Archive for February, 2008

The Fading Right to Jury Trial

Sunday, February 10th, 2008

Ok, the cop said I looked bad on the field sobriety tests, but I know I’m not guilty: I only had two drinks and I’ve got witnesses. No matter what the police say, I can tell my side of the story to my fellow citizens and let them decide. Right?

Well…Not necessarily. This right to jury trial, handed down centuries ago from England’s Magna Carta, was considered so fundamental to the framers of our Constitution that they included it in the Bill of Rights’ Sixth Amendment? It makes no exceptions to this sacred right to trial by a jury of peers.

So why do some states today deny a person accused of drunk driving a jury trial? Why, for example, does an American citizen arrested in New Jersey have to accept the decision of a politically-appointed judge? After all, the Sixth Amendment is pretty clear on the subject:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…

How did the government get around this fundamental right? Well, once again they started whitling away by playing around with words. (As Humpty Dumpty said Lewis Carroll’s Through the Looking Glass, “When I use a word, it means just what I choose it to mean, neither more nor less.”)

It started some years ago when the federal courts decided that the framers of the Constitution didn’t really mean “in ALL criminal prosecutions”. So they changed one little word. They said what the framers really meant was that there was a right to jury trial in “serious” criminal prosecutions — not in “petty” ones. Duncan v. Louisiana, 391 U.S. 145 (1968).

So what is “serious”? Well, a couple of years later, the Supreme Court decided that there was no right to a jury trial if the maximum authorized prison sentence did not exceed six months. Amazingly, going to jail for one-half year was not enough to justify giving a citizen a right to trial by his peers. The Court added, however, that a defendant could have a right to jury trial “only if he can demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a “serious” one”. Baldwin v. New York 399 U.S. 66 (1970).

Well, what about DUI cases? They usually involve maximum sentences of six months in jail — AND a bunch of other stuff: fines, license supensions, DUI schools, ignition interlock devices, 3-5 years of probation. And the possibility of even stiffer punishment for a repeat offense. Doesn’t that show that lawmakers think drunk driving is pretty serious?

Inevitably, a citizen accused of DUI and (inevitably) convicted by a judge in Nevada took the case up to the U.S. Supreme Court. With all the additional punishment over and above the six months in jail, his attorney argued, wasn’t it “serious” enough to have a right to a jury? No, the Court held: “Considering the additional statutory penalties as well, we do not believe that the Nevada Legislature has clearly indicated that DUI is a “serious” offense.” Blanton v City of North Las Vegas 489 U.S. 538 (1989).

Hmmm…..Drunk driving seems “serious” enough to justify ever-harsher DUI laws because of the oft-mentioned “carnage on the highways” — but apparently not “serious” enough to give a citizen his constitutional right to a jury trial.

We’ve come a long way since those historical words “In all criminal prosecutions…”

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Fraudulent Crime Lab DUI Tests: Update

Tuesday, February 5th, 2008

My last post reported on the findings of a panel of Seattle judges which concluded that the state’s crime lab responsible for breath testing had routinely engaged in “fraudulent and scientifically unacceptable” practices that have compromised breath-test readings across Washington. 

On February 2nd, a Seattle television station ran a more in-depth investigation, resulting in an interesting report on their news program.  The complete video can be seen and heard at ”Up Front: DUI Breath Tests Thrown Into Question”, and begins with comments concerning the judicial findings:


…A scathing report of what was going on at this state agency lab.  Judges say it was fraud, a total disregard for accuracy.  So what does it mean for DUI cases going back for years?…

The judges are brutally blunt and saying it’s not just mistakes, it’s fraud, and the breath tests results simply cannot be trusted…

Defense attorneys say the problem is not with the police or with how the test is administered, it’s a meltdown at the state toxicology lab.

Defense Attorney Ted Vosk:  They deceived the judges, they deceived the prosecutors, they deceived the officer out on the street.

The panel of three King County judges agreed, finding “Ethical lapses, systemic inaccuracy, negligence and violations of scientific principles.  Literally thousands of breath tests performed in recent years were effected through a multiplicity of errors.”…

How did it happen?…


The report goes on to give a credible account of what’s been going on in the Washington state crim lab. No problem, though, according to the King County prosecutor:


Reporter:  When you see a breath test today, how much confidence do you place in the results?

Prosecutor: I’m quite confident.


How did it happen?  The same way it’s happening in police crime labs across the country:  the role of the crime lab has shifted from one of analyzing evidence to one of facilitating convictions…whatever it takes.

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