By Jay Weaver
The Miami Herald
March 14, 2005

Florida - From his ninth-floor chambers in downtown Miami, Senior U.S. District Judge William M. Hoeveler looks across North Miami Avenue at the future of the federal court system -- a pair of tinted-glass towers jutting into the skyline.

The new 15-story federal courthouse, designed by Arquitectonica, will also feature a transparent atrium between the towers.

With the $163 million project opening this fall, Hoeveler wonders if all that space -- up to 16 courtrooms -- is necessary, given a downward trend in caseloads.

The new building will house 12 Miami judges, leaving up to four vacant courtrooms. A nearby federal court will be left with three more empty courtrooms in the reorganization.

''Whether or not it is needed now is very problematic,'' Hoeveler said. ``Right now, the business of the court is not as active as it used to be.''

Records to be released this week by the federal government document the decline: The number of criminal trials has plummeted by nearly 30 percent in the Southern District of Florida during the past decade, and civil trials have plunged even more, by almost 40 percent.

In legal circles from Miami to New York to Los Angeles, the nationwide phenomenon has been dubbed the ''vanishing trial.'' In the past decade, the combined number of criminal and civil trials has dropped by 25 percent across the country, according to records from the Administrative Office of the U.S. Courts.

The main reasons, several court observers say, include federal law enforcement's stepped-up focus on anti-terrorism, resulting in fewer criminal investigations in other areas; a huge increase in pretrial plea deals, driven by defendants' concerns over tough sentencing guidelines; and the resolution of more civil disputes through outside mediation or arbitration.

When Congress began funding the courthouse project nearly a decade ago, South Florida was one of the busiest judicial districts in the country. Federal case filings had skyrocketed in the 1980s and '90s, fueled by the heydays of drug smuggling.

''The new building was based on numbers then, without a clue that in 2000 to 2005, the criminal and civil filings were going to drop off,'' said Senior U.S. District Judge James Lawrence King. He joined the other district judges in 1992 in unanimously calling for a new downtown courthouse.

King, a judge since 1970, acknowledges the downturn in trials, but supports the need for the new courthouse, which will be named for the late federal Judge Wilkie D. Ferguson.

''I do not believe it was a mistake because this county has consistently experienced exploding growth,'' said King, who handled 16 trials last year compared with 53 in 2000. King, despite his semi-retirement status as a senior judge, has always been assigned the same caseload as full-time judges.

The declining caseload trend comes at a time when the Southern District, which stretches from Key West to Fort Pierce, is in a state of flux.

Last year, Chief U.S. District Judge William J. Zloch and a narrow majority of the 17 district judges recommended shutting down the federal courthouse in downtown Fort Lauderdale to cut operating costs. Zloch's plan: split the caseloads between Miami and West Palm Beach courthouses.

Zloch declined to comment for this story. According to legal sources, Zloch's recommendation had nothing to do with the opening of the new Miami courthouse.

But others said the timing is hard to ignore.

''Does Burdines think about closing a store if it's busy? I don't think so,'' said veteran Miami criminal defense lawyer Richard Sharpstein.

DISTRICT MAY CHANGE

In an attempt to keep the Broward Boulevard courthouse open, Republican Congressman Clay Shaw plans to introduce legislation soon to divide the Southern District, with Miami-Dade and Monroe counties in one part and Broward, Palm Beach, Martin and St. Lucie in another. Under his plan, Fort Lauderdale would be the seat of the second district, with its own courthouse.

The impact of declining caseloads on South Florida's criminal federal court system can be traced back to the Sept. 11, 2001, terrorist attacks. Federal agencies like the FBI and Immigration and Customs Enforcement have focused more resources on preventing new terror strikes and less on traditional investigations such as drug conspiracies, bank robberies and public corruption.

''Clearly and appropriately, terrorism was made the No. 1 priority in the nation,'' said Guy Lewis, former U.S. attorney in Miami and past director of the Executive Office for U.S. Attorneys in Washington, D.C. ''As a result, those traditional types of criminal cases, while important, must take a back seat to preventing another terrorist attack,'' he said.

Allan Kaiser, a former longtime federal prosecutor, agrees.

''It's not like crime is going down -- the focus is different,'' said Kaiser, who prosecuted the last major corruption case in South Florida, the 2003 trial of 11 Miami cops on gun-planting charges.

``Now you see more cases for fake passports, false visas and alien smuggling. Those types of things fall under the umbrella of terrorism.''

Not only are criminal case filings down, but trials are rare these days. One reason: Defendants have increasingly sought plea deals, the most common outcome in federal court.

Under sentencing guidelines, defendants can shave months or years off their sentences by accepting responsibility for their crimes up front.

20 VS. 205 YEARS

In 2003, for example, reputed Miami smuggler Willy Falcon pleaded guilty to money laundering millions of dollars to fix a 1996 trafficking trial and was sentenced to 20 years in prison. Had he gone to trial and lost his case, Falcon might have ended up like his partner, Sal Magluta, who was convicted by a jury and sentenced to 205 years.

The ''vanishing trial'' trend troubles many in the legal establishment who say it cuts to the core of democracy in the federal court system. The issue has caused such a stir that a national summit on ''The American Jury Trial: Do We Allow Its Death or Lead Its Rebirth?'' will be held in Las Vegas in late March.

''I'm afraid we're looking at a new direction unless we do something about jury trials,'' said Hoeveler, who presided over the drug-smuggling trial of ex-Panamanian strongman Manuel Noriega and dozens of other major cases in the '80s and '90s.

''It's a bad result to eliminate or discourage jury trials because defendants have a right to them,'' said Hoeveler, appointed to the federal bench in 1977. ``They are in large part being coerced to avoid them in criminal cases.''

That's because of mandatory sentencing guidelines, passed by Congress in 1984. Lawmakers stripped away a judge's discretion by requiring them to use a range of tougher sentences for crimes.

Controversy followed because the guidelines gave judges some leeway to impose stiffer sentences for certain criminal activity without input from a jury.

In recent years, almost 90 percent of South Florida defendants have cut plea deals to avoid going to trial, being convicted and facing the toughest possible prison terms.

''There are structural incentives in place that discourage trials and encourage pleas,'' said Reuben Camper Cahn, chief assistant in the Federal Public Defender's Office.

Added Federal Public Defender Kathleen Williams: ``It's crowding out due process and it's crowding out jury trials.''

In January, the U.S. Supreme Court ruled that federal judges are no longer required to follow the sentencing guidelines. Instead, they can use them in an ''advisory'' manner to help them come up with ''reasonable'' sentences.

Whether the high court's ruling will indirectly stimulate more trials remains unclear. But if there are more trials in the long run, the new Miami courthouse will have enough courtrooms to handle them.

''In the short term, somebody could make a criticism of the new building,'' said U.S. District Judge K. Michael Moore.

Moore has supervised the courthouse project since just after he was appointed to the bench in 1992. Back then, the average trial activity per judge was twice as high as today.

''I would take the longer view that for the first time in 30 years, we will take space off the table as an issue for this court to have to deal with in Miami,'' Moore said.

New Poll Shows Strong Support for Jury System

August, 9, 2004

 ATLANTA,  – A new public opinion poll, released today by the American Bar Association, reveals that Americans have a profound belief and trust in the jury system, and disproves the popular notion that Americans consider jury duty to be a burden to be avoided. In remarks prepared for delivery at a news conference, incoming ABA President Robert J. Grey Jr. noted that despite such beliefs, courts around the country report serious problems with low response rates to jury summonses.

Grey drew a parallel between jury service and voting, noting that they are “about the last opportunities left to regular Americans who want to participate in making democracy work – and there is a similar dichotomy. We believe in it wholeheartedly, but serving on a jury today may just not be convenient. If we are to improve the response rate to summonses, we must work to strengthen Americans’ understanding that the system they so respect works only when they are actively involved.”

Grey announced a new initiative and the formation of two groups to work on ways to accomplish that goal – the American Jury Project, which is working to produce a single set of modern jury standards the ABA can propose as a model, and a blue-ribbon Commission on the American Jury that will be working on outreach to the public, the profession and the courts. The Project is chaired by Phoenix lawyer Patricia Refo. Sandra Day O’Connor is honorary co-chair of the Commission, which has three co-chairs – New York Chief Judge Judith Kaye, Chicago lawyer Manuel Sanchez, and Oscar Criner, foreman of the Arthur Andersen jury in 2002.

Three-quarters (75 percent) of those polled rejected the assertion that jury duty is a burden to be avoided. Instead, the poll revealed that Americans strongly believe that jury service is important even if it seems inconvenient – a belief held even more strongly by those who have previously been called to jury duty. And even beyond “important,” 58 percent consider jury duty a privilege, and a responsibility they look forward to fulfilling. Noted Grey, “Interestingly – but not surprisingly – people who have been called for jury service believe this even more strongly than those who have not, and a majority of those who have been on a jury would like to do it again.”

Moreover, a large majority of Americans – 75 percent – would want a jury, rather than a judge, to decide their case if they were ever a participant in a trial.

“If we are to sustain Americans’ respect for the jury system,” Grey said, the legal profession must take steps to move the jury experience into the 21st century.

“The American Bar Association spends much of its energy and resources on improving the justice system,” Grey said. “We’ve looked at prosecutors. We’ve looked at the independence of the judiciary. We’ve looked at public defenders and indigent defense funding. We’ve looked at juvenile justice. We’ve looked at and worked to improve virtually every aspect of the system – except juries. No one focuses on jurors.” He pledged during his year as ABA president to “speak on behalf of American jurors.”

The telephone survey was conducted by Harris Interactive within the United States from July 15 through July 18, 2004, among a nationwide cross section of 1,029 adults (aged 18+). Of these, 693 had been called for jury service in the past. Figures for age, sex, race, and geographic region were weighted where necessary to align them with their actual proportions in the population.

With a probability sample of this size, one can say with 95 percent certainty that the results have a statistical precision of plus or minus 3.1 percentage points of what they would be if the entire adult population had been polled with complete accuracy.

With more than 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law in a democratic society.

     Sizable Decline in Jury Trials Puts Lawyers in Quandary

By Gina Holland
AP- Tallahassee Democrat
August 8, 2004

ATLANTA - Jury trials are in a sharp decline. More accused criminals are opting for plea deals, and companies are finding it cheaper to settle disputes through arbitration or other means.

The nation's largest lawyers group is not sure if there is anything it could - or should - do about the situation, which is changing the way law schools educate future attorneys and making skilled negotiators in greater demand than trial lawyers.

About 40 years ago, more than 11 percent of civil cases in federal courts were resolved by trials. Today it is less than 2 percent. Federal criminal trials have fallen by one-third throughout the past 40 years. Federal judges who once heard nearly 40 trials a year now preside over fewer than 13.

Lawyers accept part of the blame, acknowledging their costly fees and massive paperwork demands before a trial. Some lawyers recommend that clients settle out of court because they have more control and the results often can be kept secret.

"Trial lawyers are becoming a misnomer," said Robert Clifford, a Chicago lawyer who contends judges contribute to the situation by strongly encouraging settlements.

So far, the 400,000-member American Bar Association has not taken up any policy suggestions.

George Washington University law school professor Paul Butler said the ABA could endorse the idea that judges increase the number of trials. The group also could recommend changing federal criminal sentencing rules that now make it more attractive for defendants to plead guilty with the promise of lighter prison sentences, Butler said.

A recent ruling from the Supreme Court could mean more trials are coming.

In June, the high court decided that only juries, not judges, may lengthen prison terms beyond the maximum set out in state sentencing guidelines. The court will consider this fall whether federal judges also must change the way they sentence defendants. It's a major case because those judges hand out about 1,200 criminal sentences a week.

Butler said that the country's founders envisioned a system in which "little people decide disputes. It's power to the people."

Now he must tell idealistic law students that few will fulfill their dreams as courtroom lawyers. Instead, he said, many will "spend their lives in rooms of boxes" preparing for arbitration or settlement discussions.
 

                  ABA Set to Revise the Rules for Juries

Leonard Post
Staff Reporter
The National Law Journal
08-09-2004

Incoming American Bar Association President Robert J. Grey Jr. is starting his one-year tenure with a bang, launching a major revision of jury standards.

In what he has described as a "massive undertaking," the new and revised standards now being drafted will likely transform jurors from passive observers during the trial process to active participants-a direction that some states have already taken.

Among the provisions on the table:

Jurors questioning witnesses.

Jurors discussing evidence as a civil trial unfolds.

Return to jury unanimity and 12-person juries.

Expansions of challenges for cause and reductions in the number of peremptory challenges are also in the mix.

At his installation at the ABA's annual meeting in Atlanta on Aug. 9, Grey is expected to formally announce that the overhaul-called the "American Jury Initiative"-will improve standards before, during and after trials.

"We recognize that this is a massive undertaking, but we also recognize that it's time to do it," said Grey, a partner in the Richmond, Va., office of Hunton & Williams.

"Juries have evolved . . . .Through new technology, they receive, digest and use information in new ways," he said. "They are more sophisticated and that should be reflected in how jurors are allowed to handle information and arrive at a verdict."

The initiative has two parts-the American Jury Project and the American Jury Commission. The project will draft a set of standards and submit them to the House of Delegates at the ABA's midyear meeting in February. The commission will educate the public about the critical role a jury plays in the U.S. justice system and encourage people to serve.

21st century juries

The project met for the first time in Chicago on June 10 to begin its work, while Grey was still president-elect. Their first task was to overlay the best practice standards now found in three distinct areas of the ABA standards-civil litigation, criminal justice and judicial administration-and combine them.

"We're not reinventing the wheel," said inactive senior Washington Judge Gregory Mize, a project member. "We'll be incorporating some of the standards from these other documents."

In what has been described as animated, but cordial, discussions in Chicago, the two dozen project members began to freshen the existing standards and put new proposals on the table. Since that meeting, as many as 10 members at a time have met through series of conference calls.

"We're dragging the jury trial kicking and screaming into the 21st century," said Patricia Lee Refo, the project's chair, the outgoing chair of the ABA Section of Litigation and a partner in the Phoenix office of Snell & Wilmer.

"The idea is to take everything we know today about how people learn and process information, and apply it to the jury trial," Refo said. "There are still courtrooms in this country, for example, that don't let jurors take notes. Why in the world would we do that? None of us would listen to something of critical importance for days at a time without taking notes."

Project member and retired Maricopa County, Ariz., Superior Court Judge B. Michael Dann, who is a visiting fellow at the National Institute of Justice, has long fought for more active juror participation.

"The 10-year-juror reform movement has advocated a number of changes in the traditional formula, which assumed juror passivity," Dann said. "But active learners make better learners. The reforms introduce appropriate forms of juror activity that promote engagement and better learning and better juror satisfaction consistent with the parties' rights to a fair trial. Different ABA groups have endorsed some of these reforms, but no one had considered them as a package, but this group seems open-minded to doing so."

Every standard is slated for review. They range from juror note-taking, to the sizes of juries, to juror unanimity. Many reforms that have been adopted in some states have been proposed as new standards. These include: jurors being allowed to discuss evidence as a civil trial unfolds; jurors taking written jury instructions into deliberations, or taking jury books in that might include instructions, stipulations, brief summaries of the case by lawyers, and exhibits; and jurors taking notes, which is still forbidden in three states and discretionary in most others.

Expansion of challenges for cause and a reduction of the number of peremptory challenges allowed have been debated.

Grey, in response to a question at a National Center for State Courts-sponsored event in May in New York, acknowledged that peremptory challenges are often used "to get a biased jury." He was not, however, expressing an opinion about changing the ABA standards on such challenges, and he is not a project member.

And Mize doesn't expect much, if anything, will change regarding peremptory challenges, nor does he think it should.

"I don't think we'll have a recommendation that will do away with them," Mize said. "The traditional rationale has included a needed safeguard in the event a judge gets a challenge for cause wrong-a backup to correct that error. Judicial error in for-cause strikes is not going to go away."

Giving jurors straightforward answers to their questions during deliberations is among the standards advocated by project member Shari Seidman Diamond, a senior research fellow at the American Bar Foundation and a professor at Northwestern University School of Law.

"Every effort should be made to supply a prompt, complete and responsive answer," said Diamond, a leading empirical researcher on the jury process. "And that's more than they do now."

She noted that judges often merely reread an instruction, rather than answer specific questions about an instruction's meaning.

Unanimity: a hot issue

Mize said that jury unanimity is one of the more hotly debated subjects.

"There is overwhelming support for unanimity except in some contexts involving civil litigation," Mize said.

Jury voir dire is in the mix, too, and is a tougher one to resolve, Mize asserted. "An advocate is looking for someone who won't hurt, or is warmly disposed, to their client," he said. "A judge is looking for an efficient way to find fair and impartial jurors."

There will be a set of core values, a preface of black-letter principles to which everyone agrees, said the project's reporter, Steve Landsman, a professor at DePaul University College of Law in Chicago, whose job it is to boil down the committee's discussions and recommendations. He insisted that although there is now a 26-page working document, it is still in flux. Most of the members were expected to meet again in person yesterday in Atlanta.

As an author and a lawyer interested in the quality and the integrity of the system, Landsman is certain that juries of 12 are the gold standard.

They are "[B]etter in remembering the evidence and their decisions are much more likely to fall within the range of the acceptable or the appropriate, or whatever we want to call it," Landsman said. And "if you look at the data, what comes through loud and clear is that a smaller jury prevents the possibility of getting truly representative panels in a substantial number of cases-that's straight statistics."

Only about one-third of the 15 million people who are sent juror summonses actually report to a courthouse. Some are excused for financial and health reasons, others can't be found and others just don't respond, said project and commission member G. Thomas Munsterman, the director of the Center for Jury Studies of the National Center for State Courts.

The ABA aims to increase participation by educating the public about the importance of jury service and the role it plays in American democracy. That job falls to the Commission on the American Jury, which is led by an Honorary Chair, U.S. Supreme Court Justice Sandra Day O'Connor. New York State Chief Judge Judith S. Kaye is one of three co-chairs.

An ABA-commissioned Harris Poll released Aug. 9 [see box] will give some guidance to the commission that will first meet in September to plan its campaign.

"For most people, jury service is seen as an interruption in their personal lives; we want people to see it as we do, as a privilege of citizenship, as a chance to do something meaningful in people's lives," said Kaye, who reported to jury duty on Aug. 5.

"The ingeniousness of Robert's [Grey's] initiative is that there's a role for everybody-for companies not to be negative when their employees are called, for schools to educate our children about its importance, for judges, for lawyers . . . " Kaye said. "Our job will be to correct the negative perceptions about jury service that are wrong and to correct the problems when the negative perceptions are based on fact."

The "initiative" is designed to be an ongoing process that will survive his tenure, Grey said.

"We cannot accomplish it all in one short year," said project chair Refo. She cited "interpreters for jurors" as an example of something that won't be resolved this year.

"If you are not completely fluent in English and you're an American citizen, does that mean you should never be on jury?" asked Refo. "Some courts permit jurors who cannot hear. We're all a part of one justice system."

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