisles, I am currently a prosecutor with a drug task force, I have always subscribed to the theory that most times a defense attorney has lost when the trial starts.

Barring a really weak case, juries are just inclined to convict.

Besides, I just have to say OJ and everyone starts muttering about juries ignoring the evidence.

Ken Lammers said...

To begin, two comments:

(1) Tom is the prosecutor against whom I've tried the most juries (not the majority but the greater number).

(2) I never said the threats were overly effective. I just said they were always there in the background.

In fact, if I hadn't been answering a question about threats I would probably have stated them as factors considered by a prosecutor before going through with a jury trial.

The amount of weight given to each factor will vary from jurisdiction to jurisdiction. If the jurisdiction is swamped with serious crime the first factor (docket control and concentration on more serious cases) becomes more important. If the jurisdiction is rural and tends to only have 25 cases a month you can forget it; they'll schedule a week long trial for you if you want it.

The second factor (election issues) matters more the more contested an elected position is and how close the election is in time. If the same Republican prosecutor has been elected in the last 4 elections and he's in the second year of a 6 year term it really doesn't have a lot of weight. But if the prosecutor's a Democrat in a county dominated by Republicans and your jury trial is set to start 3 weeks before his very close election against a Republican challenger the math is going to change. After every election there are mutters around the courthouses about how Commonwealth Attorney Smith lost his position to challenger Jones. The almost universal reason? Losing, or getting too low a conviction, in a high profile case (or cases). This seems particularly true in more rural counties where there ain't but so many people and they have looooong memories.

And I say AGAIN, anyone who actually walks into a prosecutor's office and argues these things is going to go to trial. If you say it out loud the prosecutor doesn't really have a choice - he's got to back you down.

None of this calculus will ever be admitted by a smart prosecutor but it's out there. Assume a busy prosecutor's office sets a policy that the only offer for a guilty plea on grand larceny was 3 years in prison and suddenly the next month 30 defendants decide to go to a jury trail and swamp the days set aside that month for criminal cases (much less jury trials). You think that policy isn't going to change? Further, assume that (while the local crime beat reporter watches and reports it all) the first 15 trials have 2 convictions, 4 convictions of a lesser charge, and 9 not guilty findings. That policy is going to change.

(Yeah, I realize the examples are skewed. They were meant to make a point, not represent reality.)

Ken Lammers said...


Sure, juries are inclined to convict. The question is whether they are more inclined to convict than the judge.

Sadly, you are right that often a defense attorney has lost when the trial starts. That's what I was refering to when I spoke of slow guilty pleas in Monday's post.

Anonymous said...

Interesting perspective. I think it's telling, though, that your explanation of the threat presumes that the case is going to trial because the prosecutor refuses to make a reasonable deal. That's not a criticism, just noting the perspective you're coming from. I'm sure that that does reflect reality in some cases, such as where the prosecutor's just a jerk, or where he is misjudging the strength of his case.

On the other hand, from the prosecutor's point of view, it may appear to him that the Defendant is guilty of the offense or offenses charged, and that the case is easily winnable. Yes, it is time consuming, but if a defense attorney starts expecting too much of a reduction in the level of offense or the penalty, then prosecutors make rational decisions to try the cases.

I guess the jury "threat" depends on which side is being unreasonable in the plea negotiations -- and that's almost always going to be a matter of perspective.

Ken Lammers said...


Yep, a lot - if not the majority - of cases are taken to trial because someone on the defense side is being unreasonable. Believe me, I've had the following conversation more times than I care to remember:

Client: I'll plea if it's all supended time.

Me: You have four prior felonies and one's a B&E. There's no way the prosecutor's going to agree to suspended time.

Client: That B&E was at a Wendy's at 3 a.m. when no one was there and all I took was some bread 'cuz I was on the street and hungry.

Me: It's on your record and guarantees at least a year in jail.

Client: A YEAR IN JAIL !?! I been in trouble before and always got a plea. No way I'm doing a year in jail!

Me: You're charged with forging a check, uttering a check, and felony petit larceny. You are not getting a plea that doesn't involve jail time.

Client: All my other charges were pled down.

Me: That was in jurisdiction X. This is jurisdiction Y. Things don't go that way here. I can probably get two of these charges dropped but the one you plead on is going to carry time.

Client: Phsssst! If you can't make these little charges go away I want a jury.

Me: You want to think about that. You're in jurisdiction Y. Jurors here are conservative. They ain't likely to let you walk after the clerk ID's you and they play that video tape; if they convict they're going to sentence harder than the judge.

Client: I want a jury trial! If I had a real lawyer he'd make these little charges go away . . .

And on and on and on. Ask any defense attorney; we've all sat through this conversation.

Anonymous said...

LOL Ken.

I can't tell you how many times I've been in a conversation like that. Use to drive me crazy when a defendant acted thay way back when I was a public defender (In what was definitely jurisdiction Y). More often than not, the client would go ahead and get wacked by a jury and then decide to get serious about plea bargaining.

Interestingly enough, those of us on the prosecution side of the aisle have a similar problem with police officers sometimes. They want harsh sentences that just don't match the crime committed.

Prosecutor: Okay, she sold a half a tablet of Oxycontin. She had no criminal record and is sixty years old with medical problems. I'm thinking the minimum of five years is a good plea offer.

Police Officer: Hell no! Anything less than seven I say go to trial. After all I'm the one who worked the case and I make the decisions as to what happens with the case.

Prosecutor:- Well I can't really type the response I would give to that little bit of theater since Ladies and children might read this, but you get the idea.

Anonymous said...

Another thing popped into my head.

One thing we use to have in my neck of the woods is part-time prosecutors. They work for the state, but also have their own practice.

When I was PD it wasn't uncommon to point to the prosecutor that trying the case we were talking about was time away from making money in his private practice.

Over the past few years, there has been a real drive to get full-time prosecutors in every jurisdiction. Nowadays they take the position 'I get paid the same amount whether I try this case or not. So I have no fear of losing money if I Try this case.'

Of course for now, the dockets in Southeast Kentucky are of the size where trying cases on a regular basis isn't a problem. So the prosecutor can try the fellow who was fencing stolen cars without worrying about a rapist going unprosecuted.