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April 2013 , Page 04 

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Letter to the Editor: What is the percentage of federal criminal defendants who are not convicted? Why are so many cases dismissed?

By Robert L. Weinberg

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The Wall Street Journal and the Washington Post recently presented some sobering statistics on the high rate of uncontested federal convictions. The editorial in the Post (Oct. 4, 2012) both copied and adopted the Journal’s figures: “The Wall Street Journal reported recently that 97 percent of cases the Justice Department prosecuted last year ended with guilty pleas.”

Both papers were misreading Justice Kennedy’s opinion for the Court in Missouri v. Frye, 132 S. Ct. 1399 (2012). The opinion observed that guilty pleas account for “97 percent of federal convictions,” not “97 percent of cases the Justice Department prosecuted,” as the Post and Journal said.

The Journal’s statistic overlooks the substantial number of cases that are not prosecuted to conviction at all. The Bureau of Justice Statistics Sourcebook for 2009, to which Justice Kennedy’s opinion cites for the guilty plea figures, shows that guilty pleas were secured in only about 88 percent of the cases disposed of in 2009 (83,707 out of 95,206), not 97 percent. In the remaining 12 percent of the federal prosecutions, the Sourcebook’s Table shows about 3 percent of the total number of defendants were found guilty at a trial, and about one-half of 1 percent won acquittals at trial from the jury or the court. That leaves about 8½ percent of the cases that are listed in the Statistical Table as Dismissed.

But the Department of Justice’s published statistics give no breakdown of the grounds on which these numerous defendants (about 1 in every 12 charged, or 8,408 of the 95,206 dispositions in 2009) secured dismissal of their cases.

It would be of great interest, especially to the defense bar, to have a breakdown of the large “case dismissed” category. For example, among the 8,408 dismissals in 2009, what number or percentage of the dismissals were secured through a successful defense motion to dismiss the indictment for (1) failure to charge an offense against the United States, (2) discriminatory or otherwise improper grand jury selection practices, (3) violation of grand jury procedural rules, (4) prosecutorial misconduct, or (5) other defects in the indictment or prosecution? And how many of the cases were dismissed on motion of the government under Fed. Rule Crim. P. 48 because (1) the prosecution believed it lacked sufficient credible evidence to win a conviction at trial, (2) defense counsel presented persuasive argument, or new exculpatory or favorable evidence, to the counsel for the government, (3) the government moved to dismiss the indictment pursuant to a plea bargain, or in return for supplying testimony against others, or (4) the defendant died or had otherwise become unavailable?

The Administrative Office of the U.S. Courts apparently compiles only the number of dismissals, not the supporting grounds.

To compile the suggested breakdown would probably require the Administrative Office to perform a laborious review of the pleadings files in the dismissed cases to find the supporting grounds. In some instances the Administrative Office might need to seek out and review internal memoranda of each U.S. Attorney’s Office that would show recommendations for dismissals by line prosecutors and approvals of their superiors. Or the Administrative Office might request that each U.S. Attorney’s Office provide that information to it.

Perhaps the Administrative Office could select 2009 — the year whose statistics were used by the Supreme Court in Frye — to conduct a pilot study of the records showing the reasons for each of the 8,408 dismissals that year. Or possibly a foundation concerned with criminal justice could fund such a study. I would even suggest that NACDL’s leadership consider submitting a request to the Administrative Office to compile the relevant information on dismissals.

The “vanishing trial” is undermining our traditional adversary system of justice. (See John Keker’s article, The Advent of the Vanishing Trial: Why Trials Matter, in the September-October 2005 issue of The Champion.) It is some comfort to see that it is 12 in 100 defendants — not merely 3 in 100 — who do not waive their constitutional right to trial by entering guilty pleas.

Robert L. Weinberg
Adjunct Professor, George Washington University School of Law
Visiting Lecturer, University of Virginia Law School

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