One hundred jury trials a year.
That was the goal that 22nd Judicial District Attorney Walter Reed pushed his prosecutors to reach, a point of pride with a DA who reveled in the get-tough nickname his parish acquired during his 30 years in office: St. Slammany.
But in the final year of Reed’s tenure as district attorney of St. Tammany and Washington parishes, as the embattled official dealt with a federal grand jury probe and the harsh glare of media scrutiny, his office failed for the first time to meet his self-imposed goal, logging 93 jury trials in 2014, according to records.
That was 18 fewer than in 2013, when Reed sent out a September memo warning his assistant district attorneys that they were in danger of falling short and urging them to step up their efforts. The office did hit the magic number that year, but there were questions about how the goal was reached.
The statistics showed the proportion of trials that ended with a guilty plea after jury selection took place shot up by almost half that year, to 32 percent, as Reed prodded his staff to reach the century mark.
While there are legitimate reasons a defendant can decide to plead guilty at that late juncture, the tactic also can be used to fluff up the number of trials, because the Louisiana Supreme Court counts any case in which a jury has been seated as a trial. Seating a jury when a plea deal already is in hand is known as a “pick-and-plea.”
Observers, including defense lawyers and a source in the courthouse, told The New Orleans Advocate last year that the tactic was employed repeatedly in 2013 so that Reed could achieve his goal of 100 jury trials.
That’s something that Reed’s successor, Warren Montgomery, says won’t happen on his watch. He calls it a waste of limited resources and, in some cases, an ethical violation.
The new data show that in Reed’s final year, the percentage of jury trials resolved with plea deals dropped to 25 percent, closer to the office’s historical norm than to the spike seen in 2013.
In Orleans and Jefferson parishes, fewer than one in five jury trials typically ends in a plea deal, and that also was a typical percentage in the 22nd Judicial District until the figure jumped up in 2013.
Of the 93 jury trials the office prosecuted last year, 22 ended when defendants pleaded guilty, with 19 of those pleading guilty as charged and three copping to a reduced charge. The numbers alone don’t reveal which of those cases, if any, might have been pick-and-pleas.
Once a jury is chosen and a witness has been called, the proceeding counts as a jury trial, no matter how quickly it ends. Defense attorneys point out that clients sometimes make a last-minute decision to plead after getting a glimpse of the jury. Sometimes, there are other reasons for last-minute negotiations.
The courthouse source said assistant district attorneys were told to put a halt to pick-and-pleas last year after The Advocate published a story on the practice in June. Reed also decided not to seek re-election not long thereafter, which may have made reaching the 100-trial benchmark less important to him.
Montgomery’s office, in response to a public records request from The Advocate, said it could not locate any past office memoranda referencing pick-and-pleas.
Some lawyers who do business in the 22nd Judicial District say they have noticed a change. John Lindner, head of the 22nd Judicial District Public Defender’s Office, said pick-and-pleas are not nearly as common now as they once were. While he recently had a defendant plead guilty after a jury was picked, he described that as a result of legitimate negotiations.
“I’m not seeing them. I think the story made a difference; it’s all but stopped,” he said.
Defense attorney Rachel Yazbeck said she has been involved in pick-and-pleas in the 22nd Judicial District over the years.
“They were all kind of doing it, but it’s diminished,” she said.
In some cases, Yazbeck said, she was offered a better deal if she and her client agreed to go along with a pick-and-plea. In other cases, when she was trying to get a last-minute deal, a prosecutor would want credit for a trial after having prepared for it and thus would seat a jury before agreeing to a deal.
While a defense attorney always wants the best possible deal for a client, Yazbeck said a pick-and-plea is a waste of citizens’ time and money. “It’s the jurors who are sitting there wasting an entire day,’’ she said.
Lindner said judges don’t like the subterfuge, either.
Montgomery said he is aware of the allegation that pick-and-pleas were once a common feature of the office he now oversees. Plea deals reduce the cost of bringing in witnesses, seating a jury and preparing for a trial, he said, but once a jury is seated, a prosecutor should not be willing to offer the same plea deal that was on the table beforehand.
As for offering a better deal to a defendant in return for agreeing to a pick-and-plea, Montgomery said that is unethical and an intentional waste of public resources.
“Any employee who does that will no longer work here,” he said.
Montgomery does not plan to demand 100 jury trials from his office. He called that number, or any number for that matter, arbitrary. “Why 100? Why not 98, or 103?’’ he asked.
He said he does believe in data-driven analysis but that he will look at a range of metrics to measure the performance of his office and of individual prosecutors.
Montgomery already can point to preliminary data that show a difference in his approach. In the first quarter of 2014, under Reed, nearly one in three jury trials ended with a defendant pleading guilty after jury selection — nine cases out of 28 trials, hewing closely to the 2013 trend. But a preliminary count for roughly the same time period this year shows that only one of the 14 jury trials held ended in a plea agreement after a jury was chosen. That case happened before Montgomery was sworn in, he said.
Rafael Goyeneche, president of the Metropolitan Crime Commission, has been critical in the past of Reed’s 100-trial benchmark and the high percentage of trials that ended in guilty pleas.
“Jury trials by themselves do not prove how effective or efficient a prosecutor’s office is,” he said, noting that they represent less than 5 percent of all cases closed in a jurisdiction.
He hailed the apparent drop in pick-and-pleas in St. Tammany, saying it appeared to be “a result of the public becoming aware of a game that was being played.”
Follow Sara Pagones on Twitter, @spagonesadvocat.