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You’ve been arrested near Dupont Circle. The cops say you were smoking a joint. The charge: one count of misdemeanor drug possession. You know they’ve got it wrong. You know you’ll be cleared once the jury hears your side of the story.
But there won’t be a jury. One person, a D.C. Superior Court judge, will determine your innocence or guilt.
The D.C. Council calls this efficiency. Colin Dunham and Chris Warnock call it injustice. Dunham and Warnock, who represent indigent defendants in Superior Court, are leading a lonely campaign to overturn D.C.’s Misdemeanor Streamlining Act and restore a constitutional right they say has been stolen from District residents.
Their struggle began last year, when the D.C. Council passed the streamlining act as part of a massive judicial reform bill. On the surface, the streamlining law seemed to be a defendant’s dream. Some misdemeanors had carried punishments of as much as a year in jail and a $10,000 fine, but the new law reduced the maximum punishments for most misdemeanors to six months in jail and a $1,000 fine.
But this reduction of sentences effectively rendered defendants ineligible for jury trial. In a 1989 decision written by Justice Thurgood Marshall, the Supreme Court ruled that those charged with petty crimes—any offense that carries a jail term of less than six months and a fine of no more than $1,000—did not have the right to a jury trial. Under D.C.’s law, “bench trials” conducted entirely by a Superior Court judge have replaced most misdemeanor jury trials.
The council passed the streamlining bill to save money and declog a system that struggles with more than 20,000 misdemeanor cases a year, and according to its supporters, the law is accomplishing exactly what its authors hoped. Judges who once presided over two-day misdemeanor jury trials now rocket through two or three bench trials in a single day. The courts, say the law’s advocates, save money without compromising any principles of justice.
“A case is the same whether or not it’s going before a judge or a jury,” says Assistant U.S. Attorney Erik Christian. “The standard of proof is the same regardless of the venue, and in many cases, judges are more acutely aware of the different nuances of an offense and are more aware as to whether or not the necessary elements of the law are being met….It’s a lot harder to slip something by a judge.”
But Dunham, president of the Superior Court Trial Lawyers Association (SCTLA), sees the issue rather differently. “It seems to me that this issue, the jury trial, represents a firebreak,” he says. “If we say it’s all right take away jury trials, then what next? Once you take away this right, you begin to cross into the realm of tyranny.”
Dunham and Warnock are unlikely warriors in the campaign for judicial reform. Warnock is a thin, long-haired bohemian with a scraggly goatee and an affection for white pants. Dunham is a native Englishman with a head of tired gray hair. He stalks the halls of Superior Court with a pamphlet-size copy of the Constitution shoved fiercely into his front pocket.
In this age of “three strikes and you’re screwed,” the two legal gadflies could hardly have chosen a less popular cause to champion—who cares, after all, about a few crooks at the lowest rung of the judicial ladder? But where the law’s supporters see streamlining, Dunham and Warnock see a fundamental violation of the Bill of Rights.
The pair point indignantly to cases of “aggregation”: Prosecutors are charging some defendants with multiple misdemeanor counts, resulting in possible multiyear sentences without the benefit of a jury trial. Consider the example of Carlos Lopez, charged in December 1994 with three misdemeanor counts of theft and destruction of property. Lopez, a noncitizen, faced the possibility of both 18 months in jail and deportation without a jury trial.
“When it comes right down to it,” Dunham says, “you’re putting a person’s fate into the hands of one person instead of 12, and that’s wrong. Judges are human beings—human beings with the same passions, the same susceptibility to blindness, the same faults that we all have.”
(The pair also wonder whether the streamlining law has really streamlined anything. Superior Court, they note, was hardly overrun with misdemeanor jury trials. Out of more than 26,000 misdemeanor cases in 1993, only 459 were argued in front of juries.)
Dunham and Warnock have launched a multipronged attack to overturn, or at least undermine, the new law. In their misdemeanor cases, both file motions, appeals, and writs requesting that clients be given jury trials. They encourage other defense attorneys to do the same, believing that if enough lawyers push for jury trials, one court might eventually relent. The D.C. Public Defender Service, the local chapter of the American Civil Liberties Union, and lawyers from the megafirm Covington & Burling have also filed challenges. So far, local judges have denied all their petitions.
Warnock is taking one of these failed cases to the U.S. Supreme Court. James Thornwell was convicted of misdemeanor drug possession by a Superior Court judge. Warnock appealed the conviction to the D.C. Court of Appeals, which refused to hear arguments in the case. He has now filed an appeal with the Supreme Court, arguing that the Misdemeanor Streamlining Act is unconstitutional. “We’re prepared to take this issue all the way,” says Warnock. “We want the Supreme Court to know that it’s a very important issue for people in D.C. They can choose to deal with it now or not, but eventually they’re going to have to deal with it.”
The pair don’t expect any more luck with Supreme Court justices than they have found with Superior Court judges. (It’s hard to imagine Justices Clarence Thomas and Antonin Scalia leaping at the opportunity to increase the rights of suspected criminals.)
But Dunham and Warnock aren’t losing hope. They believe that the people of the District will recognize the act’s injustice and are planning a voter referendum—perhaps as early as 1997—to repeal the law. In the end, they say, democracy may restore this most democratic component of the American judicial system. “The jury just makes the whole system better,” says Warnock. “It makes everyone more careful, from the police to the prosecutors to the defense attorneys. You know that your case better be sound if it’s going to stand with 12 people.”