Pennsylvania Capital-Star
December 22, 2021
Over the last couple of months, for those paying attention, the cornerstone of the American criminal justice system—trial by jury—was on display for all the world to see.
Two homicide trials, one in Wisconsin and the other
in Georgia, ended very differently. Kyle Rittenhouse was acquitted of two
killings and Travis McMichael, his father Greg McMichael and William Bryan were
convicted of killing Ahmaud Aubry.
Those following one, or both trials, saw the
fundamentals of the Bill of Rights, more particularly the Sixth Amendment, in
action. The speedy trial rule and empaneling an impartial jury were
obvious. The confrontation of witnesses occurred on live television day
in and day out. The government met their burden of guilt beyond a reasonable
doubt in one case and fell short in the other case.
Whether you agreed with one, both or neither verdict
it was a chance for America to see what happens every day in courtrooms across the
country . . . right? Not exactly.
Jury trials are so rare in the criminal justice
system that one might consider trial by jury an anomaly or outlier.
A look at the federal criminal justice system is
telling. A 2018 report from the National Association of Criminal Defense
Lawyers found that fewer than three percent of federal criminal cases result in
a trial. Most criminal cases in America end without a jury hearing even a
whisper of evidence.
Several years ago, U.S. Supreme Court Justice
Anthony Kennedy said plea bargaining determines “who goes to jail and for how
long. It is not some adjunct to the criminal justice system. It is the criminal
justice system.”
That is in spite of what President John Adams
declared more than two centuries ago, ‘‘[r]epresentative government and trial
by jury are the heart and lungs of liberty. Without them we have no other
fortification against being ridden like horses, fleeced like sheep, worked like
cattle, and fed and clothed like swine and hounds.’’
Those are some pretty dramatic words. Yet, most
Americans don’t even realize the precious right to force the government to
prove guilty beyond a reasonable doubt is slipping away.
More than a decade ago, Richard A.
Oppel, Jr. wrote in The New York Times, the criminal justice process has become
“[S]o coercive in state and federal courts, that defendants are forced to weigh
their options based on the relative risks of facing a judge and jury rather
than simple matter of guilt or innocence.”
The plea bargain, however unpopular or unseemly is
an important tool in the administration of justice. Plea bargains save the
government time, money, and the trouble of actually proving a case beyond a
reasonable doubt. If the plea bargain were to disappear the criminal courts
would grind to a halt.
However, the concern is what criminal justice reform
advocates call the “trial penalty”—additional prison time that people face
merely for exercising a right to which they have a constitutional guarantee
under the Sixth Amendment.
The National Association of Criminal Defense
Lawyers’ report found, “There is ample evidence that federal criminal
defendants are being coerced to plead guilty because the [trial] penalty for
exercising their constitutional rights is simply too high to risk. This ‘trial
penalty’ results from the discrepancy between the sentence the prosecutor is
willing to offer in exchange for a guilty plea and the sentence that would
be imposed after a trial.”
A foreword to the report written by former federal
judge, John Gleeson, suggested, “Putting the government to its proof is a
constitutional right, enshrined in the Sixth Amendment; no one should be
required to gamble with years and often decades of their liberty to
exercise it.”
Part of the problem is no one is advocating for the
rights of those accused of a crime. The Sixth Amendment needs some star
power. The First Amendment is protected by the vigilance of news media.
The Second Amendment is insulated by the zealousness of NRA. The Sixth
Amendment needs a standard bearer. Unfortunately, it appears that those who
benefit by the Sixth Amendment are those accused of a crime—not a very
sympathetic group.
The government can lock-up a person accused of a
crime without proving anything more than a crime was committed and the accused
is “probably” the one who committed the crime— try finding that in the
Constitution.
Yet, that happens in significantly more than 90
percent of criminal cases in this country. The government meets a prima
facia burden, enough for the case to be set for trial, and very few accused of
a crime force the government to prove their case beyond a reasonable doubt.
A mask mandate may seem to some to be an
infringement on liberty—a vaccination mandate is tyranny. The real threat to
democracy is the slow and steady erosion of the Sixth Amendment.
Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George P.C. in New Castle, Pa., and the author of “The
Executioner’s Toll, 2010.” @MatthewTMangino. He welcomes feedback at mattmangino.com.
To visit the column CLICK HERE
No comments:
Post a Comment