Raleigh, N.C. — Defense lawyers in North Carolina are divided over a constitutional amendment on Tuesday's ballot that could change how some criminal defendants are tried.
The North Carolina Constitution requires that any felony defendant who pleads not guilty be tried by a jury. That requirement was meant to safeguard the rights of the accused.
However, some defense attorneys say some defendants may be better served by having the right to waive a jury trial, pleading their case in a bench trial before a judge instead.
If the amendment passes, defendants charged with a non-death-penalty offense could agree to give up their right to a jury trial as long as the judge in the case agrees.
Zac Bolitho, an assistant professor at Campbell University's Norman Adrian Wiggins School of Law., said all 49 other states in the country allow bench trials, as well as the federal government, making North Carolina unique in this case.
When the amendment passed in 2013, legal experts in both parties in the legislature argued in its favor, saying it could help courts clear lengthy backlogs and potentially save money.
Bolitho agreed bench trials are faster than jury trials and generally cost less.
"Juries are expensive," he said. "When you bring in a jury to do a jury trial, you have to pay the jurors, and you have to pay all of the individuals who deal with the jurors."
However, he said, most felony cases in North Carolina and nationally never go to a jury. They're settled by guilty pleas, not trials. The waiver "may have some benefit, but I’m not sure it’s going to be a huge benefit in terms of reducing the backlog," he said.
Durham defense attorney Daniel Meier is strongly opposed to the amendment. If it passes, he thinks prosecutors will pressure defendants to give up their constitutional right.
"I can imagine a situation where they say, 'Waive a jury trial, or we’re going to indict you as a habitual felon. Or waive a jury trial, or we’re going to add these charges,' because they already do it when it comes to pleas," Meier said.
He pointed out that district attorneys in North Carolina, unlike in many other states, control the scheduling of court cases.
"They can put certain cases in front of certain judges," he said. "The DAs have an absurd amount of power on controlling the pleas, controlling the calendar. This just gives them one more hand."
Meier also worries that judges will be under political pressure to rule against defendants in controversial or sensational cases, like those involving alleged sexual abuse.
"Do you really trust an elected judge to rule on some of the messier-type cases?" he asked, citing negative ads run against Supreme Court Associate Justice Robin Hudson in her re-election campaign. "She’s being attacked for a decision she made. I can just see that happening."
But Meier's fellow Durham defense attorney Kerry Sutton sees the amendment very differently.
Sutton believes some defendants may fare better in front of a judge than in front of a jury, especially in complex or controversial cases.
"[Say] we have a really technical defense, or we’re relying on stuff that a jury might not appreciate. That would be an opportunity. If you’ve got a client who’s not going to make a good witness for himself, whether it’s taking the stand or sitting at the table, that would be an opportunity," Sutton said. "Juries are human. They’re going to make decisions based on all kinds of things that have no business coming into a jury trial."
Sutton called "offensive" any suggestion that the bench trial waiver would prompt "judge-shopping" by either DAs or defense attorneys, adding that there's no evidence bench trials are being abused in other states.
The amendment, Sutton said, would not take away a defendant's right to a jury trial. It would simply offer another option.
"If people would sit back and think, 'If it was me sitting in that defendant's seat, would I want to have this choice?' I think that’s where the tipping point is," she said. "I think, if more people thought about it that way, they’d say, 'Yeah, I’d like to have all the choices that my professional counsel gives me.'"
Neither the North Carolina State Bar nor the state association of trial lawyers has taken a position on the proposal.
The amendment is at the bottom of the ballot, under the heading "Referenda."