Simmered Amphibians and Juries as Toast

I spoke last week to the annual meeting seminar of the National Association of Criminal Defense Lawyers in Portland, Oregon. Part of my talk had to do with the decline in the percentage of cases going to jury trials, and the declining number of jury trials as a whole (an issue I raised in my first blog entry.) While I thought the audience would need a reminder as to these facts, what surprised me was that most of the audience was totally oblivious that this was occurring.

I am reminded of the old recipe for frog soup. You see, if you place a frog in boiling water, it will immediately hop out - stinging, but hardly worse for wear. However, if you place it in lukewarm water, and slowly turn up the heat, the frog will relax in its hot tub, take a nap, and wake up cooked.

So it is with the jury. We attorneys have gradually adapted to measures that reduce the viability or availability of jury trials - from acceptance of responsibility credits for those who plead guilty, to judges who require expensive, time consuming mediation prior to trial. As the jury trial gets rarer, and harder to attain, we adapt to our environment.

To mix culinary metaphors, we need to hop out of the pot before the jury is toast. Too often, we fail to recognize or object to procedures that raise the risk or cost of a jury trial. These mechanisms (and there are more being added practically daily) have become part of the warp and woof of our legal system. Most judges and legislators are not aware of the fact that the jury system is dying, and are not aware that they are contributing to its demise. Many may respond positively once aware of the facts. We should at least give them the chance.

In the meantime, if we don't make ourselves aware (and spread that awareness among others), we become part of this seemingly intractable problem. It is time to break out of this rut and to object to those rules and procedures that act as a tax on the right to a trial by jury -- while there are still those who remember why it is important.