Only Non-Citizens Entitled To Misdemeanor Jury Trial

In the District of Columbia, a person charged with an offense that carries a jail sentence of 180 days or less is not entitled to a jury trial.

Lase week, the Court of Appeals held that, if the defendant is a non-citizen facing possible deportation, the right to trial by jury attached.

Associate Judge Thompson, with Senior Judge Ruiz concurring, concluded

This appeal requires us to decide whether a non-citizen facing a charge of misdemeanor sexual abuse of a child has a constitutional right to a jury trial because of the severe, “virtually inevitable,” and “nearly . . . automatic” penalty of deportation that is triggered by a conviction for that offense, which constitutes an “aggravated felony” under the federal immigration laws. For the reasons that follow, we hold that the answer to that question is “yes.”

From the concurring opinion

I agree with Judge Thompson that the deportation consequence that flows from a conviction of misdemeanor child sexual abuse, when considered with the exposure to 180 days of incarceration, makes it a “serious” offense under the Sixth Amendment that entitled appellant to a jury trial. I take no issue with Judge Thompson’s discussion that, because child sexual abuse is an “aggravated felony” under federal immigration law, appellant does not have recourse to relief from deportation or even an otherwise valid claim of asylum, which makes his situation particularly dire. That further explanation is not, however, necessary to the Supreme Court’s analysis under the Sixth Amendment which looks to the “severity of the maximum authorized penalty” in assessing whether an offense is serious and warrants the right to a jury trial.

A dissent from Associate Judge Fisher

According to the majority, a citizen charged with misdemeanor sexual abuse of a child does not have a right to a jury trial, but a noncitizen charged with the same offense does. Before I accept such a startling result, I would like to see more cogent proof that the prospect of removal (even the certainty of removal) is legally sufficient to overcome the presumption that the crime is not a “serious” offense to which the right of trial by jury attaches. Padilla v. Kentucky, 559 U.S. 356 (2010), clearly does not compel this conclusion because it says nothing about the right to a jury trial…

 Apart from being unprecedented, the majority’s analysis enormously complicates the practice of criminal law. “Immigration law can be complex, and it is a legal specialty of its own. Padilla, 559 U.S. at 369. Under the majority’s precise holding, the determinative question is whether the conviction would be treated as an aggravated felony—it is the certainty of deportation, not exposure to the risk, that matters. And the reservation of judgment found in footnote 33 of the majority opinion signals that issues of immigration law will become the central focus of criminal litigation whenever a noncitizen has been charged with an offense that ordinarily does not require a trial by jury. Trial judges and practitioners of criminal law will have to acquire the expertise to make these judgments. I would not add this complexity unless convinced that the Supreme Court has required it.

(Mike Frisch)