Last September, St. Tammany Parish District Attorney Walter Reed was so worried his office wasn’t going to reach his goal of 100 jury trials for the year that he fired off a memo urging his prosecutors to put up some better stats.
“It is important to me to reach our long-standing numbers,” the note — which was obtained through a public-records request — said in part. “I want each of you to commit to completing your remaining trial dockets with at least three jury trials.”
His troops got the message. At the end of the year, Reed put out another memo, this one saying the office’s 13 prosecutors had exceeded the goal, tallying 111 jury trials for the year, a few more than the office posted the prior year.
Some observers say the 100-trial quota is a foolish yardstick — and worse, that it encourages prosecutors to engage in some sleight-of-hand to boost their bottom line. While only a handful of lawyers will go on the record about it, many attorneys who practice in the 22nd Judicial District say so-called “pick-and-pleas” are often used to goose the stats.
Under the rules laid out by the state Supreme Court, any case in which a jury has been sworn in and a witness has been called to the stand counts as a jury trial. In a classic pick-and-plea, the District Attorney’s Office announces a plea deal shortly after those two things have happened.
“I didn’t do any last year, but I’ve done them in the past,” defense lawyer Ernie Barrow said. “The (assistant district attorneys) are under a lot of pressure, especially toward the end of the year, to get jury trial credits so they can make their quota. That’s pretty well-known.”
John Lindner, who heads the Public Defender’s Office for the 22nd Judicial District Court, said his office is completely at the mercy of the district attorney when it comes to the timing of a deal.
“Do I think there are cases settled after trial commences that should have been settled before trial? Yes,” Lindner said. “I think there are times when the DA should have made the offer before the trial begins. But if an offer is made after trial begins, and it’s beneficial to my client, we’ll take the deal.”
There are, of course, plenty of legitimate reasons for a plea to occur after a jury has been sworn in, and every jurisdiction sees a fair number of midtrial plea deals. It’s not uncommon for a defendant to opt for a plea deal when he thinks jury selection has gone poorly. In other cases, one side or the other loses a key pretrial motion and suddenly decides a deal is the right move.
But such late pleas are significantly more common in the 22nd Judicial District than in New Orleans or Jefferson, statistics show — particularly last year, when Reed was leaning on his assistants to increase their trial numbers. In Orleans and Jefferson, fewer than one in five jury trials ended with a plea deal, whereas in the 22nd JDC — which includes St. Tammany and Washington parishes — nearly one in three ended that way.
Tactic hard to prove
Proving a plea deal was a pick-and-plea is nearly impossible because no one wants to admit they engaged in an underhanded maneuver. A handful of defense attorneys who spoke with The New Orleans Advocate said the practice is relatively common in St. Tammany, and some admitted having gone along with it, but none wanted to identify a particular case on the record.
Those attorneys said they participated in a pick-and-plea because it was good for their client. Typically, the prosecutor makes clear that a certain deal is contingent on playing along, so the defendant agrees to do so. In some cases, lawyers said, prosecutors threatened to “multiple bill” the defendant if they didn’t play along — that is, seek to have him sentenced as a habitual criminal.
One could argue that there’s nothing wrong with a prosecutor picking a jury and then offering a plea deal. There’s no evidence, for instance, that justice is perverted in the process. But courthouse observers say it’s inherently dishonest, and worse, it has the effect of wasting untold hours of citizens being screened for a jury that is never going to be asked to deliberate.
In some sections of the 22nd JDC, the number of jury trials settled before a verdict was notably high. For instance, in Section H, there were 10 jury trials last year, eight of which ended in plea deals. That section is overseen by Judge Allison Penzato, who was elected to the bench in 2008 with Reed’s support. The prosecutor in the section is Julie Knight, who for the last few years in a row has had a high proportion of jury trials end in plea deals. Knight did not return a call seeking comment.
In a letter to The New Orleans Advocate that accompanied Reed’s memo urging on his subordinates, the DA defended his office’s emphasis on reaching the 100-trial threshold every year.
Reed’s spokesman, Rick Wood, meanwhile, denied that the office has ever engaged in any subterfuge to meet those goals.
“The defendant in consultation with his criminal defense attorney can enter a plea of guilty to the court at any time they choose, before or during trial,” Wood said by email. “The defendant and his lawyer must make a decision regarding his best interest.”
Adrienne Stroble, the court administrator for the 22nd Judicial District, returned a phone message left for Penzato.
She acknowledged that the term “pick-and-plea” is a familiar one in the district, but she said the judges try hard to guard against any monkey business.
“The judges here are unconcerned with anyone else’s stats, and they’re very aware of the cost of empaneling juries,” Stroble said. “From the court’s standpoint, they are unaware if this is going on. They are looking only to promote justice, whether that means doing the whole trial or accepting a plea agreement” partway through.
“We try to be very sensitive to the use of jurors’ time,” she said. “We want them to be productive citizens, out there working instead of sitting in here.”
It’s hard to measure the exact cost of empaneling a jury that might not be needed. Taxpayers cover the cost of jurors’ meals and a nominal per-diem fee, but those costs are relatively small. The larger and harder-to-measure cost is that of the loss of jurors’ time, for their employers and themselves.
Rafael Goyeneche, president of the watchdog Metropolitan Crime Commission, thinks the high number of jury trials in the 22nd JDC that resulted in plea deals last year raises a red flag.
“There may be a few cases where the defendant agrees to plead guilty at trial, but that’s going to be the exception rather than the rule,” he said. “If there is a heavy percentage of those, there’s a strong potential that the staff is seeking a stat as opposed to it being a legitimate trial that induced a plea. If they’re resorting to pick-and-pleas, that reflects on a lack of integrity ... that they’re artificially manipulating statistics to gain some perceived better perception from the public.”
More broadly, Goyeneche argues that Reed’s focus on the 100-trial benchmark is misguided.
“The number of trials in St. Tammany Parish is important only because the boss says it’s important,” Goyeneche said. “I believe there are far more important metrics for success than the number of jury trials.”
He noted that, in most jurisdictions, perhaps 1 percent of all criminal cases end in jury trials. That’s basically true also in the 22nd JDC, where in 2012, criminal charges were filed in 7,493 cases, of which 106, or 1.4 percent, went to trial, according to statistics compiled by the Louisiana Supreme Court. Of the state’s 43 judicial districts, only one — Orleans — recorded a higher number of jury trials that year.
“If you want to know how effective a prosecutor’s office is, the metric we apply is felony arrests to felony convictions,” Goyeneche said. “How many felony cases were presented to the district attorney’s office and what percentage were declined? Of the cases accepted as felonies, what percentage resulted in a guilty plea or guilty verdict?”
In high-functioning jurisdictions, Goyeneche said, the cases that go to trial are typically the highest-stakes cases, such as murders, where the state is unwilling to offer an attractive deal.
The crime commission has studied those metrics in New Orleans but has not undertaken such an effort in the 22nd JDC.
A public-records request sent to Reed’s office May 26 seeking internal memos or other records documenting those numbers has not been satisfied.
Several years ago, Goyeneche said, Orleans Parish District Attorney Leon Cannizzaro unveiled a renewed emphasis on conducting jury trials, challenging the judges of Criminal District Court to hold at least 600 trials a year.
That number was widely seen as implausible, but more to the point, Goyeneche said, it was the wrong statistic to focus on.
In 2011, the office conducted 321 jury trials, a huge jump from the previous year, but the results were spotty. The overall conviction rate was just 57 percent, potentially sending a message to defendants that they might as well roll the dice and go to trial. Members of the defense bar, meanwhile, suggested that some of Cannizzaro’s subordinates had resorted to pick-and-pleas in some cases to plump their statistics, though Cannizzaro vehemently denied it.
The next year, Cannizzaro scaled back the push for jury trials, and it has become gradually much less of a focus for the office. In 2013, Cannizzaro’s office held only 126 jury trials, a drop of 61 percent from two years earlier. But the results were much stronger — an overall conviction rate of 76 percent, with most of the convicted defendants found guilty as charged.
“The district attorney in Orleans Parish tried doing it one way and recognized it wasn’t practical, and he reassessed his strategies and adjusted,” Goyeneche said.
The results speak for themselves, he said.
The Jefferson Parish District Attorney’s Office tends to handle about 100 jury trials each year, but District Attorney Paul Connick has never put a particular emphasis on exceeding that threshold. In 2010, for instance, the office saw 108 trials. There were 109 the next year, 75 in 2012 and 87 last year.
The number of trials that end in plea deals is relatively low — an average of just 13 percent over that span. That’s about half the average in the 22nd JDC.
Last October, having heard of Reed’s memo urging his subordinates to make the 100-trial threshold, two public defenders in the 22nd JDC filed a motion asking a judge to recuse Reed’s office from the prosecution of their client, Tracy McMooain.
McMooain was charged with felony drug possession, and the lawyers, Amanda Trosclair and Oliver Carriere, said Reed’s office had retracted a proposed plea deal in an effort to force him to go to trial.
The DA’s Office was “using its power to get their trial numbers, not justice,” the public defenders said, according to nola.com.
Judge William Burris said the memo was insufficient grounds to force the recusal of the DA’s Office and denied the motion. In the end, the case did not turn into a pick-and-plea: McMooain pleaded guilty, but instead of the 10 years that had been on the table, he got 22.
Editor’s note: This story was changed on June 1 to reflect that Tracy McMooain’s guilty plea was not entered pursuant to a plea bargain.
Follow Gordon Russell on Twitter, @gordonrussell1.