Tuesday, November 18, 2014

The Captain's Table: The 6th Amendment

Vero Beach, FL

[Although this blog is primarily about our cruising lives, we are not one dimensional beings.  We have other interests.  For example, I’m a big physics buff.  I’m also interested in social issues.  This blog post is about one of them.]

The issue is the decline in jury trials in the USA at the federal level to the point where our 6th Amendment right to trial by jury in  has been made moot.  Americans are said to love their constitutional  rights and to defend them jealously, but in this case, almost everybody seems to have not noticed and not cared.  That’s remarkable.

I came upon this issue, not via an article or a documentary film, but by my own independent research.  It happened two years ago when we were wintering in New Bern, NC.   There was a Federal courthouse nearby and I thought that it would be fun to witness a federal jury trial.  I checked the court calendar.  Nope, no jury trials.  In fact, nearly 700 cases were handled in the New Bern district every year, resulting in about two bench trials per year and no jury trials.  Amazed, I checked the other federal districts in NC.  The story was nearly the same in all the federal districts in NC.   WTF I thought; Hollywood shows are rife with jury trials, can it be true that they almost don't exist in real life?

A bit of Googling brought me to a speech by a federal district court judge. [Sorry, I can’t find the link today.]  He protested that the 6th amendment was being trashed by the practice of plea bargaining.   

More Googling brought me to the celebrated case of Aaron Schwartz.  Mr. Shwartz was an Internet activist much beloved by the Internet community.  He violated the terms of service of a web site.  Horrors!   Most of us would not consider that a crime at all.  I myself violate Facebook’s terms by not using my real name.   But the Feds charged with 11 felony violations of the Computer Fraud and Abuse Act plus other things that added up to a maxiumum of 35 years in jail.  Faced with such an overwhelming assault by our government, Aaron Schwartz committed suicide.

Plea bargaining sounds kind of innocuous.  At what point does it become so abusive that one can say that it negates The 6th Amendment?  In my definition, it does so when an innocent man acting reasonably would find it rational to plead guilty to a crime he/she did not commit.

Consider the plight of the accused.  On one hand, law enforcement and his own lawyers stress the uncertainty of rolling the dice for a jury verdict; regardless of actual guilt or innocence.   On the other hand consider the disparity between the penalties offered for a guilty plea (say 6 months probation) as opposed penalties for pleading not guilty (say 35 years in jail).  Then throw in the cost of defense.  A good federal defense lawyer may charge you $25,000 to $50,000 per charge. Therefore, even if you get an innocent verdict you will be bankrupted.  If you have a family, they will be rendered destitute. Therefore, when prosecutors take a simple offense and then heap on 11 additional charges (such as lying to a federal investigator), they increase the legal costs of conducting a trial defense by 12:1.

Federal prosecutors do indeed overreach systematically.  Consider the Supreme Court Case of Bond v. United States.  The defendant put caustic chemicals on doorknobs of her rivals.  The prosecutors charged her with the terrorist crime of chemical warfare.   In oral arguments, the justices called the government’s decision to bring that charge “stupid.”  In a more recent case, Yates v. United States, the solicitor general revealed that DOJ guidelines require that when several laws apply, to choose the one with the most severe penalty because that gives them more plea bargaining leverage.  The justices also thought that policy was extreme and abusive but they had no power to overturn it.

Consider further that federal prosecutors almost never are held accountable for overreaching.  They can charge you with 12 crimes for plea bargaining purposes, but if it does come to trial they can drop 11 of the 12 charges that they couldn't prove anyhow.   They will never be punished for proprietorial misconduct for doing that.

Still more research showed up a scholarly paper; The Unnecessary Evil Of Plea  Bargaining: An  Unconstitutional Conditions Problem And A Not-So-Least Restrictive Alternative, by Tina Wan. Ms. Wan generally agrees with me, but she goes much deeper in investigating the history and the treatment of this problem by the courts.  To paraphrase: courts have been very reluctant to recognize this problem with plea bargaining, because the justice system would be crushed if a substantial number of the accused demanded jury trials.   In other words, for the sake of efficiency in the justice system, we sacrifice the 6th amendment.

Ms. Wan also offers a remedy.  She would allow defendants to waive the right to a jury trial in favor of a bench trial.  Bench trials consume much less time and money, but they do preserve the right of the accused to argue their side of the story and they do require the government to prove its case.  The balance of power and the obligations to tell the truth in a bench trail are very different than those in a plea bargain negotiation.

I have my own favored remedies.  First, I would make a rule that when the same set of circumstances may violate several laws, that the prosecutor must choose one of those laws and not heap on with simultaneous charges of all the violations.   I would also merge the public prosecutor and public defender offices.  One staff, one budget, one set of attorneys would do both prosecution and defense with each attorney being assigned a prosecution or defense role by random chance.  Then we measure their success by the number of times they win, not the number of convictions.

The same problems may also apply at the state and municipal levels.  I only looked at the federal level.

Most of all, I am amazed that the mass media and the American public ignore this gross violation of our civil rights that fosters an overbearing and tyrannical government.

Update:  Ms. Wan's suggestion is perhaps more practical than mine.  Here is a short excerpt from her paper giving her own words.

As this Note has shown, plea bargaining presents an unconstitutional
conditions problem and places an impermissible burden on several fundamental
constitutional liberties. Although the government has advanced a
compelling state interest—the continued function and efficiency of the
criminal justice system—plea bargaining is not a means narrowly tailored
to serve that interest and is not the least restrictive alternative. But a jury
waiver system is. While such a system still necessarily entrenches on the
right to a jury trial, it is a less intrusive way of preserving the function and
the efficiency of the legal system. A jury waiver system further conforms
more closely to due process and provides the defendant with an opportunity
to be heard. Therefore, since plea bargaining is not the least restrictive alternative,
it is an unnecessary evil and should be banned and held unconstitutional.

Studies conducted in jurisdictions where bench trials have been a predominant
form of convictions demonstrate that a replacement of plea bargaining
with a jury waiver system is a feasible solution. Contrary to
popular belief, an abolition of plea bargaining would not cause the legal
system to collapse or cease to function, nor would it cause a substantial impairment
to the system. 


  1. I like your idea about merging prosecutor and defender's offices. Excellent! Make them work both sides of the fence and make competence a meaningful measure. What a concept!

  2. The military uses commissioned officers a counsel for the prosecution and for the defense. For the lesser charges under the Uniform Code of Military Justice, a second lieutenant could, for example, be a prosecutor or a defense counsel. I was both during my three years in the Army and I confess I was a miserable failure at both. So I'm not suggesting that commissioned officers replace lawyers, only that your idea, Dick, is already in practice in the military, and it seems to be fair.


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