How COVID Broke the Criminal Courts – Blog 1 (No Jury Trials)

August 5, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Whether we like it or not the Coronavirus pandemic has been a transformational event – and its impact on the Courts and criminal law practice is no exception.  Some of it will be temporary and some of the transformation will be here to stay.

broken-bulb

Big Picture View of the Criminal Court System

Think of our court system as a pipeline with water going through it.  Cases go in on one end, and are channelled in certain directions to be resolved either by plea, dismissal or trial.  One of the Courts’ central roles is to simply move the cases through the system.

Certainly, the Courts have vital roles in the outcome – but as I explain to clients frequently – the Courtroom has two tables, one Judge and one witness stand.  They can’t weigh in on all 2,500 cases they’re assigned at one time.

The Role of the Jury Trial in the Process

Trial would be like the end of the water line which would typically spit the unused water out and be done with it.  It is the mechanism which closes cases the parties can’t resolve on their own.

But another crucial aspect of a Jury trial is this — parties typically also want to avoid them.  They’re uncertain.  They can be expensive for someone charged with a crime.  They can inflict real pain on a person standing trial or a witness in the trial.  Prosecutors won’t admit this – but they get paid the same whether they’re sitting at their desk or trying a case and many of them don’t want to put in the effort of a trial.  So trials also serve the critical function of pressuring criminal defendant and the prosecutor to come to some sort of agreement short of a trial.

Also there are some cases which simply have to be tried in the criminal world.  Take a Continuous Sexual Abuse of a child case where the Defendant serves 25-years to life with no parole if convicted.  If the Defendant is over 50 years old – there is simply very little reason for them to plead guilty in any event.

Pandemics and Jury Trials Don’t Mix

We can’t have typical jury trials in a pandemic.  It’s not safe and there is really no substitute.  Jury trials via zoom or other platform almost certainly violate rights to face your accusers in open court.  The jury system was also predicated on an assumption the jury can get to the truth by watching witnesses in person.

The System is Temporarily Out of Service

Not only is the mechanism we use to resolve cases not working during the pandemic — more importantly parties aren’t feeling pressured to resolve cases.

Prosecutors are currently making plea offers based on what they think a fair outcome would be for a case based on what they’ve seen as fair results in the past.  But they ignore the Defense has very little incentive — in many circumstances — in pleading guilty.

A Defendant on bond (and the vast majority are) doesn’t have to worry about upsetting a probation officer and going back to jail on a misdemeanor case.  On a felony case where the State thinks 8 years of prison is a fair offer — a defendant on bond is rarely going to sign up for that where the alternative is living a relatively normal life for another year.

Prosecutors and criminal defendants aren’t on the same wavelength with regards to resolving cases and the reason is the pressure-mechanism isn’t working.

Why Don’t Judges Just Try to do Jury Trials Anyway?

Judges could try to force the issue – but they fear making the matter worse by utilizing resources to try a case via Zoom only to have the Court of Appeals making them re-do the trial when the pandemic is over.

The Fix

The system will get back to normal once cases begin going back to jury trials.  When that will be is another issues.  But when jury trials do begin to crank up again — just like a water-pipeline with built-up pressure — you can expect excess pressure there too.

*Jeremy Rosenthal is Board Certified by the Texas Board of Legal Specialization in Criminal Law.  He is Currently Recognized as a Texas Super Lawyer by Thomson Reuters.

 

 


Jury Trials vs. Judge Trials

October 14, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy F. Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

Here is the equation as to how any criminal trial in Texas works.  The proper law + the facts = the verdict.

Judges always determine the appropriate law to apply.  Then the facts are applied to the law to reach the verdict.  A jury determines the facts, but if both parties agree — then the judge can determine the facts instead.  The latter is a known as a “bench trial” or “trial by Court” which is commonly known as a “TBC” in the courthouse.

The U.S. Constitution guarantees a criminal defendant a right by jury trial.  Generally speaking its the defendant’s choice whether to choose a judge or a jury.  Texas prosecutors have recently asserted that the State of Texas also has a right to a jury trial as well… and therefore, they argue, that the only way the parties can have a TBC is by agreement.  Their assertion is largely unchallenged even though it’s legally unclear.  Practically speaking, then, both parties agree to waive a jury.

Here’s a practical example of how a jury trial works — in an assault case where the defendant claims self-defense, the Judge will conduct the trial, impanel the jury, and decides what evidence is legally admissible.  Once the evidence is concluded, the judge will decide (1) if the evidence legally sufficient to support a conviction; (2) if the defendant legally raised self-defense; and (3) what jury instructions to give so that the jury understands how to decide the facts.  The jury then deliberates and reaches their verdict based on the jury charge.

For a TBC, the Judge merely listens to all the evidence, rules on objections, and then renders a verdict — often without much deliberation.

There are tons of variables to consider if you’re presented with the option of waiving a jury and asking a judge to decide the case.  The Judge’s history and reputation and obviously the strength of the case must be considered and weighed against the local jury pool.

Judges prefer TBC’s because they’re far more efficient than jury trials.  They’re far quicker, generally less formal, and don’t involve having to manage a jury pool.  Just because judge prefer it, though, doesn’t make it the right choice.

After all, a criminal defense lawyer isn’t in the rights waiving business!

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any case you should consult an attorney directly.