Two Views on the N.C. Constitutional Amendment

In case you haven't heard, this year's general election ballot includes a referendum on a constitutional amendment allowing defendants charged with all but the most serious felonies to waive their right to a jury trial, and have a judge decide whether they are guilty or innocent instead. Forty-nine other states and the federal government allow criminal defendants to opt for bench trials.

Since coverage of the amendment has been fairly low-key, here are two views on whether to vote for or against amednment to help you decide.

The Independent Weekly supports the proposed amendment:

North Carolina is the only state in the country where defendants automatically receive jury trials. Though it’s not always in the defendant’s best interest to receive a trial by judge, we believe that they should have the choice, in keeping with the rest of the country, provided that they aren’t pressured by their lawyers to waive their jury trial rights. Vote for the amendment.

Durham-based attorney Scott Holmes, the supervising attorney of the civil litigation clinic at the NCCU School of Law and a prominent member of the defense team for Moral Monday arrestees, opposes the amendment:

I oppose the NC Constitutional Amendment allowing judges to replace juries. The prison pipeline is built around pressuring people to get through the system faster. The only leverage people caught in the system have is the jury trial. This is yet another way to allow lawyers and judges to pressure people in trouble to give up rights. It's just more grease in the prison assembly line. People sitting in jail will be told they can get a trial faster if they waive their right to a jury trial, and then judges and lawyers will decide the truth instead of a jury.

So, how will you vote on this important amendment?



The Indy says defendants  should have a choice "provided that they aren’t pressured by their lawyers to waive their jury trial rights."  But the Amendment offers no protections against that possibility.  So that word "provided" makes no sense in this context. It is NOT provided.  Even worse, the prosecutor might tie a plea deal to relinquishing trial by jury. The defendant might face more severe charges if he insists on his right to trial by jury.  

I've served on a jury in a criminal case where it was clear the evidence had been manufactued by the police.  My wife had a similar experience during her jury service.  This happens all the time.   The prosecutor had to know it was happening.  This is treated as a big game by the judicial system.  Often the only impartial determiner of fact is the jury.  Please vote against the amendment.

I already voted against the amendment, but I'm sure it'll pass anyway.  There's just too much that happens in America today to depend on "provided they aren't pressured". 

This is very much a 55-45 sort of decision for me, and I certainly respect differing opinions. I think my friend Scott Holmes, who is a member of our Legal Committee, lays out the key concern about this measure. However, I believe this Amendment won't provide much leverage to expite the process that does not already exist through the plea bargaining process.

On the other hand, a number of criminal defense attorneys on our Board believe this Amendment will produce, much more often than not, more equitable results for criminal defendants. Judges are generally better equipped to perform the difficult task of culling the inflammatory and focusing only on the relevant in delivering their verdict. And this waiver must be agreed to not only by the accused but also by the presiding judge.

Given that there are good arguments on both sides, the ACLU-NC has not taken a position on the Amendment. But, personally, I will be voting yes.

I see that those that oppose agree with the official response of the orange county GOP. G.Kahn

I agree with my friend and colleague Scott Holmes.  Why would we agree to give prosecutors another lever they can use to exert pressure on and extract concessions from defendants?  Additionally, the limited information that most voters have on this issue-- and on the discriminatory operation of the criminal justice system more generally-- highlights the importance of keeping the community generally engaged and involved in the process (through service on a jury).  Any "efficiencies" to potentially be realized cannot offset the harm of further removing the operation our criminal justice system from public oversight and participation.

Am not surprised at Mark's public opposition to the amendment. Am somewhat surprised at Orange DA Jim Woodall's forthright opposition. My basis for voting against the amendment is summarized well by Mark: "the discriminatory operation of the criminal justice system more generally," especially when it comes to young and inexperienced folk in that system for the first time. 

Woodall, as quoted by WCHL:  

He said he’s concerned about other parties being taken out of the process: the state, law enforcement, the victims, and their families.He said that defendants shouldn’t automatically be granted the decision about the nature of their trial.“There are a lot of criminal cases where it’s important for the community to have a say in the guilt or innocence of a defendant,” said Woodall.Woodall also pointed out that Superior Court judges appear on the bench on a rotating basis, which speaks to Dorosin’s point about community involvement in the criminal justice system.“More often than not, we have an out-of-district judge conducting court here in Orange County,” said Woodall. “So we would have a person who does not even live in this district – perhaps has never lived anywhere near this district – being the voice of the community.”

I also will vote against. What convinced me was Mark Dorosin's comment "...keeping the community generally engaged and involved in the process (through service on a jury)". That sentiment trumps any potential efficency argument. We need (much) more, not less participation and ownership of the justice system by the community.

I ve decided to vote NO as well, as a BOCC candidate as well.  Gary Kahn


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