Wednesday, June 18, 2008

"You don't need a jury trial"

Overheard in the courthouse as lawyer talks to client and his girlfriend, having just walked out of the arraignment hearing: "You don't need a jury trial so just stop by and sign the jury waiver."

Granted, I don't know the facts of the case or the lawyer's motives, it just struck me as an example of a client relying on a lawyer for advice and getting advice that may be better for the lawyer than the client. In my experience, there is no better tool than a jury trial or the threat of one to persuade the prosecution to deal with your client reasonably. If they know they have an ex-colleague on the bench who will be "deciding" guilt or innocence, what's their incentive to work with you?

When I was in the Public Defender's Office, the City Prosecutors lobbied the City Council to pass an ordinance against child neglect so they could charge people with that crime. The motive, as I heard a prosecutor explain to the judge, was to deprive the defendants of jury trials since the ordinance carried up to six months in jail and thus no constitutional right to a jury trial. (Blanton v. City of North Las Vegas)

So I sent out a memo to all attorneys, advocating that, as a group, we start filing jury demands on lesser misdemeanors since Nebraska law allows a jury trial in all statutory misdemeanors carrying potential jail time if the defendant files a jury demand within 10 days of arraignment.

In other words, in Omaha, if you are charged with a class I misdemeanor (up to a year in jail) your case is set on the "jury docket" since you have a Constitutional right to a trial by jury. But you still have a statutory right to a jury trial if you ask for it.

The problem is, most lawyers don't either out of lack of knowledge, lack of motivation or even fear that, because so few attorneys ask for this right, that your client will draw the ire of the Court and see a "trial tax" imposed if a conviction is achieved.

But, for whatever reason, no one else in our office wanted to start demanding jury trials and, after some brief discussion, the idea was shot down. I asked for a "group effort" for fear that I'd be singled out for this tactic despite the fact that I could point to examples of using it to my client's advantage.

Again, I don't know if the advice this lawyer gave was good or bad since I don't know the context, but I see way too may criminal defense lawyers pushing their clients into pleas, into waiving jury trials or into racing to the prosecutor's offices.

But there is a bright side to having a lot of other lawyers who practice this way: if you're not afraid of trials, you become a rare example.

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