It’s the 21st century, but Arizona lawyers and judges still can find themselves looking at cases and laws from stagecoach days and before to figure out whether some criminal defendants are entitled to a trial by jury.
That’s because if you’re accused of certain misdemeanor crimes in Arizona, whether or not you’re entitled to a jury trial may depend on whether there was a right to one when Arizona became a state in 1912.
Sometimes that analysis means going back past even territorial days to see how a similar offense was handled under English common law, the legal principles that evolved on a case-by-case basis over centuries, crossed the Atlantic Ocean and served as a foundation for U.S. law.
In just the past two months, the Arizona Court of Appeals has done just that sort of analysis in two cases. In one they held that there is no right to trial by jury for misdemeanor contributing to the delinquency of a minor; in the second the court ruled someone charged with misdemeanor resisting arrest has the right to have a jury hear the case.
Other recent jury-trial rulings by Arizona courts dealt with people charged with such everyday offenses as drunken driving, assault, drag racing, disorderly conduct and carrying a concealed weapon. Non-jury trials are heard by a judge, who renders a verdict.
Jury trials are for those facing more than six months in prison
The starting-point legal standard — one adopted by the U.S. Supreme Court for the entire nation — is that a person facing more than six months in jail is entitled to a jury trial.
But dating back to statehood, the Arizona Constitution has had jury trial provisions that have been interpreted to include an even stronger guarantee. And because the state Supreme Court has held that those rights existed at statehood, courts regularly go back in time to get guidance on the legal lay of the land long ago.
The former pastor of a Catholic church in Mesa, awaiting trial on charges of misdemeanor contributing to the delinquency of a minor, failed to win the right to a jury trial partly because there was an English crime of neglect dating back to 1908. The Court of Appeals rejected Dale Fushek’s argument, saying in its June 14 ruling that the crime was included in British statutes but not entrenched in common law.
In the resisting arrest case, however, the Court of Appeals overturned Steve Le Noble’s conviction by a judge on a resisting-arrest charge stemming from a struggle with Phoenix police officers in a take-out restaurant’s parking lot.
A mid-19th century case indicated that resisting arrest was a crime under English common law and the court found an early 20th century ruling in Arizona indicated that a defendant in territorial court was afforded a trial by jury, the court said in its ruling issued July 31.
Requiring that sort of analysis of legal history from centuries ago on a crime-by-crime basis is somewhat troubling, said George Anagnost, presiding judge of Peoria Municipal Court. “Getting certainty from some of this process is somewhat problematic,” Anagnost said.
Considering that the outcome involves a very important civil liberty, the available historical information often “is not as clear and as documented as we’d like to see,” he said.
For Fushek, the misdemeanor charge had high stakes beyond a possible jail term because a conviction would mean he could be required to register as a sex offender the rest of his life, said Michael Manning, one of his attorneys.
In Arizona, the right to a jury trial “is a murky area and what makes it more challenging in our era rather than in the past really are the consequences of a conviction,” Manning said. “Today it goes beyond 30 to 60 days in Tent City.”
Along with the implications for individual defendants, Anagnost said, giving jury trial rights to those accused of misdemeanors has consequences for courts, which must allow for the possibility of the costly and time-consuming process even if most people either waive the right or enter plea deals, he said.
“There’s a clear logistical component,” Anagnost said.
The ruling in Noble’s case was an about-face for the Court of Appeals, which had ruled in 1981 that resisting arrest defendants weren’t entitled to jury trials.
The Court of Appeals said it revisited the issue because of a 2005 Arizona Supreme Court ruling in a drag racing case that discarded a decades-old standard of allowing jury trials for cases involving “moral turpitude.”
While the 2005 ruling dropped a “very subjective” test of whether behavior is particularly immoral, lawyers and judges in Arizona still must delve into legal history to determine whether a right to a jury trial exists, said Paul Bender, an Arizona State University law professor.
“The problem of course is that the history is never clear,” Bender said.