Power check: The vanishing jury trial in Virginia

Many people think trial by jury is a bedrock of American government, but according to statistics from the Virginia judicial system, fewer than two percent of our state's criminal cases are now resolved by jury trial. What a loss.

Along with the ballot, jury service is about the only way the average citizen can have a direct and immediate impact on the government. Juries are part of our system of checks and balances, especially as a barrier to a prosecutor's almost unbridled discretion to determine who gets charged with what.

The idea of limiting government power goes back to early English Common law, when juries were seen as the only protection standing between an average citizen and the reach of the king. Our Founders considered the right to a jury trial so fundamental they enshrined it in the Bill of Rights.

In my experience as a prosecutor, I've seen juries bring a broad range of experience, skills, and common sense to the task. Especially with a diverse jury, the result is a kind of collective wisdom. They take their duty seriously, pay attention throughout the trial, and use their combined judgment to achieve justice in each individual case.

Back in 2008, in the case of the woman prosecuted for accidentally leaving her baby to die in a hot car, a member of the jury commented– after a quick 12-0 acquittal– that tax dollars were wasted by prosecuting the grieving and remorseful mother.

Nevertheless, there are several reasons why 98 percent of Virginia's criminal cases are decided by guilty plea or– in what's called a “bench trial”– by a judge.

First, juries are unpredictable. Think Casey Anthony. It's the nature of the jury system to be unpredictable. The fear of an unknown outcome drives attorneys on both sides to seek a safer-seeming process such as a bench trial or a guilty plea.

Even without a plea agreement, judges tend to be more predictable than juries in their decisions, especially if the attorneys have a good read on the judge. In Patrick County, legendary Circuit Court Judge Martin Clark is known for handing out jail time for certain offenses, and everyone who practices law in his Court knows this– or learns it quickly.

Second is the time investment. While Virginia is not like Florida or California where jury trials often last for weeks or months, they can still last for one or two days, with an unusual case lasting over three days, with much more time needed for trial preparation.

The 1983 jury trial of Glenn Barker in Charlottesville– for the year-earlier killing of Katie Worsky– took a week. But that was complex since her body was never found, so we in the prosecution had to spend time proving that a murder had been committed.

In Virginia, either side can demand a jury trial. Of course, the defendant– once a case passes above the General District Court level– has a Constitutional right to a jury; but Virginia also gives the prosecution, and the judge, the right to a jury. Few prosecutors ever ask for a jury trial. One prosecutor who does insist on jury trials– at least for certain kinds of cases– is the tough Commonwealth’s Attorney of Martinsville, Joan Ziglar. She demands jury trials because, unlike most states, Virginia makes the jury set the sentence in felony cases, and sentences handed down by juries are usually longer than those set by judges. So in some instances, Ziglar will commit the time and work necessary, and take the risk of an uncertain outcome, to get a jury trial.

Nowadays, the jury is able to see the criminal record of the defendant before sentencing. This is a significant change in Virginia law that came about in the 1990s. Before that time, the jury was not informed of the defendant's criminal history at any stage in the trial. One juror in the early 1990’s approached me after one of these so-called "unitary trials" and said, “We operated on the assumption that the defendant had no record, and surely the court would have told us if he did!”

It was that scenario, repeated countless times across the state, that led to the dramatic change in the law called the “bifurcated trial,” in which the second part of the trial is solely to determine the sentence. This is the part when jurors get to see the defendant’s criminal record.

Another significant change to Virginia law also took place in the 1990s: sentencing guidelines. A group of judges, including the late Judge Herbert Pickford of Charlottesville, began the guidelines project after studies showed racial and other disparities in sentencing. The guidelines are based on a number of factors, the two most important being the charge itself and the second the defendant’s previous criminal history.

In a jury trial, the guidelines, and have resulted in an additional push for plea agreements, because both sides are looking at the guidelines before the trial as pathways for negotiation and compromise.

Together, these two legal changes– the bifurcated trial and sentencing guidelines– have decreased the number of jury trials in the state. That's neat, that's fast, and that's cheap. But where is the check on prosecutorial power?
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Steve Deaton is a former prosecutor and defense attorney who currently practices law in Charlottesville.

Note: The file photograph above was shot by Jay Kuhlmann and not Jen Fariello. The information was wrong in the Hook's print edition.