When I began my career as a lawyer in Texas in 1998 before eventually moving to Nevada, I was amazed by how in Texas a defendant had the right to a six-person jury trial even for a minor traffic ticket. In Texas, if you are charged with any misdemeanor including traffic citations (i.e., running a red light, speeding), you have the right to a six-person jury of your peers. Now contrast that with Nevada. Here in Nevada, you have no right to a jury trial for any kind of misdemeanor – period. That’s right. Here’s a brief history for you. Nevada made U.S. Supreme Court history when, in the case of Blanton v. City of N. Las Vegas, 489 U.S. 538 (1989), it held that a defendant charged with misdemeanor Driving Under the Influence (DUI) was not entitled to a jury trial because the offense is “petty”. A “petty” misdemeanor is one in which the maximum term of imprisonment is 6 months. So, if you’re charged with a misdemeanor in Nevada and the most you can get under the law is 6 months in jail, that’s considered “petty” and you don’t get the right to have a jury decide your case. Only a judge can decide your case. Petty? Really? When people think of “petty”, they think of speeding tickets. How can having your freedom taken from you for 6 months – that’s 180 days, that’s half a year – how is that “petty”? The fact that a judge, not a jury, can hear a “petty” misdemeanor trial and decide to put you in jail and take you away from your family and job for six months is anything but “petty”. I’m sure if a judge were sitting in jail for being convicted of a “petty” misdemeanor, he or she would not think it’s so “petty”. Nevada is one of the only states in the country to deny a defendant a jury trial for a “petty” misdemeanor. Oddly enough, the Nevada Legislature passed NRS 175.011(2) which allows a defendant to demand a jury trial for a “petty” misdemeanor with 30 days' notice before the date of the trial. Huh? So how can it be that there is a law on the books that gives you a right to a jury trial for “petty” misdemeanors but you don’t actually have that right? Come again? Here’s why. After NRS 175.011(2) was passed which clearly spelled out that a defendant had the right to a jury trial on “petty” misdemeanors, the Nevada Supreme Court decided that the Legislature didn’t mean what was said. In Smith v. State, 99 Nev. 806, 672 P.2d 631, (1983), the Nevada Supreme Court acknowledged that the Legislature passed NRS 175.011(2) but said that it really didn’t matter because the Legislature probably didn’t mean to create a “statutory right”. WTF???? Wait a minute. The Legislature passed this statute. The Governor of Nevada signed off on it. It became law. But then in 1983, the Nevada Supreme Court decided in effect, “Nah, that’s not what they meant.” I’m paraphrasing, of course, but talk about judicial activism! If I, as a criminal defense lawyer, were to argue that a statute passed by the Legislature didn’t mean what it said, I’d probably be accused of violating rules of professional conduct by making a frivolous argument to the court. Imagine if I were to argue that the mandatory minimum laws on the Nevada books for certain crimes such as drug trafficking which clearly don’t allow a judge to sentence a defendant to probation were laws that the Legislature really didn’t mean what they said when the laws were passed. I’d be laughed out of court for making the same kind of argument. But that’s what the Nevada Supreme Court decided.
Here’s where I’m coming from. Let’s go back to Blanton who said that DUI is a “petty” misdemeanor. The lawyers for Blanton argued that DUI is not a “petty” misdemeanor because a defendant faced, among other punishments, suspension of his or her driver’s license. Unfortunately, the U.S. Supreme Court disagreed. But here’s where I argue that Blanton shouldn’t control when a defendant is facing charges for domestic violence. If a Permanent Resident Alien is facing a domestic violence misdemeanor charge, he or she will get deported if convicted of domestic violence. As we’ve seen in Padilla v. Kentucky, the U.S. Supreme Court said that immigration consequences are no longer collateral rights and are substantive rights. So my argument is deportation for a domestic violence conviction is anything but “petty”. Deportation means a person will be sent back to their foreign land even if he or she has their family in the U.S. Blanton defines “penalty” as follows: ”In using the word ‘penalty,’ we do not refer solely to the maximum prison term authorized for a particular offense. See United States v. Jenkins, 780 F. 2d 472, 474, and n. 3 (CA4), cert. denied, 476 U.S. 1161 (1986). Blanton v. N. Las Vegas, 489 U.S. 538, 542 (U.S. 1989).” So, since deportation is a penalty, which is more severe than a 6-month sentence since it involves permanently being separated from your family in the U.S., a legal permanent resident alien should be allowed a jury trial for a misdemeanor charge of domestic violence. If a legal permanent resident alien is allowed a jury trial for a misdemeanor charge of domestic violence, then so should a U.S. Citizen be given the same right under the Equal Protection Clause. It would be unfair to give a non-citizen a jury trial right while depriving a U.S. Citizen of the same right to a six-person jury to hear his or her case in a charge of misdemeanor domestic violence. I’ll keep you posted on my efforts to change the law. I’m preparing a writ of mandamus, which in Latin means a petition to order the lower court to do something for which it has no discretion. I’m going to be filing this with the Eighth Judicial District Court in January arguing that it should direct the justice court or municipal court to order a defendant to have a right to a jury trial.
UPDATE: I’ve filed a petition for writ of habeas corpus or alternatively writ of mandamus with the Nevada Supreme Court. They haven’t ruled on it yet. If they grant my motion, then all Nevadans accused of domestic violence will get a jury trial. If they do not, then I will petition the U.S. Supreme Court and ask them to give Nevadans accused of domestic violence a jury trial. More to come! As of today, January 8, 2012, the Nevada Supreme Court has not ruled on my writs. Given their backlog, it will be several months but I will keep you posted once I hear something.