Another Stupid Discussion About Trying Every Case

In Miami, we have a misdemeanor "jail division." It's for those charged with misdemeanors that haven't bonded out for whatever reason. All their cases are set for trial in the "jail division." There you find the career criminal homeless, the recidivist DUI offenders that no longer have anyone to post bond for them, and others that are sitting in custody for misdemeanors while the county pays about $140 a day for their stay (The downtown Hyatt Regency has a rate in the off season of $129 a night.)

About 15 years ago, while I was still in the public defender's office, my former trial partner was assigned to the jail division. After a few weeks, he had an idea to help the judiciary in their long-standing goal of "moving things along," and filed demands for speedy trial on every case in the division. For some reason, the state wasn't able to try every single defendant in the jail division within 2 months, and so some of these misdemeanants were simply released.

Yeay! Great idea. Everyone loved it. We all cheered, (except the brass at the PD's office who raised some issue as to whether the clients were all on board with the demands and whether this mass filing was in each client's best interest). But we were young, and celebrating at happy hour.

And so now the New York Times has an article about the notion discussed by every PD and private criminal defense lawyer at every bar since the beginning of plea bargaining, of trying every criminal case in order to collapse the system.

Here's my response:

Shut the f*ck up.

It's never going to happen.

Forgetting for a moment that it's (more than) kind of unethical to recommend a client proceed to trial because someone needs to "take one for the team," (and also that lawyers are required to convey plea offers and going home today or going to trial in 3 months isn't really a decision that's difficult for even the dumbest criminal defendant), the private bar won't do it because there's no money in trying cases (and most of the private bar is only interested in not having to work that hard for their fee). The PD's won't do it because, well, every PD in the country has discussed this option, and it's never happened and it's an impossible conspiracy to coordinate.

Yes, if every case, or even a few percentage points down from the current 98% of cases that don't go to trial, went to trial, the defense bar would own courtrooms and judges would be begging the prosecutors for better offers. It would be a watershed in the American criminal justice system.

But it's not happening.

Ever.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer. Post to Twitter