All Defendants in Washington DC Should Have the Right to a Jury.

​The right to a trial by jury is a hallmark of our criminal justice system.  Article III section 2 of the Constitution says “The trial of all crimes, except in cases of impeachment shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed.”  In accord with the Sixth amendment “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where the crime shall have been committed.”  This mandate for a right to a jury trial in the United States Constitution is flagrantly violated across the country.  Washington DC is particularly an egregious example of it.

In the nation’s capital, a defendant does not have the right to a trial by jury unless the defendant is charged with an offense that carries a maximum sentence higher than 180 days in jail or a $1000 fine.[1]  It isn’t difficult to imagine how much destruction can occur to someone’s life if they are removed from society for 180 days.  Such individual likely won’t have a job anymore after a 180 day absence and may lose their place to live.  There is a plethora of study into the other various collateral consequences of a criminal conviction.  To increase the potential injury, the DC Code allows the individual to be charged with up to four counts each carrying a maximum of 180 days in jail, and the defendant still would not have the right to a jury.  The defendant can be sentenced, if convicted, in a bench trial (a trial where the judge decides if the defendant is guilty) to the maximum for each count to run consecutively.  This means a defendant in one case charged with only misdemeanors can be convicted and sentenced up to 720 Days in jail and a $4000 fine without ever seeing a jury of her peers.

This is intentional.  Almost every misdemeanor in Washington DC has a maximum of 180 days in jail and a $1000 fine.  The blatantly obvious purpose is to deprive a defendant of a jury.  In the instances where some misdemeanors carry a sentence of a little over 180 days, such as “threats”, the United States Attorney’s Office charges these defendants with “attempted threats” instead, to purposely avoid the defendant having the right to a jury. Jones v United States, 124 A.3d 127 (2015). In DC, when “attempt” is tacked on to a misdemeanor, the maximum becomes exactly 180 days in jail; the perfect amount to deprive someone of a jury.[2]

​The DC Council has occasionally made some attempts to address this.  One of which is a specific statute that gave a defendant the right to a jury trial when charged with assault on a police officer.  DC Prosecutors outsmarted them, however, by only charging defendants with simple assault (maximum 180 days and a $1000) even if the assault is on an officer.  There are no rules against this. The DC Court of Appeals has actually upheld it. Coleman v United States, 194 A.3d 915 (2018).

Why do prosecutors do everything they can to avoid a jury trial?  Bench trials are more conducive to mass incarceration.  Jury trials take much longer.  A defendant’s individual case gets exponentially more attention during a jury trial than her case otherwise would get with a bench trial.  Picking a jury takes time.  During a jury trial, The Court, acting as a referee, has to carefully consider what is fair for the jury to know and not know.  Jury instructions have to be formulated to give to the jury to explain to them what the law is.  When the jury is the fact finder, the jury doesn’t even know if the defendant is currently in jail or not.  The Court has to make sure the defendant puts on a suit and is never seen by the jury with an orange jumpsuit on.  In a Bench trial, prosecutors don’t have to give an opening statement and explain what their evidence will show.  An opening statement is mandatory in a jury trial.
 In a bench trial, the judge acts as both the referee and the factfinder; this can be problematic for a number of reasons.  The judge will know the defendant’s entire criminal history.  This information can be extremely prejudicial, but the law expects the judge to separate information like that from their minds when rendering a verdict in a bench trial.  The judge will also know about evidence that has been suppressed because the police or prosecutors violated some rules or the constitution with respect to that evidence.  A jury would obviously never know about it, but the judge would.  If the police tortured someone until they confessed, a jury would never hear about that confession.  The judge would have full knowledge of it, but would be expected to pretend it doesn’t exist when deciding whether the defendant is guilty

​Juries acquit more than judges. There has been some scholarly research into this. “Each disagreement was in the same direction: the jury was far more likely to be more lenient than the judge. Thus, in 87% of the disagreements about guilt or innocence, the jury was more lenient than the judge was, and in 79% of the disagreements arising from a hung jury, the jury was more lenient than the judge.”[3]
 
It is so much easier to continue mass incarceration if the right to a jury is limited as much as possible.  Juries are viewed as clogs in a well oiled machine that has locked up people in mass. It is only human to begin to see defendants as mere numbers when tens of thousands pass through the courthouse.  It is helpful when a jury with fresh eyes can look at a case, deliberate and reach a fair verdict.
 
 


[1] DC Code § 16–705(b)

[2] DC Code § 22–1803.

[3] Amy Farrell, Daniel Givelber, Liberation Reconsidered: Understanding Why Judges and Juries Disagree about Guilt, 100 J. Crim. L. &Criminology 1549 (2010)

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Brandon M. Burrell Esq.