Stealth Constitutional Amendment Could Bring Big Changes

This fall, North Carolina voters will decide whether to amend the state constitution. The proposed amendment would allow, for the first time, bench trials for felonies in superior court. Neither the media nor advocacy groups have paid much attention to the amendment, so almost no one seems to know that it is on the table. For that reason, I think of it as the stealth constitutional amendment. Despite the amendment’s low profile, allowing felony bench trials would be a major change.

The change could be for the better. For example, bench trials might save money, and some defendants — those with technical defenses, or those who are unpopular in the community — might prefer a judge to a jury. The 49 other states allow bench trials, so the amendment would bring us in line with the national norm.

But the change could also be for the worse. Once waiver is possible, defendants might be pressured to waive their right to a jury trial. Defendants with prominent and well-connected lawyers might get unfairly favorable treatment. Also, contrary to the majority rule in other states, the amendment doesn’t give the prosecution the right to insist on a jury trial if it believes that a bench trial would be inappropriate.

In an effort to draw some attention to the amendment and to provide some information about its possible benefits and costs, I worked with School of Government law clerk Komal Patel to prepare a report about it. The report is available here as a free PDF. In typical School of Government fashion, it doesn’t take a position on the amendment but it contains quite a bit of information about its potential impact and the practice in other jurisdictions. It’s written to be accessible to voters who aren’t very familiar with the criminal justice system, so please pass the link along to anyone who may be interested. As always, feedback and comments of all kinds are welcome.

25 comments on “Stealth Constitutional Amendment Could Bring Big Changes

  1. As I read the proposed amendment, it seems (at least that the General Assembly may provide) a written waiver (as there is no record) in district court would prevent appeal of misdemeanor convictions to superior court… And I wonder if this could (or should) become part of any plea arrangement in district court.

  2. Speaking of other things the other 49 states do that North Carolina does not: how about placing calendaring authority in the hands of the court, and not the prosecutor? Prosecutorial docket control, especially combined with NC’s near absence of speedy trial rights, creates a shameful inequity. When will the legislature fix this grossly unfair aspect of our criminal justice system? Or at least put it up for vote as a constitutional amendment?

    • I agree with the need for a change in calendaring and take power away from the prosecutors.

      I’d also like to see judges who remind jurors of their right to jury nullification. It’s not just about marijuana, which seems to get the press. Jury nullification was used to bring acquittals in fugitive slave cases and also for conscientious objectors in the Viet Nam era.

      NH made it law fairly recently.

  3. The NC Constitution is a piece of trash forced on a defeated people. It has no real rights for the populace. We need a new constitution top to bottom.

    • The NC State Constitution does a fair job of enumerating specific ‘unalienable rights secured to the Citizens’, as well as those un-enumerated (Art. 1 Sec. 36).

      The problems are; 1 Most People have no understanding of the difference between a qualified privilege (Referred to as a right), and an ‘unalienable right’ secured by the law. The former is a privilege created by our legislatures, and can be given and taken at their will. The later is one that all People are born with and is secured by law and cannot be lawfully be abridged or denied by any majority decision. 2. Is that as a rule ‘justice’ is unaffordable to the average Citizen. The practitioners of Law have paid dearly for their ‘qualified privilege’ of practicing law, thus, their services don’t come cheep which is somewhat understandable.

      I would have to agree that by all appearances and the current practices that Art. 1 is real close to a cruel joke at best.

  4. So what will be the difference between Superior and District courts? The DWI lawyers, who are the most “prominent and well-connected” in District Court, will just transition to felonies in Superior, having donated substantial amounts to the Superior Court judges’ campaign purses. The State can’t object, so there you go.

  5. I don’t no mch about the law, but I do no, some felonies are intentional, deserve some punishment but some are made out of being young , making mistake they wouldn,t have made a little older , some are set up,s by crooked sherriff,s in these one red light towns ,in NC if you have a distribution charge arising from ,being set up,because you gave someone 3 Darvocet for a bad tooth ache ,but later found it was a set up by the law to the give the person with the toothache a lesser charge, the person set up is elderly and disabled ,but because that person took the Darvocet to her I/2 mile across Ga. line,and lives in NC, that person have many severe health problems ,lves on 541$,her spouse 541$,but can never get help from foodstamps again. when will someone look at that law,if you have a dog and don’t feed it that’s a felony,are we not better than dogs,this is probably irrelevant to what your talking about , but they get these ideas in their head ,and don’t think about the people it will hurt or ruin their lives,s …take a look at the felonies, the circumctances, don’t just pass stupid laws cause no ones paying no attention because of the major stuff going on , I am a very good person,i never intentionally hurt anyone ,at the time I didn’t no it was a crime to give someone in severe pain something for it ,hope this is not out of line ,it ,s early,if this is irralavent ,please disregard,i,ve been angry a long time at this messed up system we have ,and the way they fill up the jails with H or I felons , give people a break, were only human,,,sincerely LJM

    • The don’t consider the ‘spirit’ of the law. It makes for easy brownie points, and promotions. and pay raises, Bigger brighter, shinier stars, to pin on their chest, to bust grandma trying to help their grandchild with a severely infected tooth or something. .

  6. and I would like to ADD the Judge that scared me in to a plea bargain saying I was guilty or do 10 yer,s in prison with a bad heart and diabeties, he later on , Pulled a GUN in court,told the lady , she might as well shot her attorney , he was killing her case,every one he was over , should have gotten they,re case thrown out ,he was well known Judge in Ga. I,m sure you heard of it ,Judge Barrett,he stayed out of site retireing before they could find him,was the way I read it in the news paper,whos gonna fight for the lower class, the ones the world has forgot ,we hAVE LIVES TOO,THEY GET RUINED BY BIENG AT WRONG PLACE AT WRONG TIME ,OR BY BIENG UNEDUCATED ABOUT THE lAW

    • America as a rule, and the State has the best JUSTICE MONEY CAN BUY. IF you don’t have deep pockets don’t expect the equal protection of the laws or justice in this nation.

  7. Thank you Jeff for bringing this to my attention.

    I have mixed feelings about it. As a general rule the majority of empaneled jurists have absolutely no understanding of American Jurisprudence or their ‘unalienable rights’ secured by law or those of others. This being the case they are easily swayed and influence by both defense counselors and prosecutors putting on a good act which leads to a very dangerous situation and presidents being established.

    The trail by jury was secured to the People so that the empaneled jurists could hear and consider both the Law and Facts.

    “The jury has a right to judge both the law as well as the fact in controversy”. John Jay, 1st Chief Justice US Supreme Court

    “The law itself is on trial as much as the cause, which is to be decided”. Harlan F Stone 12th Chief Justice US Supreme Court 1941

    “The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instructions of the judge”. . . US V. Dougherty. 473 F. 2nd 1113, 1139 (1972)

    The nature, cause, and ‘spirit of the law’ all needs careful consideration. As a rule the defendants peers in the community have no understanding of this.

    If the primary reasoning behind this is cost effectiveness maybe requiring the ‘District Courts’ to be Courts of Record. Of course this would only cover misdemeanors but, a lot of cases that originate in the District Courts (with no records), are appealed to the Superior Courts of Record for this very reason.

    I suspect that there is a whole lot of ‘favorable judge’ hunting in the District Courts by both the prosecution and defense with very vague and ambiguous records of continuances ETC recorded on the outside of shucks. Shucks with files from other People’s cases, missing signed orders of judges, no real records of who did what when leading to years of continuances for one bench trial to get appealed to ‘trial DE novo’ in a Superior Court of Record.

  8. This makes me worry about cases where I have a child victim. For example, if a child is prepped for trial before a judge after a defendant has waived a jury, and then the defendant revokes his waiver of a jury trial at the last moment, would the prosecutor be entitled to a continuance? Obviously, in all the states that allow waiver of jury only with consent of the prosecutor, this is not an issue. But I could easily imagine a scenario where this is exploited by a defendant to scare or intimidate a child victim.

  9. Kudos to Jeff and his team for once again providing such a valuable public service and bringing some much needed attention to this issue. Pro or Con, my biggest concern from the outset has been that there has been almost no reporting on this issue and the majority of voters will be voting on this without having considered it at all prior to walking into the voting booth. Of course, this could be said for voters voting on any number of issues/candidates, but I’ll leave that to the other school of government blogs to address.

    • A great big here here on that. The voters are rarely ever fully informed. I suspect that it could be by design.

  10. The proposed amendment essentially allows a defendant to inject an elected official, (Superior Court Judge) into the plea bargaining process. I can think of a dozen ways this could play out and not one of them furthers the interest of justice.
    Question-Can the defendant change their mind? How many times?

    • Isn’t the District Attorney (an elected official) already a major part of the plea bargaining process?

  11. There needs to be a way for the prosecution with just cause to request a trial by a jury. Bench trials in District Court many times resemble a circus where judges apply the law contrary to established case law, refuse to follow statutory guidelines for per se rules, and show favoritism to certain defense attorneys. I don’t necessary think this will happen as frequently in a Superior Court Bench trial mainly due to it being a court of record and due to the seriousness of the crimes combined with more experienced prosecutors that actually make appropriate arguments and appeal when necessary. Even in a jury trial, judges have a strong ability to control what a jury hears and their legal instructions are often just as important as the jury’s ultimate decision. I also find that Superior Court Judges tend to be better with analyzing technical issues in compliance with established precedent and actually take the time to research the law.

    Overall, I am fine with allowing Superior Court bench trials as long the prosecution can initiate a jury trial with just cause. Most Superior Court Judges in this state are excellent stewards of justice; however there a few that constantly appear in the news getting overturned by the appellate courts that operate with an extreme bias against the prosecution and the police.

    • In my experience that 6th-from-the-last word should be “for” rather than “against.”

      • In my experience I’ve encountered way more anti-police/prosecution bias in District Court than favorable results.

        For instance, I’ve seen a defendant testify in an RDO case where he physically pushed a witness to a shooting into a vehicle and said “you don’t need to talk to the cops,” say “I don’t remember doing that, but if i did, I meant no disrespect,” which resulted in a not guilty despite the multiple officers’ testimony stating the defendant tried multiple times to remove a witness from the scene, who was voluntarily talking to the police.

        I’m sure it varies by county, though, just as there are some judges who are more favorable to police and some who are more favorable to defendants.

        My primary concern is the judge shopping. It already happens in district court. As long as we have defense attorneys funding judges’ campaigns there will always be justice for sale.

    • In this county the superior courts keeps the same sort of records they keep in district court. Folders full of un file stamped garbage, subpoenas etc. Things there today may not be there tomorrow. Incomplete forms etc. I just went and paid $20 for 3 different files supposedly a complete copy of the entire record. There is one file stamped application for a petition on which is a two sided instrument and the back side is blank. After 4 years plus of so called records not a single motion or brief and any file over 20 continuances at the district level, and an appeal to superior. NOT ONE MOTION or anything file stamped on $20 worth of essentially useless paper.

  12. I think it would be very enlightening to know which “interest group” (or groups) pushed to have this measure added to the ballot. Was there an organized collection of signatures? If so, who funded that? Or did this come from the legislature.

    • It would seem to have a potential to benefit those members of our legislature who currently have private law practices at the very least, so I wonder like you how much of this came from their minds.

  13. Do the other 49 states elect their superior court judges?

  14. […] constitutional amendment allowing felony bench trials: The amendment, discussed in this previous blog post, passed. It won just 53% of the vote but only a simple majority was needed. I hope to post later […]

  15. […] of the state constitutional amendment that voters approved this fall. (I wrote about the amendment here.) But how exactly is waiver supposed to […]