SUNDAY EDITION | Concerns grow as jury trials disappear in Kentucky

LOUISVILLE, Ky., (WDRB) – The walls of defense attorney Steve Romines’ office are covered with framed news stories and pictures, a highlight reel of some of the most famous jury trials in Kentucky over the last two decades.

Two men charged with murder for allegedly killing another man and burying him in their basement.

A man impersonating a police officer who called fast-food restaurants and persuaded employees to strip-search and humiliate one another.

A Jefferson County jail officer accused of murdering an inmate by stomping on his head.

“I used to try 12-15 cases a year,” Romines said in an interview. “I’ll try maybe four now.”

That’s because jury trials -- the iconic American right to have innocence or guilt be determined by a group of peers – are vanishing at an alarming rate in Kentucky and across the country.

In the last decade, the number of felony jury trials in Kentucky has fallen more than 60 percent, from 734 in 2005 to 289 in 2015, according to the state Administrative Office of the Courts.

The drop is not isolated to criminal cases. Civil jury trials also fell 60 percent across Kentucky during the same time period, from 292 to 118.

The decline is even more significant in federal court where the number of trials in U.S. District Court in Louisville fell from 27 ten years ago to only three so far this year.

All of this comes while the number of total cases has stayed about the same.

Chief Jefferson Circuit Court Judge Charlie Cunningham joked that while people refer to him as a trial judge, he says a more fitting title now would be “pre-trial judge,” as most disputes now are settled well before a jury hears evidence.

Cunningham said he had only four to five trials last year and maybe three so far in 2016, far less than in past years.

“It’s been absolutely bizarre,” he said.

Jefferson County figures show criminal trials have dropped from 115 in 2005 to 54 last year, a 53 percent decrease in the last decade. The civil trials dropped 60 percent, from 73 to 29.

Some attorneys, judges and legal experts, both locally and nationally, see the plummeting trial numbers as an ominous trend that allows justice to be dispensed behind closed doors.

“It’s really a bad thing because win or lose, the input of citizens is a critical check on the government,” said Louisville defense attorney Ted Shouse. “It’s absolutely critical for the citizenry to ride heard on the government. One way they do this” is through jury trials.

Trials also are used as a standard for negotiating criminal plea bargains and civil lawsuits, a benchmark of what a case is worth either in prison years or money, said Jefferson Commonwealth’s Attorney Tom Wine.

“Whether it’s a civil or criminal case, whether you are a prosecutor or criminal defense lawyer, you like to talk to your client or victim and decide ‘this is what I think a jury is going to do because this is what a jury has done in the past,’” Wine said. “Not having those jury verdicts can be a disadvantage.”

In a talk before state judges a few years ago, Kentucky Chief Justice John Minton spoke about how the lack of trials affects the development and shaping of laws because of fewer appeals cases.

And it’s a disadvantage for young attorneys, creating a new generation of lawyers who are not getting trial experience.

 “I don’t think it bodes well for the future of the remarkable advocates we have today in Kentucky,” said longtime civil attorney Anne Oldfather. “Kentucky has always had marvelous trial lawyers. It’s just hard to get those same kinds of skills now.”

"Roll of the dice"

This trend is not new, especially in civil cases, as a national decline in jury trials has been noted since at least the mid 1980s.

Legal experts have cited many factors, including harsher possible sentences in both federal and state courts, prompting more plea bargains; the growing caseloads for public defenders who handle the majority of cases; and more deference by citizens to police in the wake of the September 2001 terror attacks.

“The love of law enforcement is a strong thing,” Romines said. “Almost by definition, every criminal trial you have to say law enforcement is wrong. You have to question or attack the investigation and a lot of jurors resent the fact that you attack law enforcement.”

Romines, among others, argues that defendants are more “risk averse” because sentencing guidelines have gotten tougher, making it a dangerous “roll of the dice” to go to trial.

Ed Monahan, head of the state’s Department of Public Advocacy, said that for every defendant with a felony conviction, prosecutors can add a charge of “persistent felony offender” to new cases, adding a stiffer penalty if convicted and inflating the “prosecutor’s already extraordinary power over punishment.”

And Monahan agreed that public defenders, “who are the pack mules of the system, have workloads that impair their ability to try cases."

Robert Lawson, a University of Kentucky law professor who helped write the state's 1974 penal code, wrote in a 2009 Kentucky Law Journal article  that “tough-on-crime measures,” such as the persistent felony offender charge, had given prosecutors the upper hand.

“An adversarial balance that once dominated the criminal justice system has been victimized by unprecedented, unguided, and largely unchecked prosecutorial discretion to dictate sentences, evidenced most clearly by the ever increasing percentage of cases resolved by guilty plea and a virtual disappearance of the criminal trial, a troubling and largely unexplored phenomenon,” Lawson wrote.

In addition, the quality of evidence in criminal cases is often more definitive as a result of police body cameras, pervasive security surveillance video, iPhone recordings and advancements in DNA testing.

“All those things that make for a better case make it less likely that it will go to trial,” Wine said. “So what you end up with is those cases that don’t have that type of proof that go to trial.”

In civil court, there are fewer trials because more cases are being settled through mediation and arbitration. Mediation allows both sides to come to an agreement with the help of a mediator – typically a retired judge – without going through the expensive process of taking a case in front of a jury.

“I refer every civil case to mediation,” Jefferson Circuit Court Judge Barry Willett said. “It saves time, energy and particularly money.”

Shannon Ragland is publisher of the Kentucky Trial Court review, which documents the verdict in most civil jury verdicts in the state for subscribers, mostly lawyers. Attorneys considering settling cases often turn to Ragland’s publication to see what value juries have for every conceivable type of lawsuit.

Ragland said the number of civil trials in Kentucky fell from 340 around the time he started in 1999 to 86 last year, a 75 percent decrease.

“I publish this in six states and it’s pretty much the same,” he said. And he agreed that mediation and arbitration are responsible for a chunk of that drop, but it doesn’t explain why the numbers have been consistently falling since the mid-1980s.

“I don’t know that the answer is clear,” he said. “This is how I make a living and I’m not sure.”

One thing that is sure, Romines said, is that there is no sign the trend is going to change.

“The right to a jury trial is so fundamental to the criminal justice system,” he said. “It’s disappearing and when it’s gone you can’t get it back.”

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