Publisher's note: The author of this post is Barry Smith, who is an associate editor for the Carolina Journal, John Hood Publisher.
Bench trial an option for those charged in non-capital cases
RALEIGH Voters in November will be able to decide on a proposed constitutional amendment giving North Carolinians charged with a felony the option of waiving a jury trial and allowing a Superior Court judge to render a verdict.
Currently, the N.C. Constitution states that, in felony cases, "No person shall be convicted of any crime but by the unanimous verdict of a jury in open court." Unlike many other states, the N.C. Constitution does not provide the option of a bench trial for felony defendants who prefer that alternative.
The proposed change would allow defendants in nondeath-penalty felony cases to request in writing, or state in open court, that they waive their right to a jury trial. A trial judge would have to grant consent for the request.
While the amendment passed the state House, 104-1, and the Senate, 44-0, some criminal defense attorneys have expressed concerns about the effect the change might have on indigent defendants or others who may not be able to afford expensive legal help.
The proposal was sponsored by former state Sen. Pete Brunstetter, R-Forsyth. Lori Kroll, who was Brunstetter's legislative general counsel, said the N.C. Conference of District Attorneys approached Brunstetter and her with recommendations to increase efficiency in North Carolina's superior courtrooms. They came up with the idea of allowing defendants to waive jury trials.
Rep. Leo Daughtry, R-Johnston, who is an attorney, thinks the change is a good idea.
"Sometimes I feel that I'd be better off waiving a jury and letting a judge hear it if the issues are very complex," Daughtry said. "Sometimes it's hard to explain to a 12-person jury when a judge would pick it up automatically."
Daughtry said the intricacies of an insider trading case could be difficult for a defense attorney to explain to a 12-member jury, but much easier for a judge to comprehend. "If I had made a million when [a company] went public, I would be worried that the jury may conclude that I was guilty," Daughtry said.
Eric Rowell, an attorney in Charlotte who was a prosecutor in South Carolina, said he's concerned that if the amendment passes, the least advantaged might be the most hurt by the change.
"My primary concern is the potential for abuse," Rowell said.
Rowell notes that people waive their legal rights all the time. "They waive their right to silence; they waive their Miranda rights; they waive their right to not have their vehicle searched," Rowell said.
"I think it's legitimate to ask what are the potential costs if this passes," Rowell said. "My concern is not with people who can afford private counsel and can afford the best legal advice. My concern is the people who may take advantage of this waiver may be the people who do so not in their best interest."
Dick Taylor, CEO of the N.C. Advocates for Justice, a trial lawyer's group, said criminal defense lawyers who are members of the group were reluctant to agree with anything that would erode the right to a trial by jury. But since the option was the defendant's, they chose not to oppose the change. The group also decided not to oppose the amendment since it would not apply in capital cases.
The original bill allowed the defendant to waive a jury trial in any felony case. However, that was changed in committee to exclude death penalty cases.
Kroll said that the judge would be responsible for making sure a defendant truly preferred not going before a jury.
"The judge has to believe the defendant is knowingly and voluntarily waiving his right to a trial by jury," Kroll said. "Then it's up to the judge."
If the amendment is ratified Nov. 4 by voters, it will take effect Dec. 1 and apply to criminal offenses arraigned in Superior Court on or after that date.