THE VANISHING TRIAL

An attorney recalls his courtroom experiences and laments the disappearance of criminal trials from the federal justice system.

There is at least one thing that a visitor to a federal courtroom is now very unlikely to see—a jury trial. Between 1990 and 2010, the number of criminal cases decided in the United States federal courts by a jury dwindled from 9.2% of all cases to only 2.1%. For veteran trial lawyer and debut author Katzberg, the “troubling reality” of the “vanishing trial” has implications not only for the criminal justice system, but also for American democracy. If the average citizen is no longer able to serve as a juror and “the effectiveness of the criminal defense function enshrined in the U.S. Constitution is meaningfully diminished, where does that leave the rule of law?” he asks in this provocative, lively combination of memoir and polemic that may have limited appeal to readers outside the legal profession. Katzberg is a well-qualified guide, having tried cases as both an assistant U.S. attorney in New York and a defense lawyer. The memoir portion of his book is laced with vivid episodes and vignettes from the “world we are slowly but surely losing.” “When done at the highest levels, trial work is performance art in the purest sense of the term,” he writes. He recalls such “old school” practitioners as the lawyer Jerry Lewis (“not the legendary comedian”), who “fearlessly used his distinct personality to dominate the courtroom” and would start cross-examinations by asking in a Brooklyn accent: “Are you a truteful poyson?” Katzberg points to two culprits in the demise of the jury trial—federal sentencing guidelines that have caused a steep decline in the number of defendants willing to risk a trial and technological advances that have tipped the evidentiary scales even more toward prosecutors. The author doesn’t address the substantial costs to taxpayers of jury trials—or whether America should follow the lead of countries like Switzerland and replace juries with judicial panels. But it’s hard to quarrel with his warning that “like the loss of the oceans’ coral reefs, the ongoing disappearance of federal criminal trials signals an increasing imbalance in our nation’s criminal justice system that must not be ignored.”

Colorful incidents and anecdotes effectively capture the performance art of trial lawyering.