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NC Constitutional Amendment to be on the Ballot in November

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Should you be able to opt out of a jury trial?

Should you be able to opt out of a jury trial?

Consider this a public service announcement for PunditHouse readers. How many of you were aware there was going to be a constitutional amendment on the ballot this November? I only found out about this amendment referendum in early April of this year so don’t feel bad if you answered in the negative. I have asked this question to a few attorneys statewide since April and have yet to find one who had any prior knowledge of this amendment, so based on my anecdotal research I would assume the general public is even less aware – which is to say not aware at all. I hope this article will provide an introduction on the proposed amendment in order to allow each reader to do their own research well before walking into the voting booth this November.

So what will the voters be voting to amend in November you ask? Unless a change is made during the remainder of the current short legislative session, Senate Bill 399 (Session Law 2013-300) introduced by former Sen. Pete Brunstetter and passed last year by a unanimous Senate vote and near unanimous vote in the House (except for the lone dissenting vote by Rep. Michael Speciale) will ask voters to amend Sec. 24 of Art. I of the North Carolina Consitution – the Right of a jury trial in criminal cases. Sec. 24 currently reads:

Sec. 24.  Right of jury trial in criminal cases.

No person shall be convicted of any crime but by the unanimous verdict of a jury in open court.  The General Assembly may, however, provide for other means of trial for misdemeanors, with the right of appeal for trial de novo.

And if approved by the voters in November, Sec. 24 will be revised to read:

No person shall be convicted of any crime but by the unanimous verdict of a jury in open court, except that a person accused of any criminal offense for which the State is not seeking a sentence of death in superior court may, in writing or on the record in the court and with the consent of the trial judge, waive jury trial, subject to procedures prescribed by the General Assembly. The General Assembly may, however, provide for other means of trial for misdemeanors, with the right of appeal for trial de novo. (2013-300, s. 1.)

I have emailed both my state representative, Rep. Charles Jeter, and state senator, Sen. Jeff Tarte, to ask why they voted in support of this bill. Rep. Jeter responded in a timely manner as he often does and, after a brief email exchange, we spoke on the phone and I was able to explain my concerns with the amendment. I was able to ask Sen. Tarte about his vote during his recent town hall meeting in Huntersville on June 20 and he essentially admitted the only reason he voted in favor was in deference to those in the legislature who knew more about legal issues than he does – not uncommon in any legislative body, but a wholly insufficient reason in my opinion when voting on something as important as amending a constitutional right.

Anytime the state seeks to amend a constitutional right, especially one as vital as the right to a jury trial, the state should bear the extremely high burden of demonstrating why this is necessary. I do not believe this has been done in the case of Senate Bill 399. While the right to waive a jury trial does exist in Federal Court and in some other states (e.g., Rule 14 of the South Carolina Rules of Criminal Procedure), I do not believe this is reason enough for North Carolina to amend our constitution.

The comparison to Federal Court, I think, is misleading because while defendants in Federal Court can indeed waive their right to a jury trial, appointed defense attorneys in Federal Court are very experienced and have undergone extensive training and mentoring to even be allowed on the appointed list. That is not always the case with state public defenders or appointed counsel. If you are charged with a crime in North Carolina and cannot afford private counsel, you could be appointed an attorney with very little (or no) trial experience. Now this may no longer be the case in the future due to changes being made currently with the North Carolina Office of Indigent Services and the method of appointing attorneys, but the pre-requisites for working as a public defender or appointed attorney at the state level are currently not the same as at the federal level.

This is not meant to disparage any of the attorneys working at the public defender’s office or as appointed counsel because there are many great, experienced attorneys performing such work (and for very little pay) – I know this for a fact because I used to work with many during my short time as on the appointed attorney list in Mecklenburg County. But the public defenders and some appointed attorneys, especially in larger districts, also have an overwhelming caseload. Ultimately, my concern is that an overwhelming caseload combined with inexperience could result in a defendant waiving their right to a jury trial due to poor advice from an attorney who may not want to have a jury trial for myriad reasons. Jury trial experience is becoming rarer for those not working as a prosecutor or public defender and many appointed attorneys may not have any actual jury trial experience.

In addition, based on the current language in the statute, a defendant charged with a crime could go before a judge and waive their right to a jury trial either a) before even being appointed an attorney, or b) before meeting with the attorney they’ve been appointed. If the latter, more than likely the court will have notice of an attorney being appointed and not proceed without said defense attorney, but a client can always waive his right to counsel as well. Juries do the right thing the vast majority of the time, but some defendants may believe a jury trial would be against their interest due to racial or other biases, or may be convinced they have a better shot with a particular judge.

A felony conviction for most of us would be devastating, but not to all, especially for someone with a prior felony on their record. If a defendant has been sitting in jail unable to make bond for quite some time, they may be incentivized to plead guilty simply to get out of jail – even if they’re innocent. It’s true that defendants waive their rights all of the time, but just like with other waivers, the potential for abuse does exist if this amendment passes and the least advantaged would be the ones most likely to be harmed. The jury trial is one of most important protections ever devised against government abuse. As Thomas Jefferson famously said, “I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its consitution.”

Although waiving a jury trial would likely be a rare occurrence, you could make the argument that the exception could eventually become the rule. If the rationale for this bill is ostensibly to save costs, the state could save a lot more money by doing away with the jury system altogether.

I will be voting against this amendment in November for the reasons outlined above. The Constitutional Amendments Publication Commission is supposed to be coming out with a background document explaining the question for voters that can be accessed at county election offices prior to November. I hope as many voters as possible review this document before voting in order to minimize the number of people casting a ballot on such an important issue without having ever considered it beforehand.

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