“Those who think differently will always have haters”
The Lit Lawyer
“Those who think differently will always have haters”
The Lit Lawyer
|Health is the greatest gift, contentment the greatest wealth, faithfulness the best relationship.|
The best way to find yourself is to lose yourself in the service of others.
— Mahatma Gandhi
|Work out your own salvation. Do not depend on others.|
28 Then Agrippa said to Paul, “Do you think that in such a short time you can persuade me to be a Christian?” 29 Paul replied, “Short time or long—I pray to God that not only you but all who are listening to me today may become what I am, except for these chains.”
N.Y. / REGION
Jury Trials Vanish, and Justice Is Served Behind Closed Doors
By BENJAMIN WEISER
AUG. 7, 2016
The federal courthouse in Lower Manhattan, part of the Southern District of New York, where the vanishing of criminal jury trials has never seemed so pronounced.
The criminal trial ended more than two and a half years ago, but Judge Jesse M. Furman can still vividly recall the case. It stands out, not because of the defendant or the subject matter, but because of its rarity: In his four-plus years on the bench in Federal District Court in Manhattan, it was his only criminal jury trial.
He is far from alone.
Judge J. Paul Oetken, in half a decade on that bench, has had four criminal trials, including one that was repeated after a jury deadlocked. For Judge Lewis A. Kaplan, who has handled some of the nation’s most important terrorism cases, it has been 18 months since his last criminal jury trial.
“It’s a loss,” Judge Kaplan said, “because when one thinks of the American system of justice, one thinks of justice being administered by juries of our peers. And to the extent that there’s a decline in criminal jury trials, that is happening less frequently.”
The national decline in trials, both criminal and civil, has been noted in law journal articles, bar association studies and judicial opinions. But recently, in the two federal courthouses in Manhattan and a third in White Plains (known collectively as the Southern District of New York), the vanishing of criminal jury trials has never seemed so pronounced.
The Southern District held only 50 criminal jury trials last year, the lowest since 2004, according to data provided by the court. The pace remains slow this year.
In 2005, records show, there were more than double the number of trials: 106. And decades ago, legal experts said, the numbers were much higher.
“It’s hugely disappointing,” said Judge Jed S. Rakoff, a 20-year veteran of the Manhattan federal bench. “A trial is the one place where the system really gets tested. Everything else is done behind closed doors.”
Legal experts attribute the decline primarily to the advent of the congressional sentencing guidelines and the increased use of mandatory minimum sentences, which transferred power to prosecutors, and discouraged defendants from going to trial, where, if convicted, they might face harsher sentences.
Julia Gatto speaking outside court in Manhattan in 2013. She said a client, Oumar Issa, who was arrested on terrorism charges in 2009, accepted a deal to plead guilty. “It was the only thing he could do,” she said. Credit Brendan Mcdermid/Reuters
“This is what jury trials were supposed to be a check against — the potential abuse of the use of prosecutorial power,” said Frederick P. Hafetz, a defense lawyer and a former chief of the criminal division of the United States attorney’s office in Manhattan, who is researching the issue of declining trials.
Julia L. Gatto, a federal public defender, recalled the case of Oumar Issa, a Malian arrested in Africa in a 2009 sting operation on charges of narco-terrorism conspiracy, which carried a mandatory minimum 20-year sentence, and conspiring to support a terrorist organization, which had no minimum.
Although Ms. Gatto and her client believed that elements of the case were weak and that there were strongly mitigating circumstances, Mr. Issa concluded that the risk of going to trial was too high. He pleaded guilty in 2012 to material support, with prosecutors dropping the other charge. He received 57 months in prison. “It was the only thing he could do,” Ms. Gatto said. “His hands were tied.”
In 1997, according to federal courts data nationwide, 3,200 of 63,000 federal defendants were convicted in jury trials; in 2015, there were only 1,650 jury convictions, out of 81,000 defendants.
Former Judge John Gleeson, who in March stepped down from the federal bench in Brooklyn to enter private practice, noted in a 2013 court opinion that 81 percent of federal convictions in 1980 were the product of guilty pleas; in one recent year, the figure was 97 percent.
Judge Gleeson wrote that because most pleas are negotiated before a prosecutor prepares a case for trial, the “thin presentation” of evidence needed for indictment “is hardly ever subjected to closer scrutiny by prosecutors, defense counsel, judges or juries.”
“The entire system loses an edge,” he added, “and I have no doubt that the quality of justice in our courthouses has suffered as a result.”
While the decline in jury trials in federal court has been felt by judges, lawyers and defendants, it has also disrupted the rhythm of the courthouse ecosystem and those who depend on it.
Former Judge John Gleeson, who recently left the federal bench in Brooklyn, cited in a 2013 opinion the sharp increase in the percentage of federal convictions that stemmed from guilty pleas. Credit Todd Heisler/The New York Times
Young lawyers typically become clerks for Southern District judges to gain valuable trial experience; now, some clerks depart without having worked a single trial.
Even the court’s stenographers, whose incomes depend partially on the number of transcript pages they produce, feel the impact.
“It’s been awful,” said Rebecca Forman, who said she transcribed her last criminal jury trial in November 2015. “I didn’t send my kids to camp this summer. I didn’t have the money.”
New York State Court data also shows a striking decline in felony jury trials. In 1984, there were over 4,000 jury verdicts; in 2015, there were fewer than half of that.
Preet Bharara, the United States attorney in Manhattan, speaking to a lawyers group in 2012, cited another effect of the decline: fewer Americans serving on juries. “When trials vanish, citizenship also suffers,” Mr. Bharara said, according to his prepared remarks.
Beyond the statistics, though, the decline in trials in the Southern District has become a frequent topic of discussion, even among judges themselves.
“We’d love to have more trials; most of us enjoy trials,” said Judge Alvin K. Hellerstein, who joined the bench in 1998.
In April, when Judge Shira A. Scheindlin resigned from the bench after more than two decades, she said the decrease in trials was one consideration for her departure. “Trials are way, way down,” she said. “The building’s quite dead.”
Faisal Shazad, who planted a bomb in Times Square, depicted in a courtroom sketch in 2010. He is among recent defendants in the Southern District who have pleaded guilty instead of going to trial. Credit Elizabeth Williams/Associated Press
Judge P. Kevin Castel, who helped to organize the court’s 225th anniversary celebration in 2014, recalled taking a friend, Mary Noe, a legal studies professor at St. John’s University, to see an exhibit of courtroom illustrations documenting Southern District trial scenes of past decades. But as they reached the end, Professor Noe observed that the sketches of more recent defendants, like Bernard L. Madoff and the would-be Times Square bomber Faisal Shahzad showed them pleading guilty.
“I was like, what happened to the trials?” she recalled.
Judge Analisa Torres said she had felt the difference ever since joining the federal bench in 2013. Judge Torres, a former state court judge who handled about two dozen criminal trials a year in Manhattan and the Bronx, said she has since had just a few such trials. “It’s day and night,” she said.
On the state bench, she said, she spent her entire day in the courtroom but for the lunch hour. “Now, I am in chambers all day long.”
The hallowed jury trial is a right enshrined in the Constitution and immortalized in American culture. But these days, said Daniel C. Richman, a professor at Columbia Law School, “‘12 Angry Men’ is more a cultural concept than a regular happening.”
To be sure, federal judges are not exactly sitting on their hands. They maintain dockets filled with civil and criminal cases that wend their way through the process — even if most are resolved without a trial.
As for Judge Furman, he is still waiting for his second criminal jury trial since becoming a judge in 2012. He almost had one earlier this year, but a scheduling conflict with a civil trial meant he had to pass it to another judge.
Another criminal trial loomed this summer. Then it, too, disappeared from the calendar, as the defendant pleaded guilty.
It meant he would have more time to get other work done in chambers, Judge Furman recalled, and there was plenty of that to do.
“But there’s a tinge,” he added wistfully, “of what might have been, that we thought we had one, but it got away.”
A version of this article appears in print on August 8, 2016, on page A1 of the New York edition with the headline: Jury Trials Vanish, and Justice Is Served Behind Closed Doors. Order Reprints| Today’s Paper|Subscribe
Flynn, Michael Edward
Updated Jul 13, 2016
Michael Edward Flynn received a re-assignment to one “Pearly Gates” on Tuesday, July 5, 2016; this included an excellent benefits package and the opportunity to see some people he hadn’t seen in a while. He now has the leisure to play with all of his dogs and the chance to finally have a decent glass of brandy.Michael repeatedly insisted to everyone he met that he was the most “normal” person they would ever meet – this was definitely not true. While he might have been a normal child in June of 1947, that was about the end of it. At some point he realized he was too smart for his own good, and was admitted to the University of Virginia. While it is entirely possible he learned course content, this was never mentioned in lieu of speaking about fraternity houses shooting flaming arrows at each other’s roofs and how he had to “walk 15 miles uphill in winter” to get to class.He enlisted into the Army at the height of the Vietnam War, which in his words, “sucked muy much.”Despite his terrible eyesight, he was only one target away from qualifying as a sharpshooter. He insisted the missed target didn’t count, as it had holes the size of a potato and was the easiest to hit. The drill sergeant did not share this opinion, and Michael was made to do 50 pushups. This would become a frequent occurrence in his time in the service.Following his service, he went back to school for an MBA in Finance; he would then spend the next 25 years working with banks and Wall Street Firms, such as “Goldman Sucks”. His affectionate names for the “Yankee heathens” only grew more colorful as he moved further into his career, much like his personality. Following the completion of a billion dollar mortgage back security trade, and attaining the title of Senior Vice President, he decided to leave banking and pursue something infinitely more challenging: being a stay-at-home dad. Most of his day-to-day instruction involved advice about the current state of the financial markets and really bad puns (his favorite).Following his development into a grumpy old Irishman, he provided many useful pieces of advice such as: “you can pick your friends, and you can pick your nose – but you can’t pick your friend’s nose”. Michael would also frequently croon “Good Morning Starshine” up the stairs to his sleeping children at 7 a.m. He loved chocolate pudding with Cool Whip, steak with Barnaise sauce, and taking long, meandering naps. Occasionally, he would also enjoy take-out from the local greasy spoon and regret it hours later.Michael is survived by his extremely patient, and long-suffering wife, Sylvia, who would often hear him cackling in the next room over and could only assume the worse. He is also survived by his hard-headed yet soft-hearted children, John and Elizabeth, and an adorably cantankerous German Shepherd puppy named Ivy (named after Ivy Road at UVA, of course). He was preceded in re-assignment by his father, Edward Flynn, and his father-in-law, Colonel Victor White, both of whom are likely inviting him to get wasted at the Pearly Gates bar.Michael was always told he was an “out of the box thinker,” to which he would reply that he “didn’t know there was a box”. After fulfilling his wishes of a traditional, private burial, his family can only assume he is laughing mightily at this irony up in heaven.In lieu of flowers, please consider making a donation to Sheltering Arms Physical Rehabilitation Center (Atlee Road in Hanover) or your local ASPCA in Michael’s name. If these options are not available, you may also make disparaging comments about the current state of the financial markets or political platforms in solidarity with his most recent grumblings.Townes Funeral Home is serving the Flynn family. Online condolences may be made at http://www.townesfuneralhome.com
Those who are free of resentful thoughts surely find peace.
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