Judge or jury? NC constitutional amendment would give defendants a choice

North Carolina voters on Tuesday can rewrite a part of the state Constitution that distinguishes it from the 49 others: Here, defendants facing felony charges must have a jury trial.

Every other state allows the accused the option of skipping a jury for a “bench trial” before a judge. So do the federal courts.

North Carolina could soon join them.

Supporters of the proposed change, which was added to the ballot on an almost unanimous vote by the legislature, say it could save the courts money, shorten trial schedules and allow judges to render decisions that they, as legal professionals, may be more qualified than jurors to make.

The jury trial waiver, they say, also has built-in safeguards. Judges and defendants must agree to waive juries, and the bench trial is not an option in death penalty cases. Many states also require an OK from prosecutors; North Carolina’s proposed system would not.

For that reason, the state’s district attorneys, including Mecklenburg’s Andrew Murray, oppose the amendment, saying it cuts prosecutors and crime victims out of the decision on whether juries hear cases.

The prosecutors also say the change could lead to “judge shopping,” in which defense attorneys delay a trial until a judge more likely to give a favorable verdict becomes available. A 2005 study of the federal courts found that judges were three times more likely than jurors to acquit.

If bench trials become an option, “It won’t be long before lawyers feel they’ve got ‘the book’ on various judges,” says former Mecklenburg District Attorney Peter Gilchrist.

Because prosecutors control the trial docket, they also have significant say on which judges hear their cases.

If approved, the amendment would funnel more courtroom power to the bench. Critics of the amendment say a single judge, compared with 12 jurors, can more easily side with influential attorneys. Because North Carolina still elects its jurists, might verdicts track an attorney’s campaign donations to a particular judge?

A recent analysis of the amendment by the UNC School of Government says the actual savings and added efficiency to the North Carolina courts could be modest, based on the experiences of other states.

The August study says that 5 to 30 percent of accused felons nationwide opt for bench trials. The overwhelming number of felony cases never reach court at all – ending in guilty pleas or dismissals.

Mecklenburg County, the state’s largest county court system, held 270 jury trials during the 2014 budget year. Assuming that two-thirds of those were criminal cases, the bench-trial option could cut from 10 to 50 jury trials a year.

Bench trials frequently are shorter than jury trials, which in Mecklenburg typically run two to three days (murder trials routinely go on for weeks).

They also could reduce what the state pays each year to jurors. In Mecklenburg alone, some 50,000 jurors are called annually. They are paid $12 the first day but up to a $40 per diem if the trial runs six days or more.

Whatever savings the bench trials accrue would come in handy. At current rates, the state will run out of money to pay jurors in April, two months before the budget year ends, the Administrative Office of Court says.

Richard Boner, the county’s senior resident Superior Court judge, says the change would add flexibility to the court schedule and could mean speedier trials for those charged with lesser crimes.

And while critics say the option of bench trials could be used by prosecutors to pressure defendants into making snap decisions on how their cases will be handled, Boner said judges still have to agree. So do defense attorneys.

“I can’t imagine a defense attorney with a client charged with a serious felony waiving a jury trial,” Boner said. “That lawyer would almost be guilty of malpractice.”

Charlotte attorney Claire Rauscher, a former public defender, practiced law in Pennsylvania where the bench trial option is in place. She says she’d welcome the change in North Carolina because bench trials can be a highly effective way of handling scores of minor cases.

“It could be a phenomenal change,” she says, “because it can really move things along.”

District Court judges already hand down verdicts. But some Superior Court judges, Rauscher says, face a significant adjustment in replacing jurors as the trial’s “finders of fact.”

As for judge shopping, attorneys already do that in District Court, and Rauscher says the same phenomenon is likely in Superior Court if the amendment passes.

“If you ask for a bench trial, and you get a judge who you don’t want to try the case before, then you don’t try it,” she says.