By Criminal Defense Lawyer Jeremy Rosenthal
Whether we like it or not the Coronavirus pandemic has been a transformational event – and its impact on the Courts and criminal law practice is no exception. Some of it will be temporary and some of the transformation will be here to stay.
Big Picture View of the Criminal Court System
Think of our court system as a pipeline with water going through it. Cases go in on one end, and are channelled in certain directions to be resolved either by plea, dismissal or trial. One of the Courts’ central roles is to simply move the cases through the system.
Certainly, the Courts have vital roles in the outcome – but as I explain to clients frequently – the Courtroom has two tables, one Judge and one witness stand. They can’t weigh in on all 2,500 cases they’re assigned at one time.
The Role of the Jury Trial in the Process
Trial would be like the end of the water line which would typically spit the unused water out and be done with it. It is the mechanism which closes cases the parties can’t resolve on their own.
But another crucial aspect of a Jury trial is this — parties typically also want to avoid them. They’re uncertain. They can be expensive for someone charged with a crime. They can inflict real pain on a person standing trial or a witness in the trial. Prosecutors won’t admit this – but they get paid the same whether they’re sitting at their desk or trying a case and many of them don’t want to put in the effort of a trial. So trials also serve the critical function of pressuring criminal defendant and the prosecutor to come to some sort of agreement short of a trial.
Also there are some cases which simply have to be tried in the criminal world. Take a Continuous Sexual Abuse of a child case where the Defendant serves 25-years to life with no parole if convicted. If the Defendant is over 50 years old – there is simply very little reason for them to plead guilty in any event.
Pandemics and Jury Trials Don’t Mix
We can’t have typical jury trials in a pandemic. It’s not safe and there is really no substitute. Jury trials via zoom or other platform almost certainly violate rights to face your accusers in open court. The jury system was also predicated on an assumption the jury can get to the truth by watching witnesses in person.
The System is Temporarily Out of Service
Not only is the mechanism we use to resolve cases not working during the pandemic — more importantly parties aren’t feeling pressured to resolve cases.
Prosecutors are currently making plea offers based on what they think a fair outcome would be for a case based on what they’ve seen as fair results in the past. But they ignore the Defense has very little incentive — in many circumstances — in pleading guilty.
A Defendant on bond (and the vast majority are) doesn’t have to worry about upsetting a probation officer and going back to jail on a misdemeanor case. On a felony case where the State thinks 8 years of prison is a fair offer — a defendant on bond is rarely going to sign up for that where the alternative is living a relatively normal life for another year.
Prosecutors and criminal defendants aren’t on the same wavelength with regards to resolving cases and the reason is the pressure-mechanism isn’t working.
Why Don’t Judges Just Try to do Jury Trials Anyway?
Judges could try to force the issue – but they fear making the matter worse by utilizing resources to try a case via Zoom only to have the Court of Appeals making them re-do the trial when the pandemic is over.
The system will get back to normal once cases begin going back to jury trials. When that will be is another issues. But when jury trials do begin to crank up again — just like a water-pipeline with built-up pressure — you can expect excess pressure there too.
*Jeremy Rosenthal is Board Certified by the Texas Board of Legal Specialization in Criminal Law. He is Currently Recognized as a Texas Super Lawyer by Thomson Reuters.