16 May 2006

Useful Idiots

Usefuls idiots. They're everywhere. Every time one side faces overwhelming evidence there's always some person who ought to be in the opposition who isn't. This makes him "useful" as someone that side can point to as the reason that the overwhelming evidence isn't really.

This doesn't mean that the individual is wrong. His particular circumstances may be such that for him the contrarian position is correct. However, the position is harmful to a greater number of people and he does not see that either through willfull ignorance or the inability to comprehend. Thus the appellation "idiot."

Mind you, we've all probably been in a position where we could have been a useful idiot. However, most of us don't have it recorded. I recently ran across one who was.

I was reading King & Noble's article on jury sentencing in Kentucky, Arkansas, and Virginia. Of course, I was concentrating on the parts about Virginia. As anyone who has read this blog for a while knows, I consider the system as it operates in Virginia to place a jury out of bounds for the vast majority of cases because of jury sentencing; in fact it is probably per se malpractice to recommend a jury in 90% of felony cases in Virginia. While the authors bend over backwards trying to be even-handed and make the case in favor of the system the numerous quotes from prosecutors make it clear that in Virginia a jury is much more often a sword in the hands of the prosecutor instead of the shield it is supposed to be for the the citizenry. And then they find someone from the .0000001% of the defense bar who thinks that jury sentencing actually works:
Even in Virginia, one defender reported that juries impose sentences that are more lenient than the guidelines recommendations in some cases.205

"I love jury sentencing because I find it is easier to work with, and I can have more impact on the jury. The jury is more honest, and less influenced than judges, when they are properly prepared. I trust the jury. The guidelines were written the way they were to discourage jury trials. . . . I always demand a jury. Not all defense attorneys would agree with me. They don’t go to trial as much as I do. Q: Why not? A: Because they’re punks. They don’t have enough confidence. . . . I still run across some prosecutors who will say, 'If you don’t take this deal, I'll take this to the jury.' And I give them my standard response, 'Oooh, I’ll have to sleep with my night light on I'm so scared.' I love the jury. I’m not intimidated by it. So many defense attorneys do not do an adequate voir dire; some, to this day, never even ask one question. Not one question. That’s so incredibly stupid. Lazy people don’t go to jury trial.".
Okay, I see four possible reasons to make that claim.

1) Bravado: If you claim this constantly and loudly perhaps the prosecutors will know you are a pain in the rear when they see that you are on the case and offer a little better deal just to get rid of you.

2) The Ability to Pick Clients: If you only do retained cases and you loudly proclaim this you will get people who come to you already dedicated to taking a jury. Fees are therefore larger and you are percieved as someone who will "fight for" his client. You can reject clients who really shouldn't be tasking a jury trial either directly or by overpricing them.

3) Only Handles Very Serious Cases: Imagine a 45 year old defendant charged with murder; he has the option of 35 years under the guidelines, 22 years per the prosecution offer, and a life sentence if found guilty by a jury. Why wouldn't you take that to a jury? All three are basically life sentences. If this is the type of case you face day after day you should be taking juries.

4) Ineptitude: Probably justifies himself with the 10% of clients who have gotten better results than the judge would have given them but forgets about the 50% who are serving years more than they would have without a jury trial.

Look, I think jury trials are a necessity of a just system. It's the reason I am so disturbed by the system as it exists in Virginia. About the only cases wherein I push my clients toward a jury are Virginia Exile cases, because I know they're going to get the mandatory time whether the trial is by a judge or jury, or cases where the punishment by statute is so huge that it's doubtful that jury sentencing will make much of a difference. In others I explain the pros and cons and then let them make the decision. If they cannot make up their mind I schedule a bench trial because they can always assert their right to a jury trial later but once the jury trial is set they aren't going to get out of it unless they plead guilty. Once jury sentencing is explained to them the vast majority do a risk-benefit analysis and realize that the potential sentence by a jury is too great a burden to take a jury.

The overwhelming reality of jury sentencing in Virginia is that it denies most people a realistic opportunity at a jury trial. An individual attorney might be able to put himself within a bubble so that he only schedules jury trials but the majority of us must live outside that bubble. In a fairly typical case Client is charged with distribution (5-40 years): the jury must sentence him to no less than 5 years, the judge doesn't have to give him any active time, and the judge's guidlines call for 7 months incarceration. In a more serious case Client is charged with aggravated malicious wounding (20 years - life): the jury must sentence him to no less than 20 years, the judge doesn't have to give him any active time, and the judge's guidelines call for 7 years in prison. BTW, jurors are forbidden the knowledge of what kind of punishment they will be forced to impose if they convict. Why? Because "beyond a reasonable doubt" could become a much higher burden if the jurors knew they would be required to send someone to prison for 5 years. Assuming the case is close (why else take a jury?), a jury trial carries a disproportional risk. It is definitely not the protection it was meant to be.

I'm sure someone will write to tell me how wonderful jury sentencing is. In Virginia this usually takes the form of a statement that jury sentencing is a tradition woven into the fabric of our system expressing the will of the people.

Poppycock. Rubbish. Malarkey. Bunk.

Jury sentencing as it is currently set up in Virginia is a historical abberation. Traditional sentencing was done without the jury being told of the defendant's history. The prosecution didn't get the advantage of introducing the defendant's 16 page criminal record. Traditionally a jury decided its sentence purely on the basis of the act itself. Additionally, prior to the current system the jury's sentence was strongly mitigated by parole. This no longer exists except as it is reflected in the sentencing guidelines - which the jury is forbidden. The only way to get that parole time back is by judge sentencing, which means a bench trial. Judges, in theory, can reduce the jury sentence to the appropriate level; they don't. Going back to the old system would be painful (I know I don't want to mess with figuring out potential sentences considering parole), but if we want to be historical we must. Or we could just go for a system that works and opt for judicial sentencing. Figure the odds . . .


Anonymous said...

Doesn't the prosecutor have to agree to a bench trial in Virginia? I previously lived in a jurisdiction where the prosecutor ran on the election promise of no bench trials and followed through on it once elected. After a few defendants got hammered by juries, everyone fell in line and practically had to accept whatever plea offer was given.

Ken Lammers said...

In Virginia the judge and prosecutor have to waive the jury. This is why they can threaten a defendant with a jury. Consider a possession with intent charge with a minimum 5 active years that must be imposed by a jury - the judge doesn't have to impose any active time and usually has guidelines somewhere around a year. Prosecutors can use this as a sword in order to get a guilty plea. I've even seen one judge establish a policy that he will require a jury if anyone pleads not guilty to this type of charge.

However, there aren't many jursdictions where a prosecutor could take every felony to a jury trial. There just aren't enough hours in the docket and he's always taking the risk that he'll get a couple juries filled with libertarians and liberals who will kick a case them and put a little egg on his face.