“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury …” —Sixth Amendment to the Constitution
JANESVILLE—Judge James Daley at a Feb. 23 trial told a group of local residents they were playing a crucial role by serving on a jury.
“It is the cornerstone of our judicial system in this country, and it works very well,” Daley told them.
As the trial ended, Daley thanked the 12, saying juries “protect the individual against arbitrary acts of government.”
Watchers of TV crime-and-justice dramas might get the impression that most criminal cases end in jury trials like this.
In Rock County, the trend is even more pronounced. Only three other counties had a more pronounced dearth of criminal jury trials between 2009 and 2013.
Across the country, in state and federal courts alike, the vast majority of criminal cases end with plea agreements approved by judges. The defendant pleads guilty, sometimes to a reduced charge, or with some charges dropped.
The prosecutor and defense can agree on a recommended sentence, or they can agree that both sides are free to argue about sentencing before the judge.
The judge has the final say on the sentence.
The two sides negotiate the agreement in private, while a trial is open to the public.
In the end, it's up to the defendant to decide: go with the plea agreement or go to trial.
Judges don't have to accept plea agreements, but usually they do.
Judges can decline to dismiss charges if that would be against the public interest, said David E. Schultz, an expert on criminal law with the UW Extension.
“In practice, this is a high standard, with great deference being paid to the prosecutor's decision—the prosecutor is presumed to know the most about the case and therefore is in the best position to evaluate the public interest—so there is ostensibly some judicial authority to refuse to accept a plea agreement, but in practice it is rarely invoked,” Schultz said in an email.
Plea agreements have been around for centuries, but they became more common in recent decades, for a variety of reasons. Some blame over criminalization, the trend of enacting more and more laws defining more and more crimes. Some blame the “war on drugs.”
BY THE NUMBERS
-- Rock County saw 3,052 criminal cases filed last year.
-- The Rock County District Attorney's Office has about 13 prosecutors, according to its website.
-- Just 58 jury trials were held in Rock County from 2010 to 2014, fewer than 12 a year.
The rate of jury trials per criminal case in Rock County is below the state average. Neighboring Walworth County, which has many fewer residents, sees many more trials.
Rock County District Attorney David O'Leary, has said one reason for fewer trials is lack of resources. It's a problem statewide that O'Leary has taken on as president of the Wisconsin District Attorneys Association.
O'Leary declined to comment for this article.
Eric Nelson, who runs the Janesville office of the state Public Defender, offered no reasons for so few trials in Rock County.
“We aren't in pursuit of a particular number of trials. It comes down to particular decisions that are made in each case,” Nelson said.
“We've got a very professional district attorney's office, and we've got good judges and really top-notch defense attorneys,” Nelson said.
But James Welker, a retired Rock County judge, criticized O'Leary's use of plea agreements in the run-up to the recent race for judge, which O'Leary lost by a slim margin.
When Welker was on the bench, defense attorneys often requested a different judge because Welker was known for rejecting plea agreements.
Welker said he remembers that when he and two other judges presided at the now defunct Beloit courthouse, each of them handled 25 or more trials each year, far surpassing the total for the entire county in recent years.
“That is a very, very dramatic change,” Welker said.
It's probably true, as O'Leary has argued, that the DA's office doesn't have the resources to take a lot of cases to trial, but there's no reason each assistant district attorney couldn't try one case a month, Welker believes.
Schultz said the lack of resources is real.
“The district attorneys have been fighting this battle for years. They have done studies of caseloads, as have the public defenders, and both sides can show you what I think are pretty solid figures that show they are understaffed,” Schultz said.
“The DAs have too many cases, the public defenders have too many cases, and that influences the ability to go to trial,” Schultz said.
GOING TO TRIAL--OR NOT
A Gazette analysis of court data from the past five years shows that one assistant district attorney, Jerry Urbik, accounted for 28 of the 58 Rock County jury trials.
The next highest total was Rich Sullivan with six and O'Leary and Mary Bricco with four each. Eight others tried three, two or one each.
O'Leary said in an interview with the Gazette's editorial board before the election that he was proud of keeping child sexual assault victims off the witness stand through plea agreements.
It's an argument many DAs make, Schultz said.
Welker said many studies show that tesitfying creates stress for child victims, but long-term, the effect of testifying is positive, apparently because I helps the children who get to tell their stories.
Welker also is concerned that defendants are pleading guilty in plea agreements even though they know they are innocent, a concern that has been expressed nationally.
“Nobody these days who ever gets arrested ever thinks he's going to be tried. It's a question of what kind of deal you can work out,” Welker said. “And that's kind of permeated the criminal element here in Rock County.
“I think it has a terribly corrosive effect on the population generally,” Welker added.
Asked about that criticism, Nelson said that's not accurate in Rock County.
Even though the number of trials has decreased, the threat of trial is always there, which gives lawyers leverage as they negotiate a plea agreement, Schultz said.
Welker said the threat of trial in Rock County is not credible.
“You have to try a bunch of cases if you're going to get reasonable deals in the cases where you do reach a deal,” Welker said.
Schultz said he also has heard judges express concern that with so few trials, lawyers don't get as much trial experience as they had in the past, a potential liability when they do try a case.
Nelson said local assistant public defenders are trained and get refresher training in trials, so he doesn't see that problem here.
And his office occasionally pairs attorneys who have less experience with more experienced ones here and in neighboring counties, Nelson said.
Nelson noted leaders of the Rock County criminal justice system have embarked on an analysis of how it does its job with an eye toward improving, in a process called evidence-based decision making.
The number of jury trials is not high on the list of data points that decision-makers will be looking at, Nelson said. Higher will be recidivism rates and the way drug-addicted defendants access treatment programs.
Several attorneys who have worked in Rock and Walworth counties, when asked why one county has so many fewer criminal trials than the other, declined to comment.
One attorney who has worked in southern Wisconsin counties and speaking on condition of anonymity said Walworth County prosecutors tend to take a hard line on many cases, forcing defendants to go to trial.
A person who has little or no prior record, for instance, might face a felony forgery charge for using someone's checkbook to steal a relatively small amount, but a Walworth County prosecutor would insist on a plea agreement that includes a felony conviction, the lawyer said.
Such cases should end up with plea agreements that reduce the charges to misdemeanors so the offenders can pay restitution, go on probation and be rehabilitated, rather than being labeled as felons for the rest of her lives, in the lawyer's opinion.
POLICE CHIEF SAYS FEW JURY TRIALS AFFECTS POLICE OFFICERS
JANESVILLE—One consequence of so few jury trials is that police officers don't get practice testifying.
“Years ago, we tended to have many more preliminary hearings, motion hearings and jury trials, and so as young officers, you tended to hone those skills because you were up to the courthouse testifying with some frequency,” said Janesville Police Chief Dave Moore. “Now, our young officers just don't have that exposure, and when they do have that jury trial come along or an important motion hearing, it's a new experience for them.”
Moore said he talked to District Attorney David O'Leary about the problem recently, and O'Leary offered to come to the police department to train officers.
“An officer is nothing more than a witness, but like any witness. If a person becomes nervous or perhaps less persuasive than they could be, that could have an effect,” Moore said.
“If we don't do our job well, potentially a criminal is out on the street to victimize others,” he added.
“I think the officers in general do pretty well, but it's just like anything, the more you do a particular skill, he better you get at it,” Moore said.