Jury trials too costly...or just too hard to control?

By Vin Suprynowicz
web posted March 1999

The authors of the United States Constitution considered the right to trial by jury - more accurately, the prohibition on government taking away a citizen's life, liberty or property without the unanimous consent of a randomly chosen citizen jury - so important that it's the only right to which they devoted two of the first 10 amendments.

The Sixth Amendment guarantees the right to jury trial "in all criminal prosecutions"; the Seventh Amendment extends that right to all suits in common law "where the value of the controversy shall exceed twenty dollars." And, of course, the 14th Amendment forbade the individual states from depriving American citizens of any of these civil rights.

Here in Nevada (as in many states), the authors of the state Constitution were similarly forceful in defending the institution that has made Anglo-Saxon jurisprudence a thousand-year wonder of the world. Section 3 of the 1864-vintage Nevada Constitution declares: "The right of trial by Jury shall be secured to all and remain inviolate forever; but a Jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law. ..."

Still, lawyers wouldn't be lawyers (and judges wouldn't be even bigger lawyers) if they didn't try from time to time to convince us the plain meaning of simple words isn't what the mere unwashed commoner thinks it is.

The United States Supreme Court, for instance, has held for many years that when the Sixth Amendment guarantees a right to a jury trial in "all" criminal prosecutions, it doesn't mean "all," at all - it merely means all those cases in which the defendant might face six months in jail. If the prosecutor promises to ask for only a five-month sentence, no such right exists.

There, wasn't that easy?

Then, just a few years back, "conservative" Supreme Court Justice Sandra Day O'Connor discovered and revealed that even that isn't quite what the Founders meant: It now turns out they meant it's OK to deny a criminal defendant a jury trial even if he faces more than six months in jail on multiple charges, so long as no single charge against him carries a penalty of more than six months.

Isn't this fun? Constitutional law used to be such drudgery, back before our jurists adopted the motto of Lewis Carroll's Humpty Dumpty, that "When I use a word, it means just what I choose it to mean -- neither more nor less."

Not wanting to miss out on all the revisionist fun, a group of Clark County (Las Vegas) District Court judges and justices of the peace are now hoping the 1999 Nevada Legislature will agree to see things their way, and start to whittle down the right of Nevadans to demand jury trials in state courtrooms, as well.

Whether the Nevada Constitution actually guarantees a right to jury trial (you remember, that hard-to-understand phrase "shall remain inviolate forever"?) "is in dispute," explains District Judge Mark Gibbons, who's sheepdogging this proposed evisceration of one of our most precious liberties up in the state capital in Carson City.

The judges complain that it costs the state as much as $5 000 per day to conduct a jury trial, and that just doesn't make sense in civil matters where the jury award may actually end up being less than the trial cost. With appeals, the volume of trials is already dragging out some cases as long as five years, they complain.

"If you're fighting over $100 and it's costing everyone else $5 000, how much does public policy matter?" asks Judge Gibbons.

Substitute the words "a citizen's basic rights" for the euphemism "public policy," and chew on that question a bit. Besides, none of this could have anything to do with the trend on which Joan Biskupic of The Washington Post penned a major feature on February 8, headlined "In Jury Rooms, A Form of Civil Protest Grows: Activists Registering Disdain for Laws With a 'Not Guilty' "... could it?

The nerve! Jurors refusing to cooperate when "the law" says we have to send away a teenager for years for being caught with a joint in her purse? Why, if juries had been allowed to act as the conscience of the community in this same way back in the 1850s, how would they ever have enforced the Fugitive Slave Act?

And once we cave in here, how many other rights would we be willing to give up in the interest of making the jobs of paid government bureaucrats (yes, I am referring to judges) "more efficient"?

Does Judge Gibbons also believe (for instance) that it's not worth putting an armed robber on trial if he only netted $3 000 in his crime spree, since that's also not a cost-effective use of a courtroom that costs "everyone else" $5 000 per day? Wouldn't it more cost-effective to just let him walk?

In an era when government has expanded till more than 90 percent of what it spends money on is not constitutionally authorized, it's pound foolish to cry poverty in attempting to restrict citizen access to one of the few remaining services which government actually is authorized and mandated to provide - justice in the courts, including jury trials.

Yes, "20 dollars" in 1787 generally meant an ounce of gold. So adjusting for inflation and reading that phrase to mean $300 in today's dollars may be justifiable. And yes, encouraging litigants in cases of lesser value to go to arbitration, or to voluntarily use small claims courts (appearing only before a justice of the peace) is worth a try.

But if our state government lacks the money to build enough courtrooms to provide fair and speedy justice, it had just darned well better close down half the bureaucratic ant farms it's erected without any constitutional authorization in the past 60 years, and shift a lot more of its current revenues back to its proper business.

The backlog in civil cases is only a symptom of the real problem, anyway: that being the vast increase in criminal cases due to a hundredfold increase in laws criminalizing previously legal activities.

"Unfortunately the criminal stuff is taking most of our time," confirms Las Vegas Justice of the Peace Douglas Smith. "We can't have people sitting in jail while we are doing a car accident trial."

If our state legislatures would stop dreaming up new crimes, and instead repeal most of the fanciful new enactments they've dreamed up since about 1913 (Armed robbery was outlawed by then, wasn't it? And murder and rape and fraud?) Judge Gibbons might be amazed at how quickly the courts could deal with the small minority of defendants who would remain in custody.

You know ... the ones who have actually hurt someone?

Vin Suprynowicz is the assistant editorial page editor of the Las Vegas Review-Journal. Readers may contact him via e-mail at vin@lvrj.com.

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