ELKHORN—When Cecelia Klingele is in class with her law students, she gives them a hypothetical scenario.
If they were falsely charged with a felony sexual assault and a prosecutor offered to dismiss the felony in exchange for a guilty plea to misdemeanor disorderly conduct, would they take it the deal?
Nearly all students say they would plead guilty to the misdemeanor rather than risk a jury finding them guilty of the felony.
“I would probably plead guilty under those circumstances because often times what is at stake is such a severe punishment for many crimes,” said Klingele, a UW-Madison Law School professor and criminal law expert.
Every person charged with a crime has the right to a jury trial, but criminal jury trials are rare events in state and federal courts.
Statewide, 1.09 percent of criminal cases ended with jury trials between 2009 and 2013, according to state court data.
Locally, Walworth County far outpaces Rock County in criminal jury trials.
In that five-year span, the Walworth County District Attorney's Office handled half as many criminal cases as the Rock County office but had more than double the trials, according to a Gazette analysis of Wisconsin court records.
From 2010 to 2014, Walworth County had 145 jury trials. Rock County had 58.
The percentage of criminal cases that go to a jury trial in Walworth County is also above the state average, and Rock County is below, records indicate.
Walworth County is ranked No. 9 out of the 72 Wisconsin counties for the percentage of cases resulting in trials from 2009 through 2013. Rock County had the fourth-lowest percentage, ahead of only Adams, Trempealeau and Lafayette counties.
Klingele said the widely differing numbers between neighboring counties are striking but not uncommon.
Instead of trials, the vast majority of cases are resolved with plea agreements. Nationally, about 3 percent of state criminal cases go to trial, Klingele said.
That Wisconsin hovers near 1 percent should concern people, Klingele said.
“If we really believe that jury trials are an important part of American criminal justice system, we need to better understand why it is there are so few of them and what we can do to encourage their use in appropriate cases,” she said.
In many cases, plea agreements make sense for everyone involved, Klingele said.
“It consumes fewer resources, it gives more efficient and favorable outcomes for defendants, and it often lets us get to a good outcome for punishment without overburdening the criminal justice system."
"In other cases I think it becomes a way of rushing to a sentence without examining or developing the facts about what actually happened or the culpability of the person being convicted," she said.
Why Walworth County has more criminal trials than average is a question attorneys in the county and Klingele said they couldn't answer.
Walworth County District Attorney Dan Necci had no explanation and neither did Travis Schwantes, manager of the public defender's office in Walworth County.
Necci said there is “no accurate way to measure” the difference between district attorney's offices and doesn't see “a lot of differences between district attorney's offices around this state.”
“All I know is we do our darndest every day to make sure we're charging cases we can prove and that we are making settlement offers that reflect what we believe to be the notions of justice to our community, that's what we're trying to do every day,” Necci said.
“If that results in more or less jury trials than another county, then so be it. They're reflecting a different community, they have different resources. They have different judges, different defense counsel. It's not something I can directly compare.”
Child sexual assault cases were the second-most common type of criminal cases to go to trial. That might be because of resources in the county such as the Walworth County Child Abuse and Neglect Team.
In the last five years, Walworth County had 25 child sexual assault trials. Rock County had one.
Schwantes was surprised when he saw the differences in trial numbers between the counties.
“No one can look at these numbers and not be shocked,” he said. “They're so different. The pure 145 in Walworth County versus 58 in Rock County--that's a huge disparity, and I don't know why.”
It is neither a “good or a bad thing, but I do think that it clearly turns on local practice,” Schwantes said.
A defense attorney who practices in both Rock and Walworth counties said “reasonable” plea bargains are more easily reached in Rock County.
The attorney spoke on the condition of anonymity, saying that commenting about the practices of prosecutors could affect the attorney's ability to negotiate agreements in the future.
Defendants sometimes take plea agreements in Walworth County thinking “if you were someplace else, this probably wouldn't be a good deal, but here it's the best you're going to get,” the attorney said.
Necci said his job is not to make defendants happy.
“Justice comes first,” Necci said. “I'm always willing to listen, and we do. We settle a lot of cases … but ultimately we have to make sure justice is done.”
If that means a defendant not wanting to take a plea bargain, he and his staff are more than willing to go to trial, he said.
If prosecutors lack evidence to prove a serious crime but can prove a lesser crime, Necci said his office keeps that in mind.
“If we believe there is an awfully good chance that somebody who did something wrong is going to get off scot-free, you have to mitigate that,” Necci said.
Whether a case goes to trial is up to the defendant.
“It's unique to every individual client,” Schwantes said. “I definitely think people do a cost-benefit analysis of what are the facts that could come in as evidence that I can't stop from coming into evidence.”
A defendant might decide to go to trial if a prosecutor offers a plea agreement that doesn't fit the defendant's ideal.
A defendant might decide to accept a plea offer if she's not be able to afford childcare or can't miss work for a trial.
“You try to have people take the long view about their life and not just make the decision for this week or next week," Schwantes said. "In the end, it ultimately is only their decision.”