White-Collar Crime

Judge Rakoff, Jury Trials, and Government Tyranny

The days of the Brandeis brief -- packed with data from the social sciences and policy arguments -- are long gone.

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Judge Rakoff has another piece in the New York Review of Books. And, as with his prior writings, it’s worth a serious read.

The piece is called “Why Innocent People Plead Guilty.” It’s a great history of the guilty plea and the demise of the jury trial in the American criminal justice system.

To cut to the chase, innocent people plead guilty because there is evidence of their guilt and they are terrified of the massive power that prosecutors wield. If you’re innocent, and you’ve got a shot at an acquittal, but not a certainty of one, and the delta between your sentence after a trial loss and after a guilty plea is, say, 10 years, you’re going to be strongly inclined to think seriously about a plea.

If not everyone pleads, then we won’t be able to process all the people we need to in order to make the system work. Just about every criminal defense lawyer I know has, at some point, had the thought that we’ll all band together and refuse to plead and clog the system. Because the hammer the government has is too big. We’ve never tried to sell our clients on it. As a result, we have less a court system than an administrative one.

None of that is news — at least not to regular readers of this column. That it may be news to the readers of the New York Review of Books is a fascinating bit of sociology. Academics have written about this, perhaps most recently Greg Gilchrist in “Trial Bargaining.”

So these observations are not, for me, the most interesting part of the piece. The most interesting part is how far we’ve come from what jury trials were supposed to be.

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Rather, what I found most interesting about Rakoff’s piece is his discussion of the point of jury trials back at the time of the founding of the country. It’s something most of us learned but, in the crush of practice, forgot.

Here’s Rakoff:

To the Founding Fathers, the critical element in the system was the jury trial, which served not only as a truth-seeking mechanism and a means of achieving fairness, but also as a shield against tyranny. As Thomas Jefferson famously said, “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

It’s hard to think we’re doing anything like that in today’s jury trials.

These days, if there’s an issue in a trial about how the government is overreaching, the very first thing you’ll get is a motion in limine from the government saying the jury shouldn’t be able to hear anything about it.

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Say, for example, you’re representing, as I did recently, a doctor in an FDA mislabeling case and you want to try to introduce evidence that the government notified some doctors of the labeling issue at the heart of the case, but not the doctor they’re prosecuting, because they didn’t want to mess up a potential prosecution.

If your interest is in shielding against tyranny, you’d think the jury ought to hear that. The government’s conduct is, of course, the tyranny you’re protecting the citizenry from.

But in the modern federal criminal justice system, these issues simply aren’t relevant to the straight up question of whether the person who has been accused did the things that meet the statutory elements of a crime.

Part of this is a concern about jury nullification. If the jurors think that the government met its burden, but that it was tyrannical in doing so, the founders of the country would, presumably, say that a jury should be free to acquit.

Most federal judges these days? Not so much.

In some ways, it’s a cousin of what you see in the law more generally. We’ve become more rule-bound and less interested in the equities. The days of the Brandeis brief — packed with data from the social sciences and policy arguments — are long gone. Instead, the Court, and most lawyers (at least T1 lawyers) focus on the black letter of the law. Policy is left to Congress. Equities are less relevant.

There are upsides to this. There are massive downsides to this.

And one downside is that instead of having the criminal justice system that the founders contemplated, we have an administrative system, moving people from indictment to prison with nary a thought of the government’s actions that drive the process.

Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is mkaiser@kaiserlegrand.com He’d love to hear from you if you’re inclined to say something nice.

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