Bob BlackThis seems to me some kind of crazy reform movement that would only continue to survive as long as its impact wasn’t great enough to attract notice. The jury came back in the Mesherle trial that it was manslaughter with a gun enhancement. This reflected the minimum expectations of the community. Because of Mesherle’s flight from  investigation out-of-state, his failure to concoct the tazer excuse until after he was in custody, and that he had to be escorted back to the Bay Area to submit to the investigation, the jury determined he had killed Grant under the requirements of the manslaughter charge. Since using a gun compromises the heat of the moment defense in manslaughter cases it is used as an automatic enhancement without invalidating the manslaughter finding.

Then the judge goes and downgrades the charge and removes the gun enhancement. In his ruling, he says the jury should have been able to understand that this was a tragic accident, when Mesherle shot Grant with his gun instead of his tazer. He rules that any reasonable person would accept Mesherle’s explanation so he over-rules the enhancement

How might jury trials, if there were more of them, change the outcomes of cases? In New York, the Rockefeller drug law of the early 1970s mandated harsh penalties (and limited plea bargaining) for even minor first-time offenses. Judges no longer inflicted harsher penalties on those convicted after a trial than on those who copped pleas. Having nothing to lose, more defendants went to trial — 15%, up from 6.5% — overwhelming the system despite massive appropriations for new courts. After two years the worst features of the law were repealed.28 In a California county at about the same time, one judge placed what the public defender’s office considered unreasonable time limits on plea bargaining. In retaliation, the office took all felony cases to trial. Defendants won 12 out of 16 jury trials, although the defense attorneys would have accepted some sort of guilty plea in 9 out of 10 of those cases. The judge quietly abandoned his new rule.29 A final example: a careful study of a natural or “quasi-experiment” in the banning of felony plea bargaining in El Paso, Texas, in 1975 resulting from a clash between the prosecutor and the judges. The ban caused a considerable increase in jury trials which was in turn largely responsible for a substantial (but gradual) decrease in dispositions. The conviction rate was generally unaffected, but there were indications that there was more screening-out of weak cases after the prosecutor put an end to explicit plea negotiations.30

Here is a scenario — a legal impact statement on FIJA — consistent with common sense and extant empirical studies and omitting the qualifiers and “maybes” to make the main points. FIJA would increase the number of jury trials. Increasing the number of jury trials would increase the number of dispositions favorable to defendants, whether acquittals (as in “Vario County,” California) or dismissals (as in New York) or prosecution decisions not to proceed in weak cases (as in El Paso, Texas). And it would decrease the rate of dispositions — potentially a serious problem for prosecutors, since the Constitution guarantees to most criminal defendants the right to a speedy trial. It will not take the legal professionals of the courtroom work groups very long to calibrate a new equilibrium. They will sort out the many cases where appeals to conscience would be ludicrous from the few which would get a boost from FIJA. A prosecutor would rather drop the charges than lose a case. A judge or defense attorney would rather he dismiss that case too and save them all a lot of unnecessary trouble. He will dismiss the case.



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