Original Article State court to consider who gets jury trials Michael Kiefer The Arizona Republic Dec. 4, 2004 12:00 AM In Arizona, a defendant can get a jury trial for smoking marijuana but not for beating a spouse, for bare-bottom dancing but not for cruelty to animals. The inconsistencies regarding who's entitled to a jury trial are at the center of a case being considered by the Arizona Supreme Court. The high court took the case under advisement on Oct. 28 but gave no indication when it would rule. The outcome could affect misdemeanor cases, potentially having the biggest impact on DUI cases. Getting rid of some of the jury trials could cut docket times and court costs. But defense attorneys worry it could do so at the expense of constitutional rights. "One judge has one opinion," said Kathleen N. Carey, a Maricopa County public defender. "With (a jury) you have a better opportunity of really touching the heart of what our society feels in that community." Drag-racing case The case being considered by the Supreme Court is about drag racing. Justin Derendal was arrested in late August 2002 when he and a friend were riding motorcycles down Bell Road in north Phoenix. Derendal was charged with drag racing, a Class 1 misdemeanor, punishable by up to six months in jail and a hefty fine. His attorney, Neal Bassett, requested a jury trial for Derendal in Phoenix Municipal Court, but the court refused his request. He filed a special action in Superior Court demanding a jury trial. He pointed out that reckless driving merited a jury trial. "Drag racing is of an even higher grade than reckless driving," he said, meaning that it's considered a more serious offense. "And it's of the same nature. It's two cars driving recklessly instead of one car." The arguments for and against misdemeanor jury trials are split across the courtroom aisle. Defense attorneys point to the principle that the accused is entitled to a trial by his or her peers. They also know that juries can be more lenient on their clients than judges. Prosecutors feel that state tests to decide which cases are jury-eligible are too difficult to apply and that such jury trials waste court time and resources. Both the state and federal tests for misdemeanor jury eligibility come out of DUI case law. The federal test is attractively simple to prosecutors: Any offense punishable by a jail sentence of six months or less is petty and not deserving of a jury trial; other states have adopted that guideline. Arizona could, too. But six months incarceration is the maximum punishment on the books for misdemeanors in Arizona. "That means that no Arizona misdemeanor is jury-eligible under the federal test," Bassett said. Prosecutors relish the idea of eliminating misdemeanor trials. "Consistency and fairness. It's consistent with federal. It's fair, too," said Ken Flint, assistant Scottsdale city prosecutor. Misdemeanor offenses Misdemeanor cases are mostly tried in Justice and Municipal courts across the state. According to the Research and Statistic Administrative Office of the Courts, which crunches numbers on behalf of the Arizona Supreme Court, there were more than 65,600 trials for misdemeanor offenses at the state's Justice and Municipal courts in fiscal 2004, which ended June 30. Only 1,273 of those were jury trials and three-fourths of them were criminal traffic cases, which includes DUI, according to the brief Flint submitted to the high court in the Derendal case. He noted how much time and money could be saved by eliminating misdemeanor jury trials. He cited 1995 figures claiming that Phoenix Municipal Court had spent nearly $1.3 million on jury trials, mostly for DUIs and had a juror no-show rate as high as 80 percent. But defense attorneys are appalled. "Justice should not be determined on an economic issue," Carey said. "This is the reason why we have a Constitution and we are so different from other countries. From the beginning of our statehood we have given individuals the right to a jury trial. It's a historical decision and a legislative decision." When the Derendal case reached the Arizona Supreme Court, the justices asked for briefs describing why the state should or shouldn't adopt the federal guidelines set out in a 1989 U.S. Supreme Court case called Blanton vs. City of North Las Vegas, which was about the right to a jury trial for DUI. The Blanton decision set the definition of petty offenses as those whose punishment is six months or less of incarceration. That could include many Arizona DUIs, even though a state statute grants the right to a jury trial for DUI. 'State vs. Rothweiler' The test for whether a misdemeanor is jury-eligible comes from the 1966 Arizona Supreme Court ruling in State vs. Rothweiler, also a DUI case. It listed three considerations that demanded jury trial: If there were an existing precedent for a jury trial under common law, that is, before Arizona became a territory; if it were a crime of "moral turpitude," that is, if it reflected on personal character; and if the consequences were greater than just the six-month imprisonment - say, the loss of driver's license and insurance and other social consequences of a DUI conviction. All three tests are difficult to apply, and so many decisions are made on case law. If the court granted a jury trial once for a specific charge, it will offer it again. But "unless the court actually says this offense gets a jury trial or this offense doesn't, it's difficult to determine whether an offense is jury-eligible," Flint said. "So it almost requires a charge-by-charge analysis." It could go either way The justices could decide to rule only on whether Derendal gets a jury trial, which would set precedent for that offense. They could clarify the existing law, making it easier for judges and attorneys to apply. Or they could opt for the federal Blanton standard and eliminate jury trials for misdemeanors altogether, even for DUIs. "I would be surprised if the Supreme Court went that far," said Hays, the Mesa prosecutor. "Obviously they're thinking about doing something with the Rothweiler test since they're the ones who asked that this issue be briefed. "They must at least be considering revising what they've done in the past. But how far they're going to go, I don't know."