Tuesday, July 21, 2009

Why you should always demand a jury trial

The right to a trial by jury extends to both civil and criminal matters. The jury system is designed as a two part collaborative by citizens to maintain their control over the rule of law. That is, the defendant in a criminal prosecution or either party in a civil suit must demand a jury trial, and, jurors must be willing to be empaneled. Of course the court can compel people to be jurors but a willing venire better supports the principles of our Republic.

The principle of a jury trial was first established in the year 1215 in England when King John signed the Magna Carta. The right to a trial by jury was adopted by our Founding Fathers through the Fifth and Sixth Amendments to the United States Constitution.
In Indiana, the right to a trial by jury is protected by the Bill of Rights of our state constitution.
Article 1 § 13 (a) “In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury...” Article 1 § 20 (a) “In all civil cases, the right of trial by jury shall remain inviolate [undisturbed].”

Jury service represents one of the most important civic responsibilities we have as citizens. When you fulfill your obligation for jury service, you are helping to protect our liberties and to preserve our system of justice.

Would you like to have the power to veto a law just like a governor?  Would you like to have the power that your veto can't be over-ridden?  If so, then you want to be a juror.  This is what is known as jury nullification. The concept of juror nullification is the foundation of rule by the people.  Our government was established by the people and for the people.  Ultimately, we the people, have the last say.  This is why it is so important for everyone to demand jury trials.  This allows the people to exercise their ultimate right; the power to determine the law.

Judges will tell you as a juror that you have the responsibility to determine the facts of the case.  What they rarely explain is that you have the right to determine the law.  That is, you get to decide if you want the law enforced in that situation.

In Indiana it is a criminal offense to tell your child, under the age of 15, to masterbate instead of having sexual intercourse or to wait and have sexual intercourse after you get married. You have likely at one time or another said that some law is stupid and shouldn't be enforced. Your opportunity in challenging that is to demand a jury trial if charged under that offense or to vote for acquittal if serving on a jury hearing such a case.

The importance in demanding a jury trial in every criminal case is that it ensures that only those cases which truly serve the public interest will be prosecuted. Currently about 96% of cases are settled through plea agreement nationwide. The courts are still congested. The remaining 4% of cases do not all go to jury trial, some are dismissed.

My criminal charges result in dismissals because I demand jury trials. I have even gone so far as to demand that a felony charge be reinstated against me after it was dropped so that I could have a jury trial and use the court's time. That case involved an allegation that I had severely abused my child which was completely false. This charge was filed immediately after I started a father's rights group in Boone County Indiana.

The trial was schedule to take place for three days with more time allotted as needed. I had 600 pieces of documentary evidence and over 30 witnesses to present. Without ever going to trial 12 hours, or 1.5 days, was spent on pre-trial hearings. I expected the trial to take at least one week itself. That would mean that my trial alone would take nearly 1.5% of the court's time in the two years it went on. In a court that handles over 1000 cases a year that is just not practical. The prosecutor knew it and that is why the charge was dropped.

This brings me to why you should always demand a jury trial. In a plea agreement you have a 100% chance of being adjudicated guilty. The rate is much lower when jury demands are made. In fact, a study of 18 months of criminal cases filed in Boone County, Indiana during 2005-2006 revealed that less than 6% of cases where a jury trial was demanded resulted in a conviction.

Last week I obtained the trial schedule for September 1, 2009. There are 25 trials scheduled for that day of which 21 are felonies. Three are Class B felonies. Courts here rarely hold more than two criminal jury trials in one week. When they do, other matters such as divorces and other civil cases get pushed back. In reality, the court can hold about one jury trial per week. This is consistent with the common finding that courts can only handle about 1/20 of cases going to trial.

Going on odds alone if every one demands a jury trial you have a 19/20 chance of your case getting dismissed. So then why do so many people opt for a plea agreement. This is due in large part to monetary considerations. Whether you have a public defender or private counsel money is a significant consideration.

Private attorneys do not come cheap. A drawn out jury trial can cost many thousands of dollars. Had mine gone to trial the fees would likely have been about $25,000. Most defendants simply cannot afford that. That leaves using a public defender or going pro se.

In Boone County the public defenders [PD] are private attorneys who operate out of a draw pool for assigned cases. We are not a large enough community to have our own public defenders office with retained attorneys. These attorneys get paid a flat fee depending upon the type of case. Just last week Judge Rebecca McClure told one of these PD I know you have already put more time into this case than what you are getting paid for so I would like to more it along. There is a much greater financial incentive for the PD to take a plea agreement than go to trial.

If you choose to go pro se and represent yourself then only do so with some assistance. Still you have a distinct advantage that those who are represented by attorneys don't; you can flood the court and prosecutor with motions, discovery and other processes that only serve to overwhelm them with paperwork. This is commonly referred to as defense by paper-storm. This is especially effective in misdemeanor cases where there is just no value in putting more effort into prosecuting a misdemeanor case than a murder case.

The other reason that most people take a plea is because of the false assumption that they will get a lighter sentence. I have seen defendants sentenced to the statutory maximum after taking a plea that made no sentencing recommendation. That is stupid. It was the same as the maximum sentence that could have been given if convicted by a jury.

Earlier this year I was involved in advising a defendant and his public defender on a misdemeanor case. The prosecution had offered to let him plead guilty to any one of the seven charges in exchange for the rest being dropped. The agreed upon sentence would be time executed plus one year probation with six months of that on GPS monitoring. I thought that plea offer was a joke.

I was adamant that they reject that plea offer and go to a bench trial since a jury demand had not previously been tendered. I gave them a 95% probability of equal or less than sentencing as I did feel one of the charges would stick and I was familiar with the judge. Fortunately my advice was taken. The defendant was convicted on six of the seven counts and sentenced to six months detention with all the time suspended except the portion already served. He walked out of court that day a free man, no probation, no fines.

In Boone County the first trial of the year in 2006 took four days and resulted in a hung jury. Just last week a jury could not come to a unanimous vote in a child rape case. In a one day trial in 2007 where I advised the defendant and the PD a jury returned an acquittal in under an hour and some members actually apologized to the defendant for what she had to go through. In another 2007 case I advised a defendant to withdraw his guilty pleas and go to trial. He did and was ultimately convicted but was sentenced to less time than called for in the plea agreement. Earlier this year after multiple days of hearings in a murder case, that was headed to what would likely have been a 7-10 day trial, the prosecutor offered a plea agreement to time served and three years probation which was accepted by the defendant.

The courts cannot handle more than 1 out of 20 cases going to a jury trial. Judges do not always hand down sentences greater than those offered in the plea. Jurors do not always convict. Public defenders sometimes get paid more per hour if you take a plea agreement. But, most importantly, our system of representative government and the strength of our republic depends upon jury trials.

If you have the opportunity to demand a jury trial, do it. If you have the opportunity to serve a juror, do it and do it emphatically.

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1 comment:

Michael said...

A great site that describes jury nullification in full is JuryBox.org. Lots of great information, history, and how to get the word out there about it.