Are Jury Trials Alive and Well in Texas?

 Posted on August 11,2018 in Uncategorized

And I think it's obvious that >95% of criminal convictions-including people who later turn out to be incontrovertibly innocent-being obtained through guilty pleas is deeply concerning. If you don't-and I still can't tell because you won't say-then we'll have to agree to disagree.- Clark Neily (@ConLawWarrior) August 11, 2018

I wrote on this topic some years ago, here. My sense then was that the slow death of the jury trial in federal criminal cases did not reflect what was happening here in Texas:

Closer to earth, where most criminal prosecutions actually take place, the dynamic can be quite different.

In our discussion on Twitter, Clark mixed two ideas: Type I errors in the criminal justice system, and too-common jury-trial waivers. Errors in the criminal-justice system-actually innocent people being found guilty-are deeply concerning. But such errors happen both through guilty pleas and through jury trials. (Every incontrovertibly innocent person sent to death row was sent there by a jury.)

Is it obvious, then, that more than 95% of criminal convictions being obtained through guilty pleas is deeply concerning? It is not obvious to me. Maybe it's common sense, so let's take a look at that premise.

First, let's compare the situation to a perfect world. In a perfect world, a defendant would be able to accurately predict the outcome of a trial before deciding whether to plead guilty. In such a world, the only cases to be tried would be those in which the defendant had nothing to lose, and wanted to make the state work to imprison him.

"Well," you might say, "in a perfect world there would be no additional cost to the defendant in exercising rather than waiving his constitutional right to a jury trial!" I think not-even in a perfect world, the person who accepts responsibility for his actions will be punished less severely than the person who does not.

So in this crimeridden but otherwise perfect world only those who have nothing to gain by accepting responsibility-they're going to get life in prison either way-will go to trial. The vast majority of convictions will be the result of guilty pleas.

In this less-than-perfect world, though, the reductio ad absurdum of "a perfect world" doesn't carry us very far beyond illustrating that the Neily Obvious Number, "percent of convictions resulting from jury trial waivers," is not by itself a measure of the health of the jury trial system.

There are two ways that the NON could be lowered. One is for fewer people who would otherwise plead guilty to waive jury trials. If fewer people waived a jury trial, obviously, the NON would be zero.

The other way to lower the NON would be to increase the state's chance of winning at trial. If everyone who went to trial lost, obviously, the NON would be lower. That'd be a less-good thing.

Realistically, if fewer people waived jury trials, the state would try more whales and fewer dogs, and the state's chance of winning at trial would increase as the number of guilty pleas decreased. Such a shift in the trial / no-trial equilibrium would not, overall, be a bad resolution.

But "this change would improve the system and lower the NON" does not mean that the NON itself is an indicator of systemic health. The NON, without other statistics, means little.

That's fortunate, since in Texas the NON (Row 18 here) is nearer 100 than 95. The NON in Texas on misdemeanor cases has been over 99% for as long as the Office of Court Administration makes statistics available online.

The NON in Texas on felony cases has increased since 1992. Just as it is less than obvious that a high NON signals a problem, it is not clear that an increasing NON signals deterioration, but it does get our attention.

Texas has two sorts of court that try jailable offenses: district courts and statutory county courts. District courts generally try felonies; statutory county courts try only misdemeanors. I've compiled some of the relevant statistics from the Office of Court Administration's site into a couple of Google spreadsheets:

(These numbers show Harris County's outsized effect on Texas criminal-justice statistics: More than half of the large decrease in dispositions between 2016–17 and 2017–18 is attributable to Harris County, where Hurricane Harvey broke the criminal-justice system in August 2017, and dispositions of felony cases dropped from 36,000 to 12,000.)

The OCA provides statistics for probation revocations as well; being interested only in the trial-or-no-trial decision, I looked only at initial dispositions of cases (tried or pled; judge or jury; convicted or acquitted or placed on deferred-adjudication probation).

When we decide what numbers matter, it helps to understand what is going on. Whether to waive a jury is a defendant's choice, but the limiting factor in the number of jury trials is not defendants' willingness to go to trial. Instead it is the system's capacity for jury trials-the number of cases the courts can try, and the state's willingness to go to trial.

Dan gets charged with a crime. At some point Dan is given the choice of waiving a jury trial and pleading guilty (either with an agreed sentence or "open" to the judge), or not waiving a jury trial.

If Dan elects not to waive a jury trial, the state at some point has to decide whether they really want to try him.

There could of course be several iterations of this-Dan decides not to waive a jury trial for this deal; the State offers something better or threatens something worse; Dan has to make another decision. But ultimately the State has to decide whether to try Dan.

The courts' resources (such as trial time and jurors) are limited, so the State's decision whether to try Dan depends in part on whether there is someone else who they should try instead. The more serious Dan's offense, the more likely his case will be tried; the stronger the evidence against Dan, the more likely his case will be tried. But trying Dan most likely means not trying someone else-either dismissing a case, or lowering a plea offer.

People who don't practice in the system often don't recognize that a dismissal reflects a refusal to waive a jury trial just as well as a jury trial does; the rate of people actually waiving a jury is the most important because it reflects attitudes toward jury trials. If people lose faith in juries, we'll see it in an increasing rate of trial waivers.

So for Dan, the Sixth Amendment works not only when he is acquitted, but also when the State chooses to dismiss his case so that they can try someone else. It even works, albeit in a smaller way, when the State makes him an offer that he can live with so that they can try someone else.

The Sixth Amendment may be working for society even if it doesn't work for Dan. Dan might wish he had waived a jury trial if the jury convicts him and he has lost the benefit of accepting responsibility early, but if Dan was factually guilty (at this point, who can say that he wasn't?) the Sixth Amendment has provided its benefit to society.

If this all strikes you as very difficult to capture in a single statistic, you're not alone.

I think that the notion that things are getting worse in our lifetimes is implicit in criticism of the criminal-justice system. And in the federal system things have gotten worse in our lifetime. But the Texas system is so different from the federal system that we might as well be our own country.

So let's look at these numbers and see if we can find possible deterioration.

First, prosecution rates (Line 12) are fluctuating, but not obviously trending upward. That's good news for those concerned about creeping overcriminalization.

The number that I think is most important-trial waivers per disposition (Line 19)-has remained about the same in both misdemeanor and felony cases since 1992. About 77% of people charged with felonies, in Texas, and about 65% of people charged with misdemeanors waive a jury, waive a jury. Even as prosecution rates (Line 12) fluctuate, rates of waiving jury trials remain constant.

(Is 77% low enough? Nah; I'll always want to see more people refusing to waive jury trials. But I will wager that Texas's 77% is lower than the rate of jury-trial waiver for defendants in most states.)

The "convictions by the court" and "acquittals by the court" numbers are interesting. I don't know many lawyers who try cases to the court looking for a "not guilty"; my guess is that most of the 2,251 "convictions by the court" in the 2016–17 period were failed attempts to get deferred-adjudication probation. But the rate of court convictions is not obviously moving in any direction.

The much more insidious statistic, in my view, is on Line 14: deferred-adjudication probations per disposition. In felony court this number appears to be creeping steadily up; in the 2016–17 period a shocking 25% of felony defendants took deferred-adjudication probation.

Deferred-adjudication probation is a form of probation in which the defendant pleads guilty, and is put on probation, but is not found guilty... yet. For many defendants, deferred-adjudication probation is a trap. These defendants don't have their lives together enough to succeed on probation; if they take deferred-adjudication probation and screw up the probation, they face the maximum punishment for the offense, with little in the way of process keeping them out of prison.

The State can make deferred-adjudication probation more enticing by making the successful completion of deferred-adjudication probation more easily sealed from public view, but this doesn't make it any better an idea for anyone who is not going to successfully complete it.

From the data I've put together, it doesn't appear that the increase in deferred-adjudication probation has come at the expense of jury trials (the waiver rate, Line 19 does not increase with the deferred-adjudication probation rate, Line 14). But I will keep an eye on this in the future.

My discussion with Clark started with my assertion that:

Nevertheless I started this post assuming that the numbers would not back up my assumption, or that I would at least find the Sixth Amendment's health deteriorating in Texas. In the data available to me I see no strong evidence that things are getting worse.

One of the reasons that the jury trial might be in better shape in Texas than elsewhere is that the right to have a jury determine punishment, combined with the very broad ranges of punishment for most offenses in Texas, makes coercive plea bargaining highly unlikely.

While the legislature has made moves to take away juries' sentencing discretion (for example, depriving juries of the power to recommend probation for defendants convicted of murder), none of these moves have changed anything in broad strokes.

In static numbers, I'd like to see how Texas stacks up against California or New York, but I'm not getting paid to do that research.

Unfortunately those who are getting paid to do that research have preconceived notions of the readily available statistics that support their preexisting opinions and that are facile, obvious, and wrong.