Tuesday, February 04, 2020

No R-E-S-P-E-C-T: Jury trials not only place for Texas criminal-defense lawyers to shed Rodney-Dangerfield image

"Want to earn a prosecutor's respect?," asked the Texas Criminal Defense Lawyers Association on Twitter. "Beat them in a jury trial."

So how much respect are Texas criminal-defense lawyers earning?

From the 2019 annual statistical report of the Texas Office of Court Administration, here are a few data points on trials I wanted to record for my own purposes. Maybe some Grits readers will also find them interesting.

Overall, reports the OCA, attorneys in Texas are taking about 5% of felony cases to trial. That's more than I would have expected, and as I'll discuss below, may be overstated.

Felony cases go to trial more often than misdemeanor cases, but acquittals in felony cases are rare:

Not as rare as in misdemeanor cases, though.

To be sure, many more cases receive dismissals than acquittals. Indeed, more misdemeanor cases are dismissed across the state than end up with a formal conviction. But apparently, securing dismissals doesn't earn prosecutors' "respect."

As an aside, what does it say about the quality of misdemeanor arrests being made if 43% of the cases are being dismissed?

Notably, when misdemeanor cases do go to trial, several categories of offenses have high acquittal rates:

But it just doesn't happen that often. Juries were selected in only 4,107 criminal cases in Texas during FY 2019: 2,701 in felony cases and 1,406 in misdemeanor cases. That's out of nearly 600,000 total criminal-case dispositions last year. (This is why I question the graphic above that said 2% of felony cases went before a jury; the juries-picked data in the same report comes in at 1.2% of felony cases.)

Regardless, for years I've heard complaints from thoughtful criminal-defense lawyers that TCDLA training and programming too overwhelmingly focuses on trial preparation and execution, even though that's a rather small part of what most criminal-defense lawyers do with their days. This Twitter tip seems indicative of that same attitude.

Grits would suggest to criminal-defense attorneys their higher priority isn't to seek "respect" from prosecutors so much as the best result for their client. Feeling personally disrespected is seldom a good reason to alter one's strategy when dealing with the government, and that goes double for attorneys in criminal court. It's just not about you!

Defendants receiving dismissals are better off than those who must go through a trial to get an acquittal. For my money, their lawyers deserve "respect," too," but apparently they must look for it somewhere besides their professional association.


Anonymous said...

Not to overstate things, but I think their point was indeed that "respect" helps in future cases -- a jury trial acquittal will give your next several clients a leg up in plea negotiations. Which, as you point out, is the biggest part of what attorneys do.

James S.

Steven Michael Seys said...

Scott, do any of these advertisers even offer to pay you for the exposure they get on your blog's comment section?

Gritsforbreakfast said...

@SMS, no they don't, and I delete them when I see them.

@James S, I understand their point. My point was that if that's how you earn "respect," it's hardly ever happening so CDLs must not be all that respected.

'B' said...

Grits, I agree with the general sentiment of this post. But I think your definition of a win is too narrow. Often a win in a jury trial occurs when a defendant is acquitted of some charges but not others or when convicted of a lesser charge which reduces the possible penalty. Often when I have success at trial it is not acquitting someone of all charges but securing convictions on misdemeanors that result in a time served or probation sentence. In theory, this type of success is thought to carry over to change someone to make them more reasonable. I'm not a subscriber to this theory, but that's the argument.

- Effy

Gritsforbreakfast said...

@B, I certainly agree that defining a "win" is in the eye of the beholder and not all "wins" are "acquittals." OTOH, juries were only picked 4,107 times out of nearly 600k case dispositions last year, and mostly defendants' lost. Even if some percentage of the trials ending in convictions were a success in the way you describe, it's not happening often and I'm not sure how much respect is being earned.

Anonymous said...

"As an aside, what does it say about the quality of misdemeanor arrests being made if 43% of the cases are being dismissed?"

Since an arrest needs only probable cause while a conviction needs a great deal more, it really doesn't say much of anything about the quality unless you dig deeper.

Otherwise, it's my experience that criminal trial lawyers get the most respect from all others when they 1) do not take plea bargains when the facts clearly support going to trial, 2) when they act in a manner that shows competence in the profession and not rely heavily on gimmicks or tricks as some do, 3) when they do not act like the world revolves around them, and so forth. For the most part, this applies to prosecutors as well, relatively few on both sides deserve the ambulance chaser label or bring to mind the "Saul Goodman" type of sleaze so many regular folks associate with lawyers but everyone knows plenty of examples from what I've seen.

Rick said...

In my opinion, preparing a case for trial means something specific. It means investigating the facts and the law and how the law applies to those particular facts. It means identifying issues that might make a case go away without resort to plea or puffery. It means identifying the issues that might be used as leverage in potential plea discussions. It means being able to look at the evidence through the lens of a jury trial to see how the presentation would play out, and whether that would play to the benefit of the client. It means understanding the trial process so well you can break it down into a digestible form so your client, irrespective of their education or sophistication, can understand; so that they can make the best decision among the available options. Preparing a case for trial isn't a self-indulgent dog and pony show. It certainly isn't a waste of time or talent or toil, irrespective of the statistics. It's the necessary process that allows you to see the value of the case (i.e. where on the spectrum from outright dismissal to conviction a particular case should fall). If you do not approach each case as though it may go to trial, you fail before you begin. And when the situation merits it, you have to be ready and willing to go to trial. And you have to be good. Going to trial isn't necessarily about winning the verdict, though obviously no one that does this for a living-and has an ounce of competitiveness about them-wants to lose. We don't always win the verdict. But that isn't always (or even often) a function of the talent of the trial lawyer. It's a function of the system and its particular architecture, and it's a function of the facts of a particular case. If the government has done its job correctly, the defense should lose most jury trials. In theory, at least. It has always been my opinion that the political aspects of the office of the DAO are what often stand between it and a clear vision of the value of a case. Nevertheless, I don't know anyone who has done this for any appreciable amount of time that expects to win every verdict. Sometimes, it's more about winning the trial than winning the verdict. Smart ADAs know when they've been out-lawyered. It informs their respect for that particular CDL. It allays the cynicism I suspect most ADAs feel when engaged in the forced-polemics that define our daily interactions. It makes it easier to agree on a reasonable resolution. It accrues to the benefit of our clients. Cops don't shoot everyone they make contact with. Soldiers aren't always running full-tilt on a battlefield with bayonets fixed (is that still a thing?). But at the heart of each of those vocations-and the training they employ-is the understanding that you must always be prepared to do exactly that. Our profession is no different, in that respect, than most others: readiness is all.

Sharon Curtis said...

Bottom line, what is the best for the client. Trying a losing case ("see I will try any case")and securing a conviction on the client's record is rarely the best. However, trying a case where your client is wrongly accused, can't be proven beyond a reasonable doubt, has immigration consequences, custodial rights consequences, etc.... is a total different perspective. Also, what does your client want to do.

I have zero respect for prosecutors or defense attorneys who try cases and brag I will try any case.............without considering the interest of justice (as a prosecutor) or the best interest/wishes of their client as defense attorneys.