In The News › Lawyers divided over Amendment 10

Oct 24, 2010

Source: 2theadvocate.com

Filed under: On the Ballot

Lawyers divided over Amendment 10

Sunday, October 24, 2010
By Joe Gyan, Jr.
2theadvocate.com

A proposed state constitutional amendment requiring criminal defendants to declare at least 45 days before trial that they want a judge — not a jury — to decide their fate is pitting Louisiana’s prosecutors against the criminal defense bar.

Defendants in criminal cases currently may waive their state constitutional right to a jury trial, except in death penalty cases, but the constitution places no time limits on that decision.
Present state law also allows a defendant to change his mind and revoke his waiver.

If voters approve Amendment 10 on the Nov. 2 ballot, defendants who wish to waive their jury trial rights will have to do so no later than 45 days prior to their trial, and waivers will be irrevocable.

John Sinquefield, a former East Baton Rouge Parish prosecutor who now serves as senior counsel to state Attorney General Buddy Caldwell, calls the proposed amendment “good legislation’’ and says Caldwell’s office supports it.

The New Orleans-based Bureau of Governmental Research watchdog group also backs the proposal, saying it will “help to improve court efficiency.’’

Marty Stroud, a Shreveport lawyer who represents accused Baton Rouge killer Trucko Stampley and also serves as a congressional district director of the Louisiana Association of Criminal Defense Lawyers, labels Amendment 10 a “horrible proposition’’ and an assault on a right that has been in the Louisiana Constitution since 1974.

LACDL President Mike Mitchell, director of the East Baton Rouge Parish Public Defender’s Office, said the association is against the proposed amendment for that reason.

“We believe the right to a judge or jury trial is a right that is afforded under our Constitution to the individual citizen, not the government. That should not be tampered with,’’ Mitchell argued.

Amendment 10 is a compromise version of a bill introduced in the state Legislature earlier this year. The original measure, which was backed by prosecutors, law enforcement agencies and victims’ rights groups, would have required a prosecutor and judge to agree before a defendant could waive his right to a jury trial.

Sinquefield said 30 other states and the federal government impose such a requirement.

“We wanted to add Louisiana to that list. We failed,’’ he said.

Proponents of Amendment 10 say it will ensure that defendants do not abuse the legal system.

David Caldwell, who heads up the Public Corruption Division in the Attorney General’s Office, feels the constitutional change is needed because defendants too often wait until the day of trial to waive their right to a jury trial.

Caldwell said such 11th-hour waivers result in delays and unnecessary costs for the state because jurors are paid to appear in court, only to be sent home.

In cases where witnesses must be brought in from other parts of the state or country and housed at state expense, he said, the delay attributable to resetting the case to another court date when the jury trial is waived at the last minute can be considerable.

“This continued ‘gamesmanship’ can no longer be tolerated and that is why this amendment is now on the ballot,’’ Caddo Parish District Attorney Charles Scott wrote in an e-mail.

“It takes out that surprise factor,’’ Sinquefield said of the proposed amendment. “It gives stability to the system.’’

Baton Rouge criminal defense lawyer Robert Tucker contends the current waiver system is just fine.

“The problem (with Amendment 10) is the irrevocability part. I think you should have the right to change your mind throughout the discovery process all the way up to trial,’’ he said.

Tucker and other backers of the current waiver system say a judge may understand a case better than a jury if the subject matter is complex or requires specific understanding of certain legal provisions.
“It’s a slap at the judicial branch,’’ Stroud said of the proposed change.

Opponents of the proposal also argue that it would cede one of the defense’s strategic advantages.

They say the defense already is handicapped because Louisiana does not require unanimous jury verdicts in criminal trials.

“The real issue is fair play and substantial justice,’’ Tucker stressed.

If Amendment 10 passes, fellow local defense lawyer James Manasseh said, “It’s going to be challenged somewhere.’’

“Do I think it’s going to get challenged? Absolutely,’’ David Caldwell conceded. He added, however, “It’s not unreasonable to put time restrictions on the exercise of a particular right.’’

Opponents of the proposed amendment reject the notion that bench trials add costs to the legal system, saying jurors are paid a per diem rate and are required to be at court for a specific range of dates regardless of case reassignment.

East Baton Rouge Parish District Attorney Hillar Moore III noted that prosecutors prepare for judge and jury trials differently and said the current law puts the prosecution at a disadvantage.

“It does affect how we prepare and what we do,’’ he said.

Louisiana District Attorneys Association Executive Director Pete Adams said the association does not endorse propositions for electoral approval, but noted that most of the LDAA-member district attorneys support the proposed amendment.

“Although less effective than the original proposition, Amendment #10 is seen by proponents, including most of our members, to be a positive change,’’ he noted in an e-mail.

Oct 24, 2010

Source: 2theadvocate.com

Filed under: On the Ballot

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