Unless a change is made during the upcoming short session, S399, which passed last year, will place a referendum on the November ballot giving voters the choice to amend our state constitution to allow defendants charged with non-capital crimes in Superior Court to waive their right to a jury trial.

Text and voting history of S399 is here - http://ncleg.net/gascripts/BillLookUp/BillLookUp.pl?Session=2013&BillID=s399&submitButton=Go

I wanted to bring this to the attention of TSB because this issue has been severely underreported in my opinion, I've only seen a few stock stories written back in March of this year. http://wunc.org/post/criminal-defendants-north-carolina-could-waive-right-jury-trial

This is not a partisan issue, all but a single member of the NCGA voted in favor of this bill; Rep. Michael Speciale (R) was the lone vote in opposition. I have spoken to Rep. Speciale and I am trying to help him raise awareness of this issue prior to November. I am an attorney in NC and I only found out about this upcoming ballot measure a week ago and I've yet to speak to another attorney who was aware of it prior to me bringing it to their attention.

Anytime the state seeks to weaken 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 don't believe they have done so in this case. I understand you can waive your right to a jury trial in Federal Court and in some other states, but I don't believe that is a reason for NC to follow down the same path.

I emailed both my state representative and senator this morning asking why they voted in support of this bill. My representative actually emailed me back and, after a brief email exchange, we spoke on the phone and I believe I was able to convince him his vote was in error. I would encourage each of you to do the same because more than likely your representative and senator could not articulate any legitimate reason for voting in favor of this bill.

4/11/2014 12:45:55 PM

So if it goes straight to the judge, is a criminal defense lawyer still needed?

If not sounds like there might be some criminal defense lawyers looking for work.

4/11/2014 1:08:27 PM

they have reasons to vote for this, just not reasons they can admit to publicly

(spoiler: they are all rich and in the pockets of other rich people)

4/11/2014 1:14:05 PM

How does money influence this decision?

I would think big trial lawyers would influence in the other direction.

4/11/2014 1:17:16 PM

its easier to influence a judge than a full jury, and rich people get treated differently in courts than poor people to. in the US we have two justice systems, and this helps make sure that some people can stay in the safe one.

4/11/2014 1:19:06 PM

If it's simply allowing them the right to waive the jury trial in favor if a bench trial I don't see the problem.

4/11/2014 1:23:25 PM

Even in a bench trial, you'd still need a defense attorney. What likely will happen is people will waive their right to a jury and their right to an attorney and get themselves in a heck of a lot more mess than before. You'll likely see more pro se litigants, but it won't lead to better results for the Defendants.

4/11/2014 1:31:31 PM

To rjrumfel, the statute isn't entirely clear on how soon a defendant could act to waive his right to a jury trial. Generally speaking a defendant is almost always going to be eligible for an appointed attorney in Superior Court, but there could still be a scenario where a defendant acts to waive his right prior to being appointed an attorney.

My representative asked me to put together a list of additional safeguards I would like to see added to the proposed revised statutory language. Any suggestions from TSB?

4/11/2014 1:47:17 PM

Quote :

"its easier to influence a judge than a full jury, and rich people get treated differently in courts than poor people to. in the US we have two justice systems, and this helps make sure that some people can stay in the safe one. "

Why am I not surprised that this is your argument. Maybe rich people get treated differently because they can hire better lawyers? Unless specifically stated by one of the attorneys, how is a jury going to be able to differentiate the wealth of a rich person vs a poor person when they wear the same orange jump suit?

And how is a judge going to be more in favor of a rich person vs a poor person? The way they articulate themselves to the judge? Or are you saying you can buy judges off?

4/11/2014 1:56:32 PM

My inner cynic feels as though it will be easier for the Duke Energys of the state to cuddle up with the Paul Newbys of the state.

4/11/2014 2:18:52 PM

This bill only refers to criminal cases in Superior Court, this bill has nothing to do with the NC Supreme Court.

4/11/2014 2:21:11 PM

Are Superior Court judges elected?

Also, welcome back to NC! Last we met/spoke, you were the brightest bulb in some SC backwater...

4/11/2014 2:23:33 PM

Yes, Superior Court judges, like basically all judges in NC, are elected. So, to the extent you're comparing monies contributed to Supreme Court races to monies contributed to Superior Court races, I suppose the comparison is apt.

And thanks. I've been back in NC for some time now. But it's hard to believe I ever described myself as the brightest bulb anywhere.

4/11/2014 2:27:26 PM

With the evisceration of any meaningful campaign finance laws, you can bet that more money will be sloshed around behind to scenes to cover any race the powers that be (Art Pope, et al) deem worthy of their attention.

Well, you didn't say that directly, but you did mention your education level in relation to local demographic...

4/11/2014 2:34:29 PM

sounds like it will streamline a lot of court cases and give defendants another option, strengthening their hand. win/win.

4/11/2014 2:34:31 PM

I agree it will likely help clear the docket in Superior Court, but that doesn't necessarily equate to a "win/win" for defendants. There are only a few rare instances I could think of where I would advise a client to waive a jury trial and, unfortunately, not all defendants a) can afford private counsel and b) get appointed defense counsel who is also a competent trial attorney, meaning a less experienced, less confident attorney may have an incentive to push their client towards a plea rather than risk a jury trial.

4/11/2014 2:50:50 PM

Quote :

"Maybe rich people get treated differently because they can hire better lawyers? Unless specifically stated by one of the attorneys, how is a jury going to be able to differentiate the wealth of a rich person vs a poor person when they wear the same orange jump suit? And how is a judge going to be more in favor of a rich person vs a poor person? The way they articulate themselves to the judge? Or are you saying you can buy judges off?"

wat?

You don't see an issue with the fact that wealth buys better attorneys and thus very often a more favorable verdict/judgement? Don't you see enough examples of the wealthy getting away with crimes because they can afford better representation, or just by the fact of their wealth, which is often known to judge and jury?

4/11/2014 3:31:53 PM

Quote :

"Why am I not surprised that this is your argument. Maybe rich people get treated differently because they can hire better lawyers? Unless specifically stated by one of the attorneys, how is a jury going to be able to differentiate the wealth of a rich person vs a poor person when they wear the same orange jump suit? And how is a judge going to be more in favor of a rich person vs a poor person? The way they articulate themselves to the judge? Or are you saying you can buy judges off?"

In a major city like Charlotte no. On the other hand in some shithole city like Lumberton, yes

4/11/2014 3:51:35 PM

Quote :

"major city"

Quote :

"Charlotte"

4/11/2014 4:11:40 PM

It's one of the 20 majorest cities in the country.

4/11/2014 4:48:03 PM

And bigger than DC. Lol

[Edited on April 11, 2014 at 7:19 PM. Reason : Fucking iPad ]

4/11/2014 7:19:18 PM

The purpose of this legislation is to protect the corporatocracy in place.

[Edited on April 14, 2014 at 2:01 PM. Reason : .]

4/14/2014 2:00:45 PM

I don't know why I try with you people sometimes...

4/14/2014 7:39:41 PM

Well after what's going on with Duke Energy, can you blame us for being skeptical?

4/14/2014 7:54:36 PM

Explain it to a non-lawyer: How does giving people a right they didn't have before equate to "weakening a constitutional right?" They still have the right to a jury trial right? They would just then have the ability to waive that right.

Just the other day I was thinking of how scared I would be to have my fate in the hand of my peers in this god damned state.

4/15/2014 9:45:38 AM

I'll work on putting together a "layman" explanation, with layman being in quotes because it's not really like us attorneys bring any special knowledge to the table. I'm just one of those attorneys who is more inclined to be skeptical of state action than some.

I am waiting for a call back from a lobbyist who has dealt directly with this issue in the legislature, so I hope to have a better understanding of the rationale for this bill soon.

4/15/2014 10:31:42 AM

For someone so vehemently against it, I'm pretty sure you could explain why this is a bad thing, without a consult.

4/15/2014 8:38:48 PM

^.

4/15/2014 10:35:18 PM

I'm reaching out to various groups/individuals that are more directly involved with the legislature to try and determine what the stated purpose is for this bill, not so that I can help to explain my opposition.

First, there's this -

Quote :

"Anytime the state seeks to weaken 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 don't believe they have done so in this case. I understand you can waive your right to a jury trial in Federal Court and in some other states, but I don't believe that is a reason for NC to follow down the same path."

The comparison some have made to Federal Court, I think, is misleading because while defendants can waive their right to a jury trial there, 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 the case with state public defenders. If you are charged with a crime in NC and cannot afford private counsel, you could be appointed an attorney with very little (or no) trial experience, or just very little experience in general. The pre-req's for working as a public defender or appointed attorney at the state level are not the same as at the federal level.

This is not meant to disparage anyone at the public defender's office, obviously there are many great, experienced attorneys working there. But the public defenders, especially in larger districts, also have an overwhelming caseload.

Ultimately, my concern is that an overwhelming caseload combined with an inexperienced defense attorney could lead to a defendant waiving their right to a jury trial due to bad legal advice from an attorney who may not want to have a jury trial. Jury trial experience is becoming rarer for those not working as a prosecutor or public defender. Many appointed attorneys may not have any actual jury trial experience. The prospect of a jury trial is rather intimidating and some may be inclined to advise their client to waive the right on some level out of fear of having to conduct a jury trial.

In addition, based on the current language in the statute, there could be a scenario where a defendant is charged with a crime and goes before a judge and waives 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 the jury won't believe them due to racial or other biases, or may be convinced they have a better shot with a particular judge.

It's hard to believe for some of us, but there are people out there who don't care about their criminal record. A felony conviction for most of us would be devastating, but not to all. If a defendant has been sitting in jail unable to make bond for quite some time, they often plead guilty simply to get out of jail - even if they're innocent, or more likely, they know the state has an extremely weak case. But the potential for abuse does exist, and the least advantaged would be the ones hurt by this new "right." The jury trial is one of most important protections against government abuse in the western world. I wouldn't exactly call it an expansion of your right to a jury trial by allowing said right to be easier to dispense with.

Although waiving a jury trial would likely be a rare occurrence, you could make the argument that the exception would eventually become the rule. If the whole purpose of this bill is ostensibly to save costs - which is the only rationale that makes any sense - well, we could save a lot more money by donig away with the jury system altogether. Basically, we're trying to solve a problem that doesn't exist with this new bill.

4/16/2014 6:10:58 AM

so your reasoning is "to protect folks from their own stupidity"?

4/16/2014 6:36:59 AM

No.

4/16/2014 6:47:22 AM

^^ What it looks like to me. That and it seems this "weakening" of our rights will give lazy attorneys an out from working.

I'm in favor of this Amendment.

I bet you're a Democrat aren't you Goldie Hawn?

4/16/2014 7:04:46 AM

yeah, I'm not really understanding why this is ~bad~

4/16/2014 8:10:44 AM

Sounds like your issue is with poor preparation of public defenders. That they are not trained/experienced/edcated enough to give an informed opinion to their client about proceeding with a bench trial or jury trial.

Limiting a defendants options is strictly to prevent public defenders from.being stupid, in your eyes. Why should that be the case? Why not properly train, to fix the problem, instead of fucking over the rest of the population?

4/16/2014 10:51:41 AM

^ That is one issue, but goes into a whole different discussion about the state of the justice system in general.

Also, let me state since I haven't already, one of my major concerns about this proposed amendment is that I've yet to speak to another attorney who was even aware this was going to be on the ballot in November. If the legal community isn't even aware (based on my anecdotal survey), then I can only imagine the voting public at large is equally, if not more, unaware of this issue. It's extremely troubling that the public will be voting on such an important issue likely without having even thought about it prior to entering the voting booth. Compare this to the media exposure Amendment 1 received only two years ago. This is one of my motivations in posting on this here at TSB. Agree or disagree, at least those of you who read this thread will have considered the issue prior to voting.

[Edited on April 16, 2014 at 11:48 AM. Reason : ....]

4/16/2014 11:47:38 AM

Defendants can already waive their right to a jury trial can't they? Isn't that pretty much what you do when you either plead guilty to the original charges or accept a plea bargain? So wouldn't this bill basically be introducing another step between plea bargain and full on jury trial? A place where a defendant can say "I don't like my chances with the jury (maybe because I'm unsympathetic, an ex felon wrongly accused of the same felony again), and I don't want to accept the plea bargain the prosecutor is offering (because I'm innocent), so I'm hoping I can convince a judge of my case"

Certainly I see your concern about lousy legal advice but the same applies with the existence of plea bargains and if it's egregious enough, isn't that something you can appeal on? More interesting to me is would the same rules of evidence apply if you elected for trial by judge? If there's a dispute over what can and can't be entered into evidence, would that need to be adjudicated by a second judge so that the first never sees the evidence if it is ruled inadmissible?

4/16/2014 1:19:10 PM

You haven't really made any other logical case outside of attorneys that are appointed might be stupid.

Awareness of the ballot isn't a reason to advocate for or against the position.

You're grasping at straws to make your case.

4/16/2014 2:22:10 PM

any time you are looking to remove or limit a right, "because why not, i see no argument against it" should never be sufficient

4/16/2014 2:48:19 PM

Quote :

"Juries do the right thing the vast majority of the time"

Oh look, we got Polyanna in here. Juries sometimes do the right thing, but the deck is so thoroughly stacked against the defendant, I'm not sure I buy the idea that "juries do the right thing the vast majority of the time." The only way you could claim this is if you think the guy is usually guilty, at which point, why even bother having the trial?

4/17/2014 12:46:40 AM

^^neither of which is the case here.

4/17/2014 7:19:41 AM

dtownral is on point with this shit:

Quote :

"any time you are looking to remove or limit a right, "because why not, i see no argument against it" should never be sufficient"

4/17/2014 8:12:17 AM

again, how is that statement applicable to this thread, since there is no right being taken away or diminished?

4/17/2014 9:28:54 AM

the right is only not diminished if you believe a lay person has a complete understanding of the court process, justice system, and their rights

4/17/2014 9:42:16 AM

they are still entitled to a jury trial. the right is not diminished.

4/17/2014 11:36:17 AM

that's only true if he has a complete understanding

4/17/2014 11:40:54 AM

^^^Civics from high school. Didn't pay attention? Oh well. Can't have a safety net for every dumb person out there.

Minors already have protection built in, and foreigners should be hand held throughout the entire process b/c you can't expect them to know and understand how the system works.

4/17/2014 12:06:04 PM

I don't necessarily disagree with ^, but, like dtownral argues, "knowingly and voluntarily" is different for different people. My "knowingly and voluntariy" waiving a right is not the same as a waiver by an uneducated (in the formal sense) individual with fewer resources.

On the other hand, it's good to see common ground with some TSB'ers that I disagree with most of the time. This is where my prosecutorial background sets me apart from some of the tougher "law & order" Republicans who don't share my view of civil liberties.

4/17/2014 12:36:51 PM

if there is disagreement about my statement that this is removing or limiting a right, I will revise my statement:
any time you are looking to change a right, "because why not, i see no argument against it" should never be sufficient

4/17/2014 12:39:09 PM

Asking someone to explain why this is the most egregious trampling of rights possible is not the same as saying "why not?"

As an publicly known atheist, maybe I don't want a jury trial in NC.

4/17/2014 2:19:20 PM

Just an FYI, NC Rule of Evidence 610 generally would not allow evidence of your religious belief, or lack thereof.

http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_8C/GS_8C-610.html

4/17/2014 2:43:50 PM