Bill of Rights. (From the public domain.)

Yesterday I blogged on a recent marijuana bench trial victory in federal magistrates court.

In my view, however, it is unconstitutional — absent the clear and informed consent of the criminal defendant on the record in court — to expose a person to incarceration without a judge nominated by a governor or the president and confirmed by the respective legislature — or else elected pursuant to state Constitutional provisions — and without the right to a trial by jury.

Federal judges rely heavily on magistrate judges to handle trials for misdemeanors not jailable for more than six months, for extradition hearings, and for a slew of civil matters and other criminal matters. Among the jurisdictions where I practice law, the most heavy use of magistrate judges at the non-federal level in criminal court is in the District of Columbia, where magistrate judges have wide authority to set bail and release conditions, and the authority to revoke bail for jailable traffic matters that are not jailable over six months.

Magistrate judges in the federal court and the D.C. Superior Court are hired by presidentially appointed judges. Federal statutory law gives criminal defendants facing no more than six months incarceration per count (also known as “petty offenses”, which are defined by name at 18 U.S.C. § 19 and by maximum sentencing length at 18 U.S.C. § 3559(a)(7)) neither a right to a trial by jury (long confirmed by the Supreme Court as to the jury trial right, as further discussed below) nor by a presidentially-nominated judge, as opposed to by a magistrate judge. 18 U.S.C. § 3401(a)-(b); Fed. R. Crim. Proc. 58(b).

I have been unable to find any federal appellate decisions about the Constitutionality of forcing a criminal defendant to be tried by a magistrate judge for petty offenses. The most relevant recent judicial decision that I found permitting the practice as Constitutional (and I found no judicial decisions finding the opposite) is U.S. v. Rivera-Negron, 21 F.R.D. 285 (D.P.R. 2001), which says in pertinent part:

“In 1996 Congress enacted amendments to 18 U.S.C. § 3401 which allowed magistrate judges to try persons accused of an infraction, Class C misdemeanor or Class B misdemeanor involving a motor vehicle offense, without the defendant’s consent. 18 U.S.C. § 3701 (1997). Thereafter, a constitutional challenge was brought contending § 3401 as unconstitutional as it eliminated the requirement that a defendant consent to be tried before a magistrate judge. See United States v. McCrickard, 957 F. Supp. 1149 (E.D. Calif. 1996). Following an extensive analysis, the Court concluded that amendments to 18 U.S.C. § 3401 were constitutional given the historical evidence that the Framers distinguished between the constitutional rights of defendants charged with felonies and petty offenses. Id. at 1155. Moreover, the Court looked to the Congress’ capacity to confer jurisdiction on a magistrate judge to try petty offenses.  Id. at 1155-56. Finally, the Court took into consideration that Congress was aware of the constitutional issues posed by the 1996 amendment and resolved same by reference to Supreme Court precedent and historical practices. Id. at 1156. The 2000 amendments to 18 U.S.C. § 3401 are similar to the 1996 amendments. As with the 1996 amendments, the 2000 amendments also eliminate the need for consent, but expands the scope to all petty offenses. The analysis employed in McCrickard is applicable to the 2000 amendments. There is no support for Rivera’s blanket assertion that recently amended 18 U.S.C. § 3401 is unconstitutional.”

As to the right to trial by jury in criminal cases, although the Sixth Amendment unmistakably assures that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,” the United States Supreme Court has long maintained that somehow the Sixth Amendment does not mean what it says, in that the Constitution generally does not guarantee the right to a jury trial for a petty offense, even when (as ruled by a 5-4 Supreme Court vote) the defendant faces the prospect of multiple consecutive sentences for multiple criminal charges each of which separately carries no more than a maximum of six months of incarceration Lewis v. U.S., 518 U.S. 322, 326 (1996).

As a result of the Supreme Court’s above-discussed sleight of hand with the Sixth Amendment jury trial right for petty offenses, in the 1990’s the District of Columbia cynically reduced the maximum possible penalty on a legion of first-time misdemeanor offenses to no more than six months, in order to deprive a slew of defendants the jury trial right, when it became clear that prosecutors had a much easier job obtaining convictions without juries. Fortunately, crabbed Supreme Court rulings do not prevent states from affording greater individual liberties than those assured by the Supreme Court. For instance, neighboring Maryland guarantees a jury trial for all offenses carrying over ninety days in jail; the vast majority of jailable Maryland offenses (other than such charges as trespassing, disorderly conduct, and less serious jailable motor vehicle violations) are, in fact, jailable over ninety days, and are therefore jury triable. Moreover, both Maryland and Virginia law guarantee a de novo appeal and jury trial right in Circuit Court from District Court so long as the matter is jailable for at least one day.

Clearly, a criminal defendant, and only a criminal defendant exposed to incarceration must have the right to choose between a trial by jury or a bench trial. Yes, sometimes the chances of acquittal are better with a judge than a jury, but sometimes the situation is the opposite. Some judges, for instance, seem to have as much trouble saying “not guilty” as Johnny Depp’s Willy Wonka had saying “parents”.

New York provides a particularly nauseating example of the tyranny that results from not guaranteeing a jury trial right to all criminal defendants exposed to incarceration. Many jurisdictions in New York state have municipal justice courts. The judges often are part-time, underpaid, under-resourced, not lawyers, incompetent, and barely understanding of (nor given the funds to be sufficiently trained in) even the most basic requirements of judging, including assuring that indigent criminal defendants obtain court-appointed counsel, and avoiding communicating ex parte with any party. Some admit they rule from their gut — with the written law be damned — and that they got elected to the position because nobody else wanted the job. The New York Times‘s 2006 three-part expose of this shocking abortion of justice is here, here, and here.

The jury’s the thing that can catch the conscience of justice. Jon Katz

ADDENDUM: Today’s blog title is taken from Hamlet’s declaration that: “The play is the thing wherein I’ll catch the conscience of the king.”