Public defenders moving to use Supreme Court decision on jury trials in domestic violence cases; victim advocates worried
A recent precedent-setting decision by the Nevada Supreme Court allowing misdemeanor domestic violence cases to proceed to jury trials has created shockwaves through the state’s criminal justice system and prompted concerns from victim advocates.
The court’s unanimous decision, published last week, would allow for defendants charged with misdemeanor domestic violence to request a jury trial, following recent changes in state law that strip gun possession and ownership rights from persons convicted of those crimes.
Although the court’s decision focused almost entirely on firearm-related changes to the law, opening the door to jury trials in misdemeanor cases is likely to add substantial pressure to the criminal justice and court systems throughout the state.
Already, Clark County Public Defender Darin Imlay said his office has adopted a policy of requesting jury trials for all of its indigent defendants accused of misdemeanor domestic violence, with the first likely to occur within the next 60 days.
“We're asking for a jury trial on virtually every single misdemeanor domestic violence case, unless some type of negotiation is made at the arraignment date or pre-trial date that our client wants to accept,” he said. “If it's not negotiated or the client's not deciding to have a bench trial, then we're setting every one of those for a jury trial. The numbers are large, very large.”
Although defendants are typically guaranteed the right to a jury trial, some jurisdictions (including Nevada) had not offered those rights for “petty” offenses, which typically means a violation with a maximum prison sentence of no more than six months. For an offense to move out of the “petty” category, it must come with additional penalties that are “so severe that they clearly reflect a legislative determination that the offense in question is a serious one.”
The court had ruled in 2014 that community service requirements attached to misdemeanor domestic violence cases weren’t enough to move it out of the “petty” category, but a law adopted in 2015 prohibiting firearm ownership for those convicted of such crimes caused the court to reverse itself last week, opening the door to jury trials.
But the court’s decision has been met with fears that overworked local courts will lead to domestic abusers pleading down to lesser charges and continuing to have access to firearms. Attorney General Aaron Ford called the decision “devastating” and warned that they could have a “chilling effect” on domestic violence victims coming forward.
“My office is working hand-in-hand with city, county, and federal officials to formulate a response and prevent the domestic violence epidemic in this state from further devastating our communities,” he said in a statement. “The most immediate priority for my office is doing whatever it takes to ensure more people are not killed by their abusers as a result of this decision.”
Nevada consistently ranks high nationally for domestic violence crimes and fatalities; police statewide arrested more than 30,000 people for domestic violence offenses in 2017, and the Nevada Coalition to End Domestic and Sexual Violence estimated that more than 47,000 adults and children in the state contacted domestic violence victim services in 2017.
In a follow-up statement sent Tuesday, Ford added that he “understand(s), appreciate(s) and accept(s)” the court’s decision and “in fact embrace(s) it” as an example of the importance of constitutional rights. But he said the decision would nonetheless require additional judicial system resources to avoid putting victims at further risk.
“To properly implement this new jury requirement, more resources are immediately needed, such as access to victim advocates, additional prosecutors and defense attorneys, training for laypersons who serve as justices of the peace, and many other needs,” Ford said. “In the meantime, the sad fact remains – domestic violence victims are at risk.”
Other organizations that provide support to victims of domestic violence also raised concerns with the court’s ruling. SafeNest CEO Liz Ortenburger said in a statement that the ruling “clearly puts a batterer’s rights above those of the victim.”
“Delaying trials to meet a jury mandate will only serve to stall the judicial process by perpetuating the power and control dynamic of the abuser and forcing victims to live in a continued state of fear,” she said in a statement.
Clark County District Attorney Steve Wolfson said his office brought a monthly average of 489 misdemeanor domestic violence charges in 2018, an acceptance rate of around 72 percent of the 674 cases submitted to his office by law enforcement. He raised a host of concerns over the court’s ruling, including the length of jury trials versus bench trials, limited capabilities of judges and prosecutors to hear and argue hundreds of new trials, a lack of jury trial capability and equipment in smaller and rural jurisdictions.
“I think we're all a little concerned about the effect on all of us, including victims,” he said in an interview on Wednesday. “So yes, I think they have a right to be concerned.”
But Imlay, who said the logistics of implementing the court’s decision are still being worked out, said he didn’t expect rates of domestic violence to be changed now that those accused of the crime can request a jury trial.
“I think they're overstating the case,” he said. “I don't think anybody's going to now go out and commit a domestic violence charge thinking, ‘Oh great, I have a right to a jury trial now.’ I don't think anyone is going to consider those things before they decide whether or not to commit a battery.”
Updated at 11:56 a.m. to include a statement from Clark County District Attorney Steve Wolfson.