Following the acquittal of Shawn Bell’s killers, one of the lawyers pointed out an interesting discrepancy between the New York and Federal criminal procedure systems: in New York, a criminal defendant has a right to a jury trial, and can waive that right. In the Federal system, however, the United States also has a right to a jury trial, and both parties must waive their rights in order to have a bench trial.
Ordinarily I don’t like criminal procedure rights that flow to the government. The government has enough tools in their belt as it is, and procedural rights are a check against government overreaching. The right to trial by jury, in particular, is a right to be judged not by the government but by the people, and was originally viewed as a necessary tool against government oppression.
When public officials are on trial for crimes under color of their office, they like bench trials for exactly the same reason that ordinary criminal defendants tend to be suspicious of them: the judge is part of the government, who identifies with other government officials. Most judges tend to presume police officers are trustworthy public servants.
Therefore, I propose the following: all cases alleging official misconduct (be they criminal actions, Bivens actions, or § 1983 actions) must be tried to a jury, and neither the plaintiff/prosecutor nor defendant can waive that right. The right to a mandatory jury trials in this case would not be a right that is personal to a party, but a right of the people to have the community be the judge of its officials.
Thoughts? Is this a terrible idea? Brilliant? Use the comment form!
Tags: civil liberties · cops · courtwatching3 Comments
At first glance, this sounds like a wonderful idea. Police/defendants have repeatedly sought refuge by hiding behind judicial robes. It is obviously to their benefit to avoid a jury’s wrath.
The problem is the proverbial slippery slope. Who can anticipate what kind of mischief will result from this proposed tinkering?
Personally, I am glad to see the cops acquitted in state court. A federal trial is all but assured and with the pro-prosecution rules of evidence, convictions seem certain.
In the end, the federal sentences handed down will make these lousy cops wish they had been convicted in state court. I hope they all are raped, beaten, tortured and eventually killed while in custody.
I’m ordinarily concerned about unintended consequences of constitutional tinkering as well, but I think here the slope may not be all that slippery, since some jurisdictions already have effectively-mandatory jury trials in all cases (except for the very rare cases where the prosecution and defense both agree on a bench trial).
There may even be a jurisdiction out there that has literally-mandatory juries in all cases, but I’m too lazy to research it myself.
What’s sauce for the goose is sauce for the gander.
Citizens are entitled to trial by a jury of their peers. The original point of this was that the jurors would be more able to understand the circumstances of the defendant (or parties to a civil suit) than the judge. Specialist juries were formed for specific trials (e.g. a jury of merchants, a jury of neighbors, a jury of women).
Well, perhaps officials who are accused of misdeeds are also entitled to a hearing before an adjudicator who is his peer, and for the same reasons?
Of course, our modern practice of selecting juries is 180 degrees away from this — rather than selecting juries of people who know the accused, or are familiar with the factual matters at issue, we systematically eliminate such people from juries!