Right to Trial by Judge or Jury … and Marilyn Mosby

Screen Shot 2016-07-28 at 12.00.23 PM

Marilyn Mosby is the Maryland prosecutor who elected to prosecute the six officers involved in a case that resulted in the death of Freddie gray, a suspect who was in their custody at the time of his unfortunate demise. Mosby failed to receive a conviction in either of the first four cases and on Monday, dropped the remaining charges against the rest of the officers awaiting trial.

Mosby, obviously frustrated because the officers chose to have their cases heard by a judge rather than a jury, said she wants to pursue greater prosecutorial power over whether a defendant can choose a bench trial over a jury trial. In short, she wants this particular and extremely important right taken away from all defendants, further stacking the deck against them as they face incarceration and other punishments that include the loss of even more rights.

“I have a number of ideas that I’m not yet going to talk about,” Mosby said. “I have it all written out. I have it all planned.”

Screen Shot 2016-07-28 at 12.10.08 PM

One of the purposes of affording the option of trial type is to allow a defendant to have his/her case heard by a judge rather than a jury whose opinions may be swayed by emotions and public statements made prior to start of the courtroom proceedings. A great example of possible jury tainting is the case in question, the trials of the officers accused of murdering Freddie Gray.

A local jury pool most likely saw and heard Ms. Mosby’s emotionally-charged speech announcing the charges against the officers (depraved heart murder—a deliberate act that is so dangerous that it shows total indifference to someone else’s life, murder, and manslaughter, among others). She concluded her lengthy oration with, “… to the youth of the city. I will seek justice on your behalf. This is a moment. This is your moment. Let’s insure we have peaceful and productive rallies that will develop structural and systemic changes for generations to come. You’re at the forefront of this cause and as young people, our time is now.”

Many have considered Mosby’s dramatic speech as a one offered by an angry political activist rather than that of a unbiased prosecutor.

Screen Shot 2016-07-28 at 12.10.21 PM

Potential jurors likely witnessed her appearances on national TV, in magazines, and on the stage with Prince at a concert that was billed as a Rally4Peace, an event in honor of Freddie Gray, the victim in the case. Not to mention that she’s married to City Councilman Nick Mosby, whose district includes the area where the Gray incident and much of the recent Baltimore rioting took place. She’s also friends with Gray family lawyer Billy Murphy. Murphy helped with Mosby’s campaign fund-raising.

Screen Shot 2016-07-28 at 12.15.13 PM

So yes, the defendants in the case had just cause to fear the jury pool would be stacked against them. Therefore, as is their right, they opted to have their cases heard by a judge, an option Mosby wants to change.

I’ve included the below text, especially for Maryland prosecutor Marilyn Mosby, in the event this page is missing from the law books in her office. Please note the red text below.

Seriously (I suppose Ms. Mosby is at least aware of the law), I highlighted the line in red so to make it stand out to help those who aren’t aware that this indeed is the law. The right to trial by judge, or jury, is not a suggestion or something that can be instantly altered simply because someone doesn’t like it, or because the results produced by it are not favorable to an attorney involved in a court proceeding.

 

RULE 4-246. WAIVER OF JURY TRIAL–CIRCUIT COURT

West’s Annotated Code of Maryland

Maryland Rules

West’s Annotated Code of Maryland

Maryland Rules (Refs & Annos)

Title 4. Criminal Causes

Chapter 200. Pretrial Procedures (Refs & Annos)
MD Rules, Rule 4-246
RULE 4-246. WAIVER OF JURY TRIAL–CIRCUIT COURT

(a) Generally. In the circuit court, a defendant having a right to trial by jury shall be tried by a jury unless the right is waived pursuant to section (b) of this Rule. The State does not have the right to elect a trial by jury.

(b) Procedure for Acceptance of Waiver. A defendant may waive the right to a trial by jury at any time before the commencement of trial. The court may not accept the waiver until, after an examination of the defendant on the record in open court conducted by the court, the State’s Attorney, the attorney for the defendant, or any combination thereof, the court determines and announces on the record that the waiver is made knowingly and voluntarily.
Committee note: Although the law does not require the court to use a specific form of inquiry in determining whether a defendant’s waiver of a jury trial is knowing and voluntary, the record must demonstrate an intentional relinquishment of a known right. What questions must be asked will depend upon the facts and circumstances of the particular case.
In determining whether a waiver is knowing, the court should seek to ensure that the defendant understands that: (1) the defendant has the right to a trial by jury; (2) unless the defendant waives a trial by jury, the case will be tried by a jury; (3) a jury consists of 12 individuals who reside in the county where the court is sitting, selected at random from a list that includes registered voters, licensed drivers, and holders of identification cards issued by the Motor Vehicle Administration, seated as jurors at the conclusion of a selection process in which the defendant, the defendant’s attorney, and the State participate; (4) all 12 jurors must agree on whether the defendant is guilty or not guilty and may only convict upon proof beyond a reasonable doubt; (5) if the jury is unable to reach a unanimous decision, a mistrial will be declared and the State will then have the option of retrying the defendant; and (6) if the defendant waives a jury trial, the court will not permit the defendant to change the election unless the court finds good cause to permit the change.
In determining whether a waiver is voluntary, the court should consider the defendant’s responses to questions such as: (1) Are you making this decision of your own free will? (2) Has anyone offered or promised you anything in exchange for giving up your right to a jury trial? (3) Has anyone threatened or coerced you in any way regarding your decision? and (4) Are you presently under the influence of any medications, drugs, or alcohol?
Cross reference: See Kang v. State, 393 Md. 97 (2006) and Abeokuto v. State, 391 Md. 289 (2006).
(c) Withdrawal of a Waiver. After accepting a waiver of jury trial, the court may permit the defendant to withdraw the waiver only on motion made before trial and for good cause shown. In determining whether to allow a withdrawal of the waiver, the court may consider the extent, if any, to which trial would be delayed by the withdrawal.
Source: This Rule is derived from former Rule 735.
*As always, please … no arguments about gun control, police-bashing, protestors, political rants and raves, bashing of political candidates, religion, race, and, well, the usual. Oh, and please do save the bad language for other pages. We have kids who visit this page and I’d like to keep the site as kid-friendly as possible. Besides, I’m extremely weary of seeing and hearing the “F” word. But that’s just me. Thanks!
Read more
New DOJ Guidelines: It’s Called Forensic Science, NOT Forensic Opinion

333BUTLER1

Well, it actually happened. I’ve lived long enough to say I’ve seen it all when it comes to our government controlling what people may or may not do and say.

The federal muzzling, if the plan moves forward, and we all know it will if they want it to, includes what experts are allowed to say when testifying in court. Or, more importantly, what they’re not permitted to say during those legal proceedings.

The Department of Justice recently spent a ton of time and resources to draft a guidance regarding courtroom testimony of government experts, such as those folks employed by the three-letter agencies—FBI, etc.

But…

At first glance, this sounds a bit over the top and perhaps a trampling of free speech. However, when it comes to sending innocent people to prison based on the mere opinion, not scientific proof, of a technician in the employ of a law enforcement agency, well, this idea may not be such a bad thing after all.

Remember, when experts exaggerated the fortitude of hair and bite mark evidence? It was, after all, their testimony that, for decades, led to the convictions and imprisonment of several people who were later exonerated and released.

Ray-after-speaking-event

Ray Krone was exonerated after spending 10 1/2 years in prison. Three of those years were served on death row. Ray’s conviction was based on faulty bite-mark evidence.

Click the link to read more about Ray’s incredible story.

Billboard-on-I-83-Harrisburg-PA

Here are only a few of the new DOJ proposed guidelines…the things experts may NOT say when testifying in criminal and civil proceedings.

Examiners/technicians/scientists may NOT:

  • state the dose of a drug or poison based on analytical findings in post-mortem samples.
  • state an opinion that a drug or poison finding in hair is proof of ingestion of the drug or poison unless a metabolite that is unique to ingestion is also identified…
  • state an opinion that an individual was impaired based on a drug concentration in a urine or hair sample.
  • state or imply that the methods used in performing serological examinations have error rates of zero or that they are infallible.
  • state or imply that two friction ridge prints originated from the same source to the absolute exclusion of all other sources.
  • state that a shoe/tire is the source of a questioned impression to the exclusion of all other shoes/tires because all other shoes/tires have not been examined.
  • state or imply that a fiber came from a particular source to the exclusion of all other sources.

Remember, this is only a small sampling of the things experts may NOT say in court. Believe me, the list is long and there are more on the way. This sort of makes one wonder if, in the future, there’ll be a need to call experts to the stand.

What do you think? Should experts be allowed to offer their opinions based on scientific findings, even if it means an innocent person, such as Ray Krone, could wind up on death row?

Should you wish to express your views about these proposed guidelines, you may do so directly to the Department of Justice by clicking HERE.

*Source – DOJ, PROPOSED LANGUAGE REGARDING EXPERT TESTIMONY AND LAB REPORTS IN FORENSIC SCIENCE

Read more
What is a Grand Jury?

Basically, a grand jury’s function is to control the start of prosecutions for felony cases. In 1215, the grand jury was established to keep a tight reign on the king, preventing the possible despotic abuse of his powers against the citizens.

Each state has its own laws, rules, and regulations regarding court systems. However, the goal and end results are the same…to provide a fair trial to the accused. For the purpose of this article, though, we’re speaking of Grand Juries in the Commonwealth of Virgina, simply because that’s familiar to me. However, the process is basically the same in the areas/states using the Grand Jury system.

In Virginia, criminal court proceeding normally begin with an arrest, usually by warrant, which is a formal, written accusation stating that the person named has committed a crime.

– Crimes are divided into two classes—misdemeanors and felonies. A misdemeanor is punishable by a sentence of up to 12 months in jail and/or a monetary fine. Felonies, the more serious of the two crime classifications, are punishable by confinement in the state penitentiary (remember, we’re only talking about state and local courts, not federal offenses).

– Offenders arrested for misdemeanor offenses are brought to trial in District Court (lower court), where he/she is tried before the district judge. There is no jury in District Court. The district judge hears the case and makes one of two decisions—not guilty, which results in dismissal of charges, or guilty, which results in imposition of sentence.

A District Court judge has no authority to try felony cases, only misdemeanors and traffic cases.

If the accused is charged with a felony offense, he makes his first court appearance in the lower court where a district judge conducts a preliminary/probable cause hearing to determine whether or not enough evidence exists to try the case.

Both the prosecutor and defense present evidence during preliminary hearings. Keep in mind, though, these hearings are not trials, therefore not all evidence is presented, nor are all witnesses or experts called on to testify.

If the district/lower court judge finds that a felony has been committed, along the necessary evidence to back it up, then he/she sends the case to Circuit Court (high court) for trial. Sending a case to the higher court is called “certifying” the case (Judge I. R. Mean certified the case against Ima Crook).

– Once a case has been certified it goes to the Regular Grand Jury, whose duty is to once again determine whether or not there is probable cause to believe the person has indeed committed a felony. The defendant may or may not be released on bail while waiting for the Circuit Court trial to begin.

After a case has been certified to the Circuit Court (the high court), the prosecutor (Commonwealth’s Attorney in Va.) prepares a “bill of indictment,” which is a formal document accusing the defendant of the felony.

Prosecutors may elect to bypass the lower court entirely by bringing the case/bill of indictment straight to the Grand Jury. This step can be done in secret to avoid “tipping off” the accused. This is often done in major cases involving multiple offenders, such as drug dealers, child porn operations, etc. When the indictments are “handed down” police officers begin rounding up the accused criminals. These arrests are often carried out simultaneously in large multi-jurisdictional/agency sweeps. Again, this is done to avoid tipping off co-defendants/conspirators.

Following an indictment and subsequent arrest, the accused is arraigned—charges are formally read and the accused enters a plea of guilty, not guilty, or nolo contendere (no contest).

Grand Jurors are selected randomly (voter registrations, DMV, etc.) by the clerk of the court and are summoned to appear by the sheriff (serving jury summons is one of the duties of a sheriff, but not a responsibility of a chief of police). In Virginia, Grand Jurors serve, as needed, for a term of six months (they do not meet every day, or even every month). The Grand Jury consists of 5-9 jurors.

Before the Grand Jury begin their duties, the judge reads a list of instructions of their official duties and rules. This reading of instructions is called “Charging the Grand Jury.”

The Grand Jury’s purpose is to determine whether or not there is sufficient probable cause to try the accused for the crime in question. The Grand Jury does not determine guilt or innocence.

Grand Juries normally meet in a jury room, not in open court.

Once in the jury room, the members of the Grand Jury begin hearing testimony from witnesses. Witnesses are called one at a time and are questioned by the members. No attorneys and no judge. And, only witnesses for the prosecution are called before the Grand Jury. The defense is not permitted to present their case at this time.

When all testimony is heard, the Jury then votes. If four or more Jury members vote yes, then it has been decided that they will issue a “true bill,” meaning enough evidence/probable cause exists to proceed with the trial. A vote of “not a true bill,” means the jury did not find an ample amount of probable cause to proceed with a trial at that particular time. However, it is rare to see a Grand Jury return a “not a true bill” finding since all witnesses are prosecution witnesses.

– Grand Jury proceedings are held in secret.

*Remember, rules and regulations governing Grand Juries vary from one state to another. Also, please remember that the above information is basic. There are, as always, exceptions.

 

Read more
Plea Bargains: Voluntary, or Legal Coercion?

The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The Constitution further guarantees that the accused will have the assistance of counsel and may be convicted only if an impartial jury of his peers unanimously determines that he is guilty beyond a reasonable doubt.

So what about plea bargains? There’s no judge or jury involved in that process. Instead, a plea agreement is reached when both the prosecutor and defense sit down and hammer out a really good deal for both sides, right? Well, not quite.

A plea bargain is about as one-sided as it gets, and the side that wins nearly every single time is that of the prosecution. In fact, less than 3% of all federal criminal cases make it to trial. This translates into a whopping 97% of all federal cases being decided by a plea bargain. And, it is the prosecutor who decides how much time the defendant will serve behind bars, not a judge or jury of anyone’s peers.

The defense is at a huge disadvantage at the onset of the process because prosecutors hold all the cards—secret grand jury testimony and evidence, crime scene evidence and lab test results, witness statements, and the authority to charge the accused with the most severe offense he believes he can prove…UNLESS the defendant agrees to plead GUILTY in exchange for a charge of a lessor offense, which would result in serving far less time in prison than had he been found guilty of the more severe charge. In many, if not most cases, “far less time” could be a decade or even more.

The way a federal plea bargain works, in short, is like this.

1. Police conduct an investigation and hand over their collected information and evidence to a prosecutor.

2. The prosecutor presents his/her case to the Grand Jury who almost always issues a “true bill,” meaning there is enough evidence/probable cause to proceed with the trial. After all, the only people testifying before them are witnesses for the prosecution. The defense is not a part of the Grand Jury process.

3. The suspect is arrested and incarcerated. A favorite prosecution trick is to have agents/officers make the arrest on a Friday afternoon. This is so the suspect will have to sit in jail throughout the entire weekend, until judges/magistrates return to the bench on the following Monday to hold/conduct a bond hearing (holiday weekends are a bonus because courts are also closed on Mondays). This provides the defendant a bit of eye-opening time behind bars before having an attorney appointed to their case. When Monday morning finally rolls around, many defendants are willing to do or say almost anything to return home, including agreeing to a quick plea deal.

4. Bond is either set or denied.

5. Prosecutor and defense attorney meet either in person or by phone.

6. Prosecutor offers a deal—a lessor charge if the defendant agrees to plead guilty, or face the top charge possible, along with the standard obstruction of justice for not accepting responsibility (not pleading guilty) with as much time in prison as the law allows. Obstruction, by the way, could result in an additional sentence of ten years. And that’s on top of the time for the original charge.

7. Defense attorney presents the “deal” to his client—either plead guilty to the lessor charge and serve time in federal prison for ONLY three years, for example, or refuse the deal and face the possibility of being found guilty anyway, but receive a sentence of twenty years in prison. And, this deal is open for discussion only at that moment. There’s very little time given to consider it. It’s either now or never in most cases. Of course, prosecutors will most likely accept a deal at a later time to avoid taking the case to trial, but the first offer is always the best offer. The longer the wait the more time the defendant will have to serve in prison.

8. The deal is almost always accepted. As I stated earlier, this is so in approximately 97% of all federal criminal cases, including deal acceptance by defendants who are innocent of the crimes for which they’re charged. These folks plead guilty because they’d rather agree to a shorter time in prison rather than face decades behind bars, or, in some cases, the possibility of receiving the death penalty…for a crime they didn’t commit.

In 2012, the average sentence for drug offenders (in federal court) who agreed to plea deals was five years and four months. Defendants who rolled the dice and went to trial were sentenced to an average of sixteen years. It’s a “no-brainer” decision and prosecutors know it and they rely on it. And, a plea deal typically includes a “no appeal” stipulation.

A fair and voluntary system? What do you think? Before you answer, consider this. Of the 2.2 million people in American prisons, over 2 million of those individuals are there as a result of a plea bargain devised by a prosecutor who also determined the amount of time the defendant was to serve behind bars. No jury. No judge. All prosecutor.

Some have said “having our day in court” is a thing of the past. What about you? Do you agree with the current method of plea bargaining?

 

 

Read more