Constitutional amendment would change trials without death penalty

Published 12:00 am Sunday, October 5, 2014

When Rowan County voters head to the polls in November, they won’t only be choosing politicians.

North Carolina’s 2014 ballot includes a constitutional amendment that would give some defendants a choice on whether they’re tried by a judge or jury. The amendment specifically allows any person convicted of a criminal offense and not facing the death penalty to choose a bench trial — meaning a judge decides guilt — over a jury trial.

Currently, North Carolina law requires a criminal defendant in a superior court felony case to have a jury trial. All other 49 states and the federal criminal justice system allow defendants to waive their right to a jury trial, according to a study by the University of North Carolina School of Government. The study says arguments in favor of the amendment are that it would save money and time, if a significant number of defendants chose a bench trial.

Common arguments against are that the change would give more power to judges and a risk that judges would favor certain defendants, according to the study.

Rowan County District Attorney Brandy Cook said the amendment would be a fundamental change in how criminal trials are conducted.

“Most states, including our federal courts, require the consent of the criminal defendant, the judge and the prosecutor before allowing a bench trial,” Cook said. “However, North Carolina’s proposed amendment only requires the consent of the criminal defendant and the judge, not the prosecutor.”

Facing the death penalty is a qualifying factor in whether or not defendants can choose a bench trial. Cook said every case in which a person is indicted for first-degree murder is reviewed to determine whether or not her office could or should ask for the death penalty.

“Not every case qualifies for the death penalty,” Cook said. “In order for a case to qualify for the death penalty, we have to have sufficient evidence that supports at least one aggravating factor. We have a team of seasoned prosecutors, including myself, that meet and thoroughly review the facts and circumstances of each case before making this determination.”

Local defense attorney Carlyle Sherill disagreed with Cook’s assessment, saying it wouldn’t be a significant change.

“I don’t think it’s a significant change in law because I just don’t think many will take advantage of it,” Sherill said.

UNC’s study looked at other examples of the proposed amendment and came up with three findings. The first was similar to Cook’s statement, but found having prosecutors’ consent prevents influential attorneys from swaying judges. The second was that a small portion of defendants — between 5 percent and 30 percent — choose to waive jury trial rights. The study stated the small portion means cost saving or efficiency gains would be relatively modest.

The UNC study’s last finding was that judges are more likely to acquit than a jury.

“Although the reasons for this are not completely clear,” the study stated. “It contradicts the conventional wisdom that defendants are better off with a jury than with a judge.”

The constitutional amendment may just be another box to check for some, but Secretary of State Elaine F. Marshall said it’s important for voters to consider the amendment before voting.

“The Constitution of North Carolina belongs to the people of North Carolina,” Marshall said in a news release. “As with every proposed constitutional amendment, the voters have an important responsibility here to consider this proposed change and cast their ballots according to the facts and to their personal beliefs.”

The amendment’s place on the ballot came through an act of the North Carolina General Assembly — Session Law 2013-300. It passed nearly unanimously and was approved on July 18, 2013.

Contact reporter Josh Bergeron at 704-797-4246.