Commentary

The slow undoing of the Sixth Amendment | Opinion

The concern is what criminal justice reform advocates call the “trial penalty”—additional prison time that people face merely for exercising a right to which they have a constitutional guarantee under the Sixth Amendment

Prosecutor Paul Camarillo questions a potential juror during jury selection in the trial of the three men charged with chasing and killing Ahmaud Arbery, at the Gwynn County Superior Court, Tuesday, Oct. 26, 2021, in Brunswick, Ga. (Elijah Nouvelage/Pool Photo via AP/The Georgia Recorder).

By Matthew T. Mangino

Over the last couple of months, for those paying attention, the cornerstone of the American criminal justice system—trial by jury—was on display for all the world to see.  

Two homicide trials, one in Wisconsin and the other in Georgia, ended very differently.  Kyle Rittenhouse was acquitted of two killings and Travis McMichael, his father Greg McMichael and William Bryan were convicted of killing Ahmaud Aubry.

Those following one, or both trials, saw the fundamentals of the Bill of Rights, more particularly the Sixth Amendment, in action.  The speedy trial rule and empaneling an impartial jury were obvious.  The confrontation of witnesses occurred on live television day in and day out. The government met their burden of guilt beyond a reasonable doubt in one case and fell short in the other case.

Whether you agreed with one, both or neither verdict it was a chance for America to see what happens every day in courtrooms across the country . . . right?  Not exactly.  

Jury trials are so rare in the criminal justice system that one might consider trial by jury an anomaly or outlier.

A look at the federal criminal justice system is telling. A 2018 report from the National Association of Criminal Defense Lawyers found that fewer than three percent of federal criminal cases result in a trial. Most criminal cases in America end without a jury hearing even a whisper of evidence.

Several years ago, U.S. Supreme Court Justice Anthony Kennedy said plea bargaining determines “who goes to jail and for how long. It is not some adjunct to the criminal justice system. It is the criminal justice system.”

That is in spite of what President John Adams declared more than two centuries ago, ‘‘[r]epresentative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.’’

Those are some pretty dramatic words. Yet, most Americans don’t even realize the precious right to force the government to prove guilty beyond a reasonable doubt is slipping away.

  More than a decade ago, Richard A. Oppel, Jr. wrote in The New York Times, the criminal justice process has become “[S]o coercive in state and federal courts, that defendants are forced to weigh their options based on the relative risks of facing a judge and jury rather than simple matter of guilt or innocence.”

The plea bargain, however unpopular or unseemly is an important tool in the administration of justice. Plea bargains save the government time, money, and the trouble of actually proving a case beyond a reasonable doubt. If the plea bargain were to disappear the criminal courts would grind to a halt.  

However, the concern is what criminal justice reform advocates call the “trial penalty”—additional prison time that people face merely for exercising a right to which they have a constitutional guarantee under the Sixth Amendment.

The National Association of Criminal Defense Lawyers’ report found, “There is ample evidence that federal criminal defendants are being coerced to plead guilty because the [trial] penalty for exercising their constitutional rights is simply too high to risk. This ‘trial penalty’ results from the discrepancy between the sentence the prosecutor is willing to offer in exchange for a guilty plea and the sentence that would be imposed after a trial.” 

A foreword to the report written by former federal judge, John Gleeson, suggested, “Putting the government to its proof is a constitutional right, enshrined in the Sixth Amendment; no one should be required to gamble with years and often decades of their liberty to exercise it.”

Part of the problem is no one is advocating for the rights of those accused of a crime. The Sixth Amendment needs some star power.  The First Amendment is protected by the vigilance of news media. The Second Amendment is insulated by the zealousness of NRA. The Sixth Amendment needs a standard bearer. Unfortunately, it appears that those who benefit by the Sixth Amendment are those accused of a crime—not a very sympathetic group.

The government can lock-up a person accused of a crime without proving anything more than a crime was committed and the accused is “probably” the one who committed the crime— try finding that in the Constitution.

Yet, that happens in significantly more than 90 percent of criminal cases in this country.  The government meets a prima facia burden, enough for the case to be set for trial, and very few accused of a crime force the government to prove their case beyond a reasonable doubt.

A mask mandate may seem to some to be an infringement on liberty—a vaccination mandate is tyranny. The real threat to democracy is the slow and steady erosion of the Sixth Amendment.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. in New Castle, Pa., and the author of “The Executioner’s Toll, 2010.” @MatthewTMangino. He welcomes feedback at mattmangino.com.

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