Adam Liptak writes in "Cases Keep Flowing In, but the Jury Pool Is Idle" in the New York Times on April 30, 2007.  Trials are dead and have been replaced by settlements and plea agreements, by mediators, arbitrators and by written orders from judges based written arguments("summary judgment").

    Jury trials have decreased from 5,800 in 1962 to 3,600 in 2006 while the filing of lawsuits have increased almost four fold. In 1962 under two percent of cases ended in summary judgment, while in 2006 over eleven percent  ended in summary judgment. By the way, what happened to that "Litigation Crisis" that the politicians and insurance companies have been complaining about? I guess the bond market has gone back up. 

This shift to decisions by judges rather than juries represents a shift to a european or continental method of jurisprudence where judges make decisions without jury input.

Federal judges have even joined in the outcry as one Judge Mr. Liptak quotes stated, "Those who have the temerity to "request the jury trial guaranteed them under the U.S. Constitution," wrote the judge, William G. Young of the Federal District Court in Boston, face "savage sentences" that can be five times as long as those meted out to defendants who plead guilty and cooperate with the government."

Judges routinely involved themselves in plea negotiations.   A method that is both questionably legal and ethical.  As a judge who threatens increased jail time after a jury trial is making a voluntary plea impossible as there is an element of coercion that can not be removed short of recusal.  This raises ethical questions as well because it creates an appearance of impropriety of collusion  between the bench and the prosecutor.

This also represents a loss of a supporting pillar of our democracy in an era of special interest politics, public relations battles and campaign contributions.  As Thomas Jefferson once wrote, "The Trial by Jury is the only anchor yet imagined by man by which a government may be bound to the principles of its Constitution."  Jefferson also is credited with stating that the right to trial by jury is more important than the right to vote in a democracy. 

Mr. Liptak echos this sentiment in his article, "Indeed, juries were central to the framers of the Constitution, who guaranteed the right to a jury trial in criminal cases, and to the drafters of the Bill of Rights, who referred to juries in the Fifth, Sixth and Seventh Amendments. Jury trials may be expensive and time-consuming, but the jury, local and populist, is a counterweight to central authority and is as important an element in the constitutional balance as the two houses of Congress, the three branches of government and the federal system itself."

  Mr. Liptak finds hope in the Seventh Amendment from an article titled "Why Summary Judgment Is Unconstitutional," published in the Virginia Law Review by Suja A. Thomas, a law professor at the University of Cincinnati.

Mr. Liptak also hopes that Justice Scalia, a strict constructionist, may be on board the jury band wagon citing a 2004 opinion, where "in the process of revitalizing the role of the jury in criminal cases, Justice Antonin Scalia of the Supreme Court wrote that there were good arguments for 'leaving justice entirely in the hands of professionals.' But that is not the theory of the Constitution, he continued, which enshrined 'the common-law ideal of limited state power accomplished by strict division of authority between judge and jury.'"

What would happen if the jury trial disappears? As the member of the inner party told the protagonist in George Orwell's 1984, One essential consequence of doublethink is that the Party can rewrite history with impunity, for "The Party is never wrong." The ultimate aim of the Party is, according to the inner party member, to gain and retain full power over all the people of Oceania; he sums this up with perhaps the most distressing prophecy of the entire novel: If you want a picture of the future, imagine a boot stamping on a human face — for ever.

We will keep trying cases until the people let the Courts and the Politicians take them away!  

---