This issue has to be on the low end of problems facing the Texas criminal justice system right now, but reading Wretched of the Earth’s example of the State forcing a defendant to jury trial brought it to mind…

Of course the defendant has the right to a jury trial for any criminal charge in Texas, and I know that the system in Austin would probably be better for the accused in general if more lawyers at least urged their clients to exercise that option. Far too many cases are plead out when it is not in the defendant’s best interest to do so.

What I’m talking about is the situation where a defendant wants a Trial by Court (aka judge trial), but the State “refuses to waive jury”. What are some reasons the State might do that? Primarily for two reasons

They believe they have a tactical advantage in front of a jury. Take the example of a felony DWI in Texas, where the jury will hear about at least two prior convictions for DWI. Yes, the jury is instructed not to consider the prior convictions as evidence that the defendant committed the offense on this particular occasion, but only for “jurisdictional purposes”. (I’ll post about that legal fiction, and how it unduly prejudices the defendant in another post sometime.) Many times I believe the judges in Austin would be able to not improperly factor this into considering whether the state has proven my client guilty of DWI this time, while juries are often incapable of separating the two.

They want to stretch the case out longer.  That’s right. As in Wretched’s example, the State might know it has no case, but doesn’t want to dismiss. Jury Trials are usually reset several times before the case is old enough to be reached, while Trials Before the Court very often go the first or second time they are set. So to punish the defendant (who I’ll add, in these situations, the prosecutors believe actually is guilty, they just can’t prove it), they make him come to court again and again until his case is number one on the jury docket.

The State’s Reason Number One can be condensed into the word “cheating” – or perhaps just gaming the system to their advantage. Reason Number Two falls squarely under the “waste of taxpayer’s money” category.