Boston Globe

By Thanassis Cambanis, Globe Staff, 2/1/2004

The number of criminal trials in federal court in Massachusetts has nearly doubled since Michael Sullivan took over as US attorney in 2001, even as the number of trials across the nation has plummeted.

Judges, lawyers, and prosecutors have decried the "death of the jury trial" in federal courts, where 1 percent of all criminal cases go to jury trial. But in Massachusetts, Sullivan's hard-charging prosecutorial tactics and aversion to plea bargaining have reversed the trend, pushing an increasing number of criminal defendants to trial.

"There's a clear policy against charge bargaining and a clear policy against plea bargaining," Sullivan said. "Hold offenders accountable for their conduct: That's the bottom-line philosophy."

In 1999, under Sullivan's predecessor Donald K. Stern, there were 22 criminal jury trials in the federal district of Massachusetts -- which includes federal courts in Boston, Worcester, and Springfield -- amounting to 4.2 percent of all the criminal defendants whose cases were resolved that year.

But in 2003, there were 47 criminal jury trials, representing 7 percent of the total number of criminal defendants whose cases were resolved, which increased by nearly 30 percent over that four-year period.

Federal courtrooms -- unlike state courts, and contrary to the public image fed by trial dramas on television and in the movies -- very rarely see jury trials. And within the past 40 years it's become even rarer.

The number of criminal trials nationwide has fallen from 5,000 to 3,500 per year, even as the number of criminal cases has more than doubled.

The resurgence of jury trials in Massachusetts is a byproduct of a critical policy shift Sullivan enacted after taking over as the Commonwealth's top federal prosecutor in the fall of 2001, according to lawyers, prosecutors, and judges.

Why, Sullivan asked, should criminals be rewarded with lesser sentences if they plead guilty? He ordered his prosecutors to avoid "charge bargaining," a negotiating process in which prosecutors agree to drop some criminal charges in exchange for a guilty plea. "We're not giving any significant benefits to pleading," Sullivan said.

Instead, he has instructed his prosecutors to charge every provable offense -- raising the probable sentence -- and approach every case on the assumption that it will go to trial.

The move has created a sea change in the Massachusetts federal district, angering some judges and defense lawyers who accuse his office of piling on charges so defendants face decades-long sentences in federal prisons.

However, even critics of his strategy applaud the result: a brisk increase in the number of courtroom trials, which allows for a more open resolution than a plea deal negotiated in secret.

"It's a pleasure to have trials in federal court," said defense lawyer John McBride. "You get a fair trial."

In state courts, where prosecutors accept a high volume of cases referred by local police, more trials result in acquittals and plea bargains.

Not so in federal court, where prosecutors cherry-pick the strongest cases from long investigations conducted by federal law enforcement agencies.

Because only the cases with the most compelling evidence ever make it to the indictment phase, about 95 percent of criminal defendants in federal court end up pleading guilty or being convicted at trial.

For defense lawyers like McBride, the decision whether to fight a case at trial or negotiate a guilty plea depends on a cost-benefit analysis.

If prosecutors are willing to adjust the charges, or approve a downward departure from the strict federal sentencing guidelines, it makes sense for a defendant to plead guilty and cut years off his or her sentence.

That happens less and less frequently under Sullivan, however.

"Sullivan has become much tougher," McBride said. "The penalties have become so severe, that defendants are more willing to take their chances with a jury of their peers."

Chief US District Judge William G. Young has made restoring the jury trial something of a personal cause. "Jury trials are the most stunning experiment in direct democracy," Young said. "The American jury system is dying."

And as jury trials become a vanishing phenomenon, he argues, American democracy will be fundamentally weakened.

"This is the most profound shift in our legal institutions in my lifetime and -- most remarkable of all -- it has taken place without engaging any broad public interest whatsoever," Young wrote in an open letter to his colleagues on the bench last summer.

Federal sentencing guidelines that took effect in 1988 drastically narrow judges' discretion. The guidelines also encourage criminal defendants to plead guilty rather than go to trial, by shaving time off their sentences for "acceptance of responsibility."

Sullivan's aggressive approach has upended that calculus for many defendants, however; if they are facing decades-long sentences, and are less likely to get time off for cooperating with prosecutors or pleading early in a case, they are more likely to take their chances before a jury.

"To the extent that there is aggressive charging, and a mandate to make it harder to negotiate, some defendants are going to decide they'd rather take the chances and go to trial," said Harvard law professor Robert Mnookin, who has studied the decline of jury trials in the federal system.

"The perceived differential between what the possible outcomes are if the defendant is tried and convicted and faces guidelines, and what a defendant can get if he pleas will drive that decision," Mnookin said.

Owen Walker, the chief federal defender in Massachusetts, doesn't mind the increase in criminal trials, but worries about the underlying prosecutorial strategy that is driving it.

Criminal defendants already facing "Draconian" prison terms under federal sentencing guidelines are now routinely ending up with sentences five to 10 years longer, Walker said.

"It's all part of the government's wanting to get the highest sentence," Walker said. "It's very short-sighted."

Thanassis Cambanis can be reached at tcambanis@globe.com.