Thursday morning, my email inbox began to blow up from my colleagues in the criminal defense world. “Game changer…” one simply said, and that said it all. Nevada’s courts – particularly our municipal and justice courts – are about to be radically altered, and virtually every Nevadan will be affected.
The case is Anderson v. Eighth Judicial District Court (135 Nev., Adv. Op. 42 (2019) for the nerds who like citations). The defendant was charged with battery which constitutes domestic violence, a first offense, and was set to stand trial in the Las Vegas Municipal Court. He asked for a jury trial, but in accordance with longstanding Nevada law, was told he wasn’t entitled to a jury for a misdemeanor charge. He plead no contest and was found guilty, and appealed his conviction based on the fact that he was denied his right to a jury. Eventually, his case got to the Nevada Supreme Court, which reversed his conviction and declared that henceforth, anyone in Nevada charged with misdemeanor domestic battery is entitled to a trial by a jury of his or her peers.
The justices unanimously reasoned that while misdemeanor domestic battery cases are misdemeanors, the unique combination of consequences now in place for that offense make it “serious” enough to trigger a fundamental due process right to a jury trial under both the state and federal constitutions. (Most misdemeanors are still “petty,” and bench trials in front of a single judge is deemed adequate.) The final straw in the bundle of punishments pushing domestic battery over the threshold was, ironically, a Republican-sponsored gun control measure from 2015 which made it a felony for a person who has ever been convicted of even misdemeanor domestic battery from possessing a firearm.
If you think this decision only affects lawyers and alleged wife beaters, think again. Here are seven takeaways from this decision that fundamentally changes the legal landscape in Nevada, even more than the dozens of criminal justice reform laws passed in the 2019 legislative session.
Domestic battery is both more and less serious than you might think
Domestic battery may be a misdemeanor, but it’s one of the most consequential and serious misdemeanor crimes in Nevada law. In addition to the six months in jail and $1,000 fine one can face for any misdemeanor conviction, you also must undergo mandatory counseling and community service. A no contact order, which is common, can get you effectively evicted from your home. If you aren’t a citizen, even if you’re a lawful resident who has lived here for decades, it’ll get you deported quicker than major drug trafficking (I wish I was kidding). Such a crime on your record will limit your job prospects. And under both state and federal law, you lose your right to possess a firearm of any kind forever. A third conviction in seven years lands you in prison for one to five years, with no possibility of probation.
When most people think about “domestic violence,” they imagine some guy in a dirty white tank top blackening his old lady’s eye for not having dinner ready on time. That happens, of course, but in the thousands of domestic battery cases I’ve handled as both a prosecutor and defense attorney, that “classic” scenario represents maybe 30 percent of them. The rest of the time, it’s a couple or family members, usually intoxicated, who get in some sort of fairly mutual shoving match. Sometimes it’s a set of brothers. I’ve seen women arrested for throwing a drink in an ex’s face, or men for grabbing the arms of their smaller attackers in self-defense. “Battery” is defined in our statutes as unlawful “force or violence” upon the person of another, but the Supreme Court has interpreted this to mean any offensive touching. A poke in the chest is a battery, as is spitting on someone, as is a shoulder check as you walk out of a door after a fight.
The people who get convicted of domestic violence aren’t always who you’d think
Police are required to arrest someone if they can determine who the “primary physical aggressor” is, and prosecutors are prohibited from reducing or dismissing the charge if they think they can technically prove the case. It is common to not have any physical evidence or injury, and most domestic battery trials involve nothing more than the competing credibility of two people – quintessential “he said, she said” situations.
Some of the worst injustices I’ve ever seen have been in domestic violence cases. The true wife beaters are often the ones most likely to get off, because their victims are either too intimidated or too invested in the unhealthy relationship to want to come to court and testify against their abuser. As long as we have a right to confront our accusers in court (and we always must), this will always be a challenge for law enforcement.
On the other hand, plenty of “victims” don’t tell the truth. Maybe they’re seeking advantage in a divorce or custody dispute (evil, but all too common), maybe they’re afraid to admit they struck first, maybe they were drunk and honestly remembered it wrong. Having had to run away from home to escape domestic violence myself as a child, I take a back seat to no one in understanding how terrible such crimes can be. But not every set of circumstances is as the Legislature envisions it when it passes harsher penalties, and not all bad behavior needs to be punished the same way (or punished criminally at all).
A jury trial will mean that a group of people will all have to agree on the credibility of the victim in order to convict someone of this crime – and that will lead to more confidence in the outcome of these trials. Even the best judges get it wrong sometimes, and not every judge is the best. A now retired judge once announced a belief to a colleague of mine that women could not commit domestic violence, which is assuredly not true.
The Nevada Supreme Court takes individual liberties and civil rights very seriously
This is the second time in as many weeks that a court viewed by many as somewhat “liberal” has interpreted laws in such a way as to make it harder for government officials to abridge your fundamental, inalienable right to armed self-defense. And by insisting on jury trials, the court is saying very loudly that more due process rather than less is the rule when the State tries to take away liberties of any kind. This is a good thing in a political climate where more and more politicians are open and brazen about their desire to control and regulate every aspect of people’s daily lives.
Most other states provide for jury trials for misdemeanors. I wonder if this isn’t a signal that the court believes a major policy shift is needed. DUIs, for example, also carry consequences far beyond that which most of us would consider “petty”. This is as it should be, because the conduct is so dangerous. But does this mean jury trials for DUIs or other misdemeanors are soon in the offing?
Prosecutors are going to have to be much more selective
I have always believed that the prohibition against plea bargaining in domestic battery cases is an unconstitutional infringement by the Legislature of an executive branch prerogative. It is also foolish policy which leads to injustice. Now it is impossible as a practical matter and must be repealed.
This law is grounded in the assumption that some critical mass of prosecutors and/or police are perfectly at peace with wives and girlfriends being smacked around periodically. If this was ever true, in my experience it certainly is not now. And if there still are a few of those misogynistic relics around, what’s to stop them from ignoring that law along with their conscience?
Because the possible sets of facts that can constitute domestic battery are so incredibly broad, prosecutorial discretion to plead some of those down is vital to just outcomes. A finger poke in the shoulder should not be treated the same as a punch in the eye — but right now it is. The consequences serious enough to require a jury trial should be reserved for conduct which is equally serious. I don’t know a single prosecutor who disagrees with this, but it’s not the sort of thing elected district attorneys are eager to say in an election season lest they be accused of being “anti-woman” or some other such nonsense.
But now, practically speaking, time and budgets won’t allow every single one of these cases to be prosecuted before a jury, and so necessary discretion will be forced back upon them. The Legislature should quickly amend the law to reflect this new practical reality and give prosecutors their bargaining power back.
Prosecutors are panicking – but the smart ones understand the value to their offices
When Anderson was announced on Thursday, prosecutors from all over the state were meeting for their annual conference. I’ve been told by several friends that the pucker factor over the implications of this case is pretty high. Attorney General Aaron Ford, who has never been a front-line prosecutor having to make day-to-day judgment calls on how to prosecute individual criminal offenses, went so far as to accuse the Supreme Court of instigating an increase in the death rate as a result of domestic violence.
Ford’s claim is absurd here. Jury trials are already required for the most serious domestic violence cases – those where substantial injury has occurred, where strangulation is involved, or where the person is a repeat offender. Prior to Anderson, people convicted of misdemeanor domestic batteries typically do a few days in jail, complete counseling, do a bunch of community service, and are then back in the community. I don’t know what “deaths” he thinks the lack of jury trials is preventing now.
More sober (county) district attorneys have more legitimate worries. Jury trials are far more time consuming than bench trials, and require a higher level of lawyering skill. Manpower in those offices will be strained, and budgets will be stretched thin(er).
But the payoff for our prosecutors will be significant in the long term. Right now, a young lawyer’s first jury trial takes place with many years in prison on the line for serious offenders. How much better is it for anyone in any profession to hone skills in situations where the stakes are lower?
And as our district attorneys are all politicians, what better way to show local voters your “product”? DAs who recruit, train, and retain quality deputies will be rewarded at the ballot box, because their professionalism will be apparent to hundreds of voting jurors throughout the year. It’s also a great way for the public to keep their eyes on the criminal justice system, which is a big part of the point of having juries in the first place.
This is going to cost you
Municipal court judges and justices of the peace across the state are more worried than prosecutors. They need to figure out – from scratch and on zero notice – how to summon a jury pool, conduct jury selection, instruct those juries in the law and do all of the logistical things that make jury trials a big deal. In many rural counties, these judges are not lawyers, and have never participated in a jury trial before as either a judge or an attorney. Many courtrooms aren’t equipped for any jury of any size, and will have to be retrofitted or borrow space from other courts if they can. They also have to pay the jurors, and probably additional staff to send out the summonses, coordinate the jurors, call them off when cases settle (as they often do), etc. This will bust small court budgets wide open.
Domestic battery prosecutions are also quite common, which means you, Dear Reader, are now far more likely to be called for jury duty. Don’t worry, though – a misdemeanor trial usually only lasts half a day instead of the better part of a week. And in my experience, most of the time even jurors who were initially reluctant to serve come away from the experience feeling very good about it. It is a critical check on the power of the government, as well as the ultimate expression of a government made up of citizen participants.
And if you get called for a single day misdemeanor trial, you’ll be out of the pool to be called for the four-week construction defect case coming up down the road…
Laws will have to change
Our current statutes are not compatible with this decision — a special session might even be necessary. State law has always allowed for misdemeanor juries in county justice courts (but never granted for practical purposes), but they are prohibited by law in municipal courts. As noted above, prosecutors will need more discretion. The process for summoning and selecting a jury is provided for in the law, but with felony crimes in district courts in mind, and more guidance is probably needed before the spring of 2021.
New laws can mitigate the effects of this decision. In the states which provide juries for misdemeanors, many only require six person juries to satisfy due process. Juries could be empaneled for multiple misdemeanor cases to consolidate time and resources. One of the great things about federalism is that we have multiple other laboratories of government to look to for ideas on implementing this here.
Might the Legislature try to undo what got us here in the first place by repealing the prohibition on firearm ownership for those convicted of domestic violence? Maybe. But because federal law has the same prohibition, it is doubtful that the Supreme Court would change its mind even if that law were repealed.
I do not exaggerate when I say this is probably the single most impactful state Supreme Court opinion of the 21st century. I believe it was the correct decision, but the consequences of that decision will not be without some pain.
But the quest to properly balance liberty and public safety has never been painless or easy, nor should it be. And these balancing efforts will never be perfect. We as voters can only continue to insist that our government continue to do its best, and refine that balance as best as they can at every opportunity. Anderson is a step in the right direction, made by Supreme Court justices who understand both the nature and importance of our civil rights.
Update on 9/15/19 at 5:00 p.m.: The original version of this column said a third conviction within seven years will land you in prison for one to six years, with no possibility of probation. The sentence is one to five years.
Orrin Johnson has been writing and commenting on Nevada and national politics since 2007. He started with an independent blog, First Principles, and was a regular columnist for the Reno Gazette-Journal from 2015-2016. By day, he is a criminal defense attorney in Reno. Follow him on Twitter @orrinjohnson, or contact him at firstname.lastname@example.org.
This article was originally published in the Nevada Independent on September 15, 2019