Defendants are less likely to be judged by a jury of their peers than ever before. And yet more than the defendants are getting scrutinized with this trend.

Lawyers and judges have long been bemoaning, or at least aware, of the decline in jury trials over the past couple years. The number in some areas of the country has dropped by as much as 50 percent, and many don’t see that slowing down. And with this cornerstone of American politics seemingly petering out, more legal officials are getting under the magnifying glass.

Judges are keeping their docks full, of course; there’s still plenty of civil and criminal cases at some point in the process to keep them busy. But many of those will be resolved without a trial, and that issue is not going unnoticed by the judiciary. In a New York Times article, many judges shared how—despite lengthy and storied careers—there was a dearth of criminal cases that involved juries on their docket. Nationwide, the number of federal defendants has grown almost 20,000 since 1997, while the percentage of those convicted through jury trials has almost halved.

Which is affecting legal workers as well: Court stenographers who count on transcript pages for their income can’t make ends meet, young clerk for Southern District judges sometimes depart without ever working a single trial. And those with cases in the courthouse may find that even when the case against them seems weak, the jigsaw of congressional sentencing guidelines and increased use of mandatory minimum sentences sufficiently discourages defendants from going to trial where they may face harsher sentences than if they pleaded out.

Photo Credit: mikecogh cc
Photo Credit: mikecogh cc

“In a world where 97% of sentenced defendants plead guilty pursuant to agreements that require such pleas to occur before the prosecutor prepares the case for trial, the sharpened focus on the offense and the defendant that results from such trial preparation rarely occurs,” said Former Judge John Gleeson, who in March stepped down from the federal bench in Brooklyn to enter private practice, in a 2013 court opinion. “The thin presentation needed for indictment is hardly ever subjected to closer scrutiny by prosecutors, defense counsel, judges or juries. The entire system loses an edge, and I have no doubt that the quality of justice in our courthouses has suffered as a result.”

Which—while surely of note to the lawyers, judiciary, and other legal personnel who are servicing them—have defendants and the public worried.

Perhaps that’s why judicial and legal ethics have come under such examination recently. Now that you’re less likely to be judged by your peers and more likely to have a bench decision or a plea deal, people are paying more attention to the tactics that would dictate their defense. Justice Ruth Bader Ginsburg and others have started pushing back on implied judicial objectivity and what that means in modern society to mixed results. The Alabama Chief Justice who instructed judges to not follow Obergefell is now facing ethics charges. And last year a Louisville judge who took to Facebook to post about an alleged racial slight in his courtroom by a prosecutor, has been justifying his social media use ever since. While he had already temporarily stepped down, Monday saw him accept a 90-day suspension without pay. Some experts say his cause was worthy, and that a decision against him could have a chilling effect on judges.

Do we want judges to be cloistered in their ivory towers, closed off from the very public that they serve and the issues that are of concern to the community?” John G. Browning, an attorney who writes about judges using social media said to the AP. “Or do we allow them to speak publicly on some issues that may very well have some bearing?”

And lawyers aren’t excluded from this. Just last week the ABA found itself running up against those who would discourage them from expanding their model rules of professional conduct with an amendment that would prohibit harassment and discrimination. According to critics, even basic language such as that would affect the ability of lawyers to engage in free speech, religious exercise and other First Amendment rights. As one opinion writer wrote in Bloomberg, the line in the sand isn’t so clear for lawyers to rein themselves in:

It’s so important that it’s in the preamble to the ABA’s model rules of professional conduct: “As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”

Once the principle of zealous advocacy is admitted, it raises a question: How zealous is too zealous? Lawyers are not supposed to lie in support of their clients, nor introduce false testimony. Lawyers are always officers of the court, and shouldn’t make legal arguments that they know to be false.

But when it comes to manipulating the rules and shaping the context in which the truth is created, many lawyers think that zealous advocacy not only permits but also requires a certain degree of aggressiveness.

Whether that’s right or not, it’s certainly caused quite a stir for the ABA. Lawyers—and judges—attempts to push the boundaries of what they can and can’t do won’t go unnoticed by the general public. After all, it’s their defense at stake.