D.C. Court of Appeals Credit: Darrow Montgomery

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Last June, wrestling with one of the stranger aspects of D.C.’s criminal justice system, one of the city’s most powerful judges made an unusual move: He suggested that the D.C. Council perhaps made the wrong call. His concern was that in the vast majority of states, anyone who’s facing jail time has the right to a jury trial, in order to ensure that all convictions are as fair as possible. But thanks to a pair of largely forgotten laws the Council passed in the 1990s, most defendants in the District don’t have any right to be tried by a jury. In 2018, more than 98 percent of misdemeanor trials in the District were bench trials, meaning a judge made the decision and no jury was involved.

In his concurring opinion in the June 2018 D.C. Court of Appeals decision Bado v. U.S., Bill Clinton-appointed Judge Eric Washington bemoaned this state of affairs. Going to jail for even a few months, he explained, can be life-shattering. People lose their jobs. They lose their apartments. They lose custody of their children. A criminal record can make future employers turn their noses up, and if someone’s already on probation, one “short” sentence generally translates into a second, longer one. “Most states recognize that a jury trial in criminal cases is critically important because of the stigma that accompanies a criminal conviction,” Washington wrote, “and many of those states accept the fact that any period of incarceration, no matter how short, can have a devastating impact on one’s life and livelihood.”

So Washington suggested a solution: The D.C. Council could reverse its decision and extend jury rights to all criminal defendants. And recently, the Council has actually taken steps in that direction, in small and piecemeal ways. In March 2016, for instance, the Council unanimously passed the NEAR Act, a major criminal justice bill, whose numerous reforms included guaranteeing jury trials when someone is charged with misdemeanor assault on a police officer.

Absent comprehensive reform, though, the Council has left the door open for clever prosecutors to take those jury rights back from defendants. In the past few years, the Court of Appeals greenlit a playbook of prosecutorial tactics that avoid jury trials for many charges—including assault on a police officer—where the Council gave that right back to the people. And the frequency with which prosecutors use these tactics is startling. Reviewing more than 500 cases from 2019, City Paper found that over the course of one month, prosecutors dodged jury trials more than 24 times a week by taking a crime that is jury-demandable and charging it as another, counterintuitive crime that’s not.

Paul Zukerberg, who’s practiced criminal law in D.C. since 1985, tells City Paper that the District’s blasé attitude toward jury trials permanently transformed the face of the city, since fewer jury trials means D.C. can lock up more people, faster. “D.C. has been at the cutting edge of taking away jury trials right from the get-go,” says Christopher Warnock, who was a criminal defense attorney in D.C. for 25 years. “It’s the difference between winning and losing. They talk about a bench trial as being a slow plea.”

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America went to war over jury trials once. For the founding fathers, juries were a source of passion. In 1774, John Adams wrote, “Representative government [i.e. voting] and trial by jury are the heart and lungs of liberty.” And when they spelled out their grievances against King George III in the Declaration of Independence, “depriving us … of Trial by Jury” made the list. So when the nation’s founders emerged from their revolution victorious, they enshrined the right to juries in the Constitution’s Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”

But in 1970, the U.S. Supreme Court gave the Sixth Amendment a major caveat. The Court had already decided in 1968 that the right to a jury only applies to “serious” crimes, and in Baldwin v. New York, they defined what it means for a crime to be serious: The right only applies if the maximum possible sentence is longer than six months.

“As soon as civil rights kicked in, they started taking away juries,” Warnock says. “As soon as you got women and African Americans on juries, they started taking away juries’ power.”

However, Baldwin didn’t require states to strip any defendants of their Sixth Amendment rights. It only meant states were allowed to do so. And in D.C., Baldwin didn’t become doctrine until 1993, when the Council passed the Criminal and Juvenile Justice Reform Amendment Act. That law set the threshold that remains to this day: Criminal defendants are only entitled to a jury trial if they face more than 180 days of imprisonment or a fine greater than $1,000.

Then the following year, having pushed the Sixth Amendment back on its heels, the Council landed the knockout blow. For more than 40 misdemeanor crimes, the Misdemeanor Streamlining Act (MSA) reduced the maximum penalty to 180 days of imprisonment—abolishing the right to jury trials for almost all misdemeanors in D.C., including theft, simple assault, and drug possession. The War on Drugs was in full throttle, and at the time, a spike in arrests was flooding the court system. (In 1993, the Superior Court had over 43,000 criminal cases, nearly twice as many as in 2018.) The idea behind the MSA was to “streamline” the process: Since jury trials take longer, taking away defendants’ jury rights could speed the whole system up.

But while the Council’s goal may have been efficiency, the effect on imprisonment rates was immediate and monumental. At the time, according to a report by the Court’s executive officer, Superior Court judges were almost twice as likely as a jury to decide that someone was guilty—so reducing jury trials made the conviction rate skyrocket. For misdemeanors, the year prior to the MSA, only 46 percent of cases ended with a guilty verdict or a guilty plea. The year after, that number jumped to 64 percent.

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This wasn’t exactly an unexpected consequence. Several councilmembers were sure to clarify that despite reducing criminal penalties, the MSA was tough on crime. Even though the maximum sentence for most of these crimes used to be one year, the actual sentence was already generally less than 180 days. Thus, explained Harold Brazil—then-Ward 6 councilmember and one of the Act’s co-sponsors—the MSA would mean “misdemeanants would actually do more time.” “Crime in our society…[is] out of control,” Brazil argued at a Council hearing on April 12, 1994. “Years and years of leniency and looking the other way and letting the criminal go has gotten us into this predicament.”

His bill passed. But in the end, even Brazil didn’t escape the machine he helped set in motion. On May 1, 2009, he was convicted of assaulting the manager of Jinx Proof, a tattoo parlor in Georgetown. Brazil couldn’t have a jury trial, because of the Streamlining Act. While he didn’t respond to City Paper’s calls or emails, Brazil did talk to the Washington Post back in 2009. He maintained his innocence to them and complained about the judge who sentenced him. “I’m incredulous that she found them more credible than me,” he told the Post. He then added he wished his case had a jury trial instead.

Many in Brazil’s position have felt the same way. “The Judge may be older,” explains Arthur Spitzer, who’s been ACLU-DC’s legal director since 1980. “Come from a different race or ethnicity. Live in a different part of town. And may have less empathy, perhaps, for the situation.”

How much of a difference that makes may depend on the nature of the crime. In a city where marijuana is decriminalized and a pending bill would do the same for sex work, City Paper found that drug crimes and sex work are some of the most common offenses bringing people to Superior Court. We reviewed all misdemeanor cases filed in January 2019 (far enough back that most of the cases are already disposed), and found 56 people charged with drug possession, 29 with selling weed, and 82 with sexual solicitation (more than two sex work charges per day). None of those misdemeanors are jury-demandable in the District.

But it’s not just that a judge potentially could view those crimes differently than 12 random D.C. citizens would. A judge, for instance, might think it’s absurd to arrest teenagers for selling dime bags while marijuana dispensaries rake in millions. However, compared to a jury, there’s a lot less that judge could do about it. “If one or more members of the jury think [something] shouldn’t be a crime anymore—say, for drug possession—they may not convict,” Spitzer explains. “A judge pretty much can’t do that. A judge is supposed to follow the law. By law, a judge can’t say, ‘I think, beyond a reasonable doubt, you did this, but I’m going to let you off because I don’t think you deserve to be punished.’ And a jury can.”

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There are still very common misdemeanors like threats and weapon possession, however, where the Council didn’t strip defendants of their right to a jury trial. Nevertheless, prosecutors seem to have figured out ways to finish the job. The story behind one landmark case starts in family court on June 14, 2012. Richard Jones was there because he wanted to be able to visit his daughter without being supervised. His daughter’s court-appointed attorney, Dennis Eshman, said he shouldn’t be allowed to, and the judge sided with Eshman. After the hearing, Jones approached the attorney in the hallway. He’d already filed two bar complaints against Eshman, and that day, he was angry. According to Eshman’s later testimony, Jones told him “in pretty close to a normal tone of voice,” “I’m going to smack the shit out of you.”

Jones was arrested and charged with making a “threat to do bodily harm,” punishable by up to six months imprisonment, and thus jury-demandable. However, moments before the trial commenced, prosecutors switched up the crime: Instead, they’d charge him with “attempted threat.” Since attempting most crimes in D.C. has a max sentence of 180 days—just a few days shorter than six months—this meant a jury was off the table. Judge Robert Morin heard the case in February 2013, and convicted Jones.

Jones tells City Paper he thinks a jury trial might have had a different result. After all, he says, Eshman is an attorney who’d appeared before Morin in an official capacity. Furthermore, Eshman, Morin, and Eshman’s lawyer were all white, and Jones, Jones’ lawyer, and their witness were all black. “You can’t really be fair because you’re not a robot… I cannot believe I went through all that for a comment I made in a normal tone of voice,” Jones says. “This is no toy. This is peoples’ lives. Do you know how hard it is to get your life back together when they have you locked up for something frivolous?”

Jones appealed, with the argument that it makes no sense to say someone “attempted” to threaten someone—it’s not as if he stuttered—and that the prosecutors did that just to deprive him of his constitutional rights. But on September 17, 2015, the D.C. Court of Appeals rejected Jones’ plea.

Today, charging jury-demandable crimes as “attempted” crimes is a well worn tool in the prosecutor’s tool belt. At least 52 people were charged with “attempted threats” in January alone. Another 17 were charged with “attempted possession of a prohibited weapon” (although in every case City Paper examined, the defendant was completely successful in “possessing” whatever weapon they were arrested for).

The Court of Appeals has ruled that it’s technically legal for prosecutors to modify charges in ways that avoid jury trials—even when for that particular offense, the Council wrote the law with the “unambiguous intent” to have those crimes tried by a jury. Perhaps the most important example is misdemeanor assault on a police officer (APO), whose sentence the NEAR Act increased by a few days, from 180 days to 6 months.

Ward 5 Councilmember Kenyan McDuffie, who wrote the NEAR Act, tells City Paper that the goal was to make the crime jury-demandable. “The data really showed that the [U.S. Attorney’s Office] was using the charge of APO almost three times as much as cities of a similar size,” he says. “And the disparity was clearly being felt in communities of color.”

But today, when someone is arrested for assaulting a police officer, prosecutors frequently end up charging them with “simple assault” instead, which has a maximum sentence of 180 days. City Paper found 29 instances of this in January alone, roughly one per day. The allegations ranged from punching an officer, to spitting on their legs, to one man who was pointing his cellphone flashlight at an officer and slapped his hand away when he reached out toward his phone.

Councilmember Charles Allen, chair of the Committee on the Judiciary and Public Safety, says he doesn’t know prosecutors’ motivations when they decide how to charge these cases. However, “if prosecutors’ tactic is to avoid juries but get the same outcome,” he says, “then I absolutely think that defies Council’s intent.”

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In Bado v. U.S., the D.C. Court of Appeals ruled that if a defendant faces deportation because of a crime they’re accused of, they have the right to a jury trial even if the sentence is short. But in his concurring opinion, Judge Washington wrote that this raises a problem, because even when deportation isn’t at stake, the consequences of a “short” sentence can be “devastating.” Legal precedent means it’d be difficult for the Court of Appeals to resolve this conundrum on its own, he explained, but one body could solve the problem with snap of its fingers: the D.C. Council.

“The Council could reconsider its decision to value judicial economy above the right to a jury trial,” Washington wrote. Giving all defendants the right to a jury trial, like most states do, “could have the salutary effect of elevating the public’s trust and confidence that the government is more concerned with courts protecting individual rights and freedoms than in ensuring that courts are as efficient as possible in bringing defendants to trial.”

Allen says this certainly is worth considering, but that if it slowed the courts down, it could potentially have negative consequences like increasing how long people stay in jail before their trial. “That’s a very complex issue we’d have to have deeper conversations with the courts regarding,” he explains.

Spitzer thinks that Council should make the leap. If efficiency is a concern, he says, “a better way to do it would be to hire more judges if you need them. Or stop arresting so many people for minor crimes.”

An earlier version of this article referred to Baldwin v. U.S. The name of the case is actually Baldwin v. New York. The article has been updated. 

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