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Felony trials down, hung juries up
| Saturday, Oct 11 2008 1:42 PM
Last Updated: Monday, Oct 13 2008 7:43 AM
The total number of felony cases filed by the Kern County District Attorney’s office has risen steadily over the past decade as the population of the county has steadily grown.
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There’s an old joke among defense attorneys that illustrates the difference between how prosecutors and public defenders respond to tough cases.
“When a DA gets a dog, he can take it to the pound,” the saying goes. “When a public defender gets a dog, he can only smile and say, ‘Nice doggie, nice doggie.’”
After the DA’s office looks at the evidence connected to a case, the prosecution may choose not to file a criminal complaint, as in the decision made earlier this month to not charge a talk radio host with theft after he admitted to taking 15 election campaign signs.
The DA may also choose to file reduced charges or strike a plea deal to make the case go away.
Public defenders don’t have the luxury of choosing which cases to defend, said Kern County Public Defender Mark Arnold. That’s one reason their definition of a victory includes almost every outcome short of conviction.
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District Attorney Ed Jagels
Mark Arnold, Kern County public defender
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Yet during the same period, the number of felony trials prosecuted by the DA’s office has fallen dramatically.
In 1997, Kern County District Attorney Ed Jagels and his deputies prosecuted 343 felony cases in trial court. Five years later, in 2002, that number had dropped to 242.
By last year, the total number of felony trials in Kern County had shrunk to 130, 62 percent fewer than in 1997, according to statistics compiled by Jagels’ office. In addition, findings of guilt by jurors had fallen significantly as well — from 75.2 percent in 2002 to 61.5 percent last year. During the same period, the percentage of hung juries nearly doubled.
DA AND DEFENDER AGREE
Jagels noted that the number of felony trials has rebounded a bit this year, with 152 already held through the end of September. Still, he acknowledged that significant changes have taken place, resulting in fewer trials — and a lower percentage of victories at trial, at least for the time being.
Jagels and Mark Arnold, Jagels’ counterpart at the Kern County Public Defender’s Office, agree at least in part, on the primary cause of the declining trial numbers.
“I’m kind of surprised we’re in complete agreement,” Jagels said during an interview in his office last week.
“The number of jury trials is dictated almost exclusively by judicial philosophy,” the DA said.
In other words, Arnold said in a separate interview, the approach taken by the presiding judge, a position that changes over time in Kern County Superior Court, can greatly influence which cases go to trial and which do not.
Compared to a decade ago, presiding judges in recent years have been more intent on resolving cases through plea agreements to prevent the huge backlogs that courts in some other counties have experienced, Jagels said.
And that’s pretty much where their agreement ended.
EVOLUTION OF OR ROAD BLOCK TO JUSTICE?
Arnold views the courthouse evolution as generally positive. The vast majority of cases must be resolved long before trial, he said. It’s much less expensive for taxpayers and it usually serves justice, he added.
But Jagels said he’s concerned that judges are undercutting the position of his deputy prosecutors by “plea bargaining with the defendant for less than we wanted,” he said. “It’s very common now.”
In fact, he said, it’s one of the reasons the win/loss ratio has slipped.
“There’s no incentive for the defense to plead early,” Jagels said. Not when trial judges will accept deals previously rejected by the defense — or forge plea deals with the defense that are opposed by the prosecutor.
“When judges plead out strong cases for less (punishment for the defendant), we go to trial with a weaker class of cases,” Jagels said.
But Arnold noted that it’s not the judge’s job to work with the prosecutor to obtain the sentence desired by the DA.
“It’s the duty of the judge to fix the appropriate sentence in every case,” Arnold said. “Neither the prosecution nor the defense ever sentence an individual.”
Arnold estimated that in Riverside County, some 1,200 felony cases are pending trial because of the rigidity of both prosecution and defense positions.
“An enormous backlog, I promise you, will cause grievous injustice,” he said.