Frank Parlato
The Flaws of Federal Trials
A System Designed to Deter Trials
The federal judiciary does not focus on fairness in jury trials. Instead, it emphasizes deterring defendants from proceeding to trial. And keeping up the appearance of the legal fiction that the judiciary is in any way concerned with justice.
In this series, “Designed to Convict,” I will demonstrate how the U.S. judiciary, for its convenience in its collegial role as “good fellows” with the executive branch, has redesigned its role over the last few decades to heavily favor the prosecution over the people.
Ceding
Power to the Prosecution
In so doing, the judiciary has ceded 90 percent of its authority to the executive branch by making the prosecutor the judge and jury in 98 percent of all cases. It has reduced its role to pretrial denial of due process to encourage trial deterrence and post conviction to sentencing guideline calculations. Less than two percent of federal indictments go to trial.
By making trials unfair to the defense, the judiciary makes its own job vastly easier. The prosecutor benefits by guaranteed high conviction rates. Ironically, the defense attorneys also benefit by trial avoidance. Their role shifts from defending their client as to guilt or innocence to sentencing advocacy, first with the prosecutor and then with the permission of the prosecutor, with the judge. Since trials take up an inordinate amount of time in preparation and in the courtroom, routine avoidance of trials allows the defense attorney to have many more clients than they would otherwise represent. Lastly, it benefits the entire industry, allowing for many more Americans to be imprisoned than if defendants, especially innocent ones, demanded trials.
The whole purpose of making trials unfair is to allow the innocent to join the guilty in prison.
Trials Are Fundamentally Unfair
Most trial protocols that favor the prosecution and encourage plea deals could be easily corrected. Some of these protocols are remnants of medieval times when defendants were placed in cages during their trials. While the cages are gone, few in the system want to make federal trials fair. That’s a legal fiction.
Psychopathy in the Justice System
Almost everyone involved in the justice-incarceration business seeks to maintain this system. While there are notable exceptions, the justice-incarceration business is populated mainly with psychopaths. What else could you call prosecutors and judges who prioritize convictions over justice, even if it means sentencing innocent Americans to prison, rather than disrupting the profit-driven business model?
The Vanishing Trial
Plea Bargains: The Royal Road to Convictions
A fair trial is rare. By making trials decidedly unfair for defendants, the system pressures them to negotiate their conviction through plea deals. The plea deal is the most efficient way to expand the supply of the industry’s sole commodity: incarcerated Americans. Trials themselves have become mere loss leaders, designed to perpetuate the fiction that the system is fair. The occasional dismissal or something far more rare, the acquittal at trial, is actually good for business for it gives an appearance that only the guilty suffer, which is a legal fiction.
When a federal case goes to trial, the odds are stacked in favor of the prosecution. The rules of evidence favor them, and the federal criminal code is said to be the “prosecutor’s pen.”
Ninety percent of federal cases end with plea bargains.
A Lucrative Industry
Plea bargains benefit everyone in the system—prosecutors, defense attorneys, and judges—except for the incarcerated individuals who become the system’s product. Plea bargains are a godsend to the industry and benefit everyone except the commodity sold – the incarcerated American.
This simple business statement is not meant to imply that the criminal justice system never delivers just outcomes or that dangerous individuals don’t deserve punishment. The point is that that is not the goal. The goal is to profit from the placement of the living commodity in high-cost, low-quality, fixed-term housing from which the commodity has no option to escape.
Now, in a series of posts, let us explore the legal fiction of the fair trial. I will prove my points with logic and avoid engaging in baby twaddle comprehensible to poorly educated, low-information Americans who speak of the Constitution or due process as something other than legal fiction meant to deceive them.
The Courtroom Setup
An Arrangement Rooted in Bias
Historically, courtroom layouts have been designed to show deference to the prosecution. Federal courtrooms are arranged to exert a gravitational pull toward prosecutors. The prosecution table is closest to the jury, typically within “social distance” (5–12 feet), while the defense table is farther away, on the other side of the lectern – outside social distance.
Judges expect the defense (and the defendant) to occupy seats farthest from the jury.
The Witness Box Advantage
The prosecution also benefits from sitting closest to the witness box, giving them a direct view of witnesses during testimony. Meanwhile, defendants and their attorneys, seated farther away, often lack a clear line of sight to confront their accusers effectively.
Counsel Tables
The prosecution’s table depends on where the jury box is. If the jury box is on the right, and the defendant’s table is on the left.
Either way, the prosecutor gets the seat closest to the jury and the witnesses. The prosecutor possesses a privileged status with the court.
Propinquity Brings Affinity
Proximity Creates Influence
This cozy seating arrangement results in the jury seeing the prosecution much more closely than the defense. Jurors are likelier to notice the prosecutor’s expressions, body language, and nonverbal cues.
Prosecutors sitting at their table can (and do) take advantage of this. They will react to witnesses they don’t like. They whisper, “Oh, look at that liar,” shaking their heads, knowing full well that if the jury can’t hear, they can at least see their displeasure.
They’ll flash open a picture in a file, point to it among themselves, and shake their heads.
This sideshow in front of the jury is subtle and deliberate. Of course, the legal fiction is it doesn’t happen.
Social Distance Matters
Anthropologist Edward Hall’s research on “social distance” demonstrates that physical closeness fosters trust, likability, and credibility. Prosecutors, sitting within this range, can establish rapport more effectively than defense attorneys seated farther away.
Hall defined social distance as the distance between persons interacting. It measures “from four to seven feet and extends from seven to twelve feet in its far phase.”
When humans are physically closer, we presume they are together for a reason. Hall believed “physical distance and communication effectiveness are correlated.”
When people are within “social distance,” they tend to seem more likable and more trustworthy.
In a federal trial, the defense sits outside social distance, while the prosecution sits within social distance.
The defense is always farther from the jury’s ears and eyes. This puts them at a disadvantage in establishing rapport and credibility. Humans tend to distance themselves from those they do not trust or like.
If the judge assigns the jury closer to the prosecution and away from the defense, the jury is more likely to assume that the judge, in his wisdom, assigned trustworthiness and credibility to those in closer proximity. The closer a speaker is, the more influence they have.
Empirical Evidence
In 1994, Jeffrey S. Wolfe conducted an experiment where jurors were presented with a mock case by lawyers moving within different quadrants. The quadrant closest to the jury and the one within “social distance” was Quadrant I.
The study results were that the jurors selected attorneys in Quadrant I as having a better rapport, being more in control, and being more persuasive.
The “ability to see and hear the lawyer,” and the intensity of the communication, depended on the lawyer’s location relative to the jury.
Home-Field Advantage
This seating arrangement tilts the playing field in an adversarial system where the defendant is presumed innocent.
I suspect prosecutors would object to switching positions. It would be like losing the home-field advantage. Their argument might be that the defendant would take advantage of being closer to the jury (by that objection, they prove they know they have an unfair advantage).
However, in a criminal trial, the defendant is in jeopardy, and if one ought to have the advantage, fairness requires the defense to occupy the favored seat. The defendant should have the right to appear before the jury in his best posture and provide the jury with relevant, nonverbal evidence, including the defendant’s confrontation with hostile witnesses.
The argument that the prosecutor is superior ethically is defeated by the fact that the defendant is supposedly innocent until proven guilty (a legal fiction), and the defense and the prosecution are to be treated equally (another legal fiction).
There is no due process argument that the prosecutor should have an advantage over the defendant with the jury. Or have a better view of the witnesses. But if the prosecutors deny it is an advantage, they should be willing to give up their table next to the jury.
Defense Should Have the Advantage
A defendant in a federal trial is more than 80 percent likely to be convicted at trial (that’s after the 90 percent of those charged who take plea bargains).
It is an advantage to be closer to the jury. A built-in advantage not prescribed by the Constitution or by statute. The arrangement is an unfair tradition. Let’s call it prosecutorial privilege.
Solution
A simple solution is for the prosecution and the defense to alternate days to be closer to the jury. They all sit at tables. Both sides bring their files each day and take them when they leave. Nobody etched their initials on any table.
Courtrooms could be designed so that the prosecution and defense are equally distant from the jury.
I’d like to hear an objection, other than “we have always done it that way.”
“It is the first responsibility of every citizen to question authority,” said Benjamin Franklin.
So, my question is, “why does this advantage to the prosecution exist?”
According to those who conduct a trial, it is an adversarial contest in search of the truth. Each side challenges the other’s claims in the pursuit of truth. Because the truth is to be determined by the jury (who are not part of the government), the contesting parties must be treated equally and neutrally by the judge. That is the legal fiction.
It is the judge’s courtroom. No law forbids a change toward fairness except bias.
Or the need to deter trials for the sake of the industry’s profit model.
I urge all defendants and defense lawyers to demand equal distancing of the prosecutor and the defense with the jury in criminal trials, and make a “Motion Concerning Courtroom Seating” one of their pretrial motions.
Frank Parlato is an investigative journalist, media strategist, publisher, and legal consultant.
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The bottom line is innocent people sacrifice for the sale of America. To keep us safe we have to prosecute and not have endless trials. Trust the prosecutors.
Why didn’t “The Smartest Man In The World” raise seating bias in his appeal to the Second Circuit? I suppose the issue would initially need to be brought up by the defense during pre-trial motions to have any merit.
Frank is pathetically ignorant concerning plea bargaining. There is no court system in the United States that can try more than a maximum of 2-3% of the filed cases since the number of courtrooms are limited. For example, there are 677 federal District Court judges nationally. For 2023 there were 68,950 criminal cases filed in federal court. A jury trial lasts a minimum of 3 days. If every defendant demanded their right to jury trial, that’s 206,850 trial days, not to mention the millions of trial days left over from decades of backlogged cases if every defendant demanded a trial. However, this is just the tip of the iceberg – in 2022 across all state court jurisdictions in the US there were 2.9 million felony cases filed and millions more misdemeanor cases filed.
Frank, what’s your solution that allows the federal and state court systems to function, let alone exist without plea bargaining?
President Trump proved, beyond any reasonable doubt, that the America court system, whether state or federal, civil or criminal, is corrupt to the core and no better than you would find in other despotism’s the world over.
In any business, proximity to the customer is critical. In the courtroom, the customer is the jury. That’s why the prosecution sits closest to them.
Think of it as premium shelf space in a grocery store. Being closer makes you more visible, more memorable, and ultimately, more persuasive. The defense? They’re stuck on the lower shelves, far from the jury’s eyes and ears.
Dude, the American justice system is a model for the world. It is not perfect—perfection is impossible—but it is the closest humanity has come to achieving a balance between efficiency and fairness. You’re too hung up on Blackstone. That was old England. This is America.
I get where you’re coming from, but it’s tough to ignore how seating arrangements can influence perceptions in court. It just feels like justice should be more balanced.
In courtrooms, proximity symbolizes trust. The prosecutor’s seat near the jury represents the state’s confidence in its case, a visual affirmation of the integrity of the system. The defense, seated farther away, ensures there is no undue influence over the jury’s impartiality.