By Mark David Blum, Esq.

The Sixth Amendment to the United States Constitution states in relevant part that, “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” Apparently that rule applies everywhere but here in Onondaga County.

Here is the problem (hypothetically speaking of course): Let us assume I represent a client accused of a petite larceny. Specifically, let us assume he is a firefighter in the City and though no money was ever taken and nobody saw the firefighter take any money, (in other words, no crime and no victim). But thanks to skilled interrogation techniques of Syracuse police detectives, the firefighter ended up confessing to a crime that did not occur. Based solely on that confession, the District Attorney of Onondaga County is demanding a full plea or conviction for petite larceny. The defendant has no prior criminal history. All hypothetically speaking, of course.

Obviously a person accused of a crime that he did not commit will stand up for his innocence. Let us assume further the accused firefighter wants to prove his innocence by exercising his constitutional right to a jury trial. In Syracuse, he will not get that right honored.

Apparently, somewhere back in recent history, Hon. James Tormey, Supervising Judge of the Fifth Judicial District and Sid Ogelsby, Onondaga County Commissioner of Jurors, along with others unknown, changed our County’s jury system. At law, the burden of bringing a defendant to trial rests upon the Prosecution. By manipulating these new rules to their advantage, prosecutors have been able to prevent defendants from having their rights vindicated or to even have access to a jury.

Being not very familiar with the nuts and bolts of how the allocation of jurors goes in this County; my basic understanding is that prosecutors are required to advise the Commissioner of Jurors as to how many juries they need the week following. This is how the pool of available jurors is selected. Further, I understand that jurors are then prioritized to County Court criminal cases before City Court criminal cases. The end result is that there is usually a small pool of jurors available for Syracuse City Court trials.

Twice now in one of my cases, prosecutors have used this system to their advantage and to the detriment of the Substantive Due Process rights of a criminal defendant. Again, hypothetically with the firefighter: He demands his right to a jury trial and the Court sets a date certain for trial. The defense does all that is required to prepare for trial and shows up ready to proceed. But, the Assistant District Attorney appears in casual court room attire and announces we are not going to trial because there is no jury. What the D.A.’s office is doing in City Court is double booking more than one trial but ordering one jury on the assumption that at least one trial will settle.

When there was no jury available, the City Court Judge dressed down the prosecutor about not ordering a jury and a new trial date is set. Again, like before, the District Attorney failed to report that they had two trials scheduled and again there is no jury for the Defendant. None of this time is chargeable to the Prosecution. (But see Barker v. Wingo, 407 U.S. 514 (1972)). Once again, the defendant is required to stand down, put his life on hold, and await yet another trial date.

The question of when does a person have the right of repose; when can they stop worrying about an issue and move on with their life is a fundamental issue of this discussion. Manipulating the current system to deny a defendant the right to a jury trial just because the District Attorney has no case is a cruel abuse of legal process.

What is really offensive is that the District Attorney can keep doing this freely with impunity. There is no sanction, no relief at law, no way to compel the District Attorney to present his case to a jury or dismiss it. Hiding behind the skirts of the new jury pool procedures, prosecutors are behaving in a cowardly and constitutionally offensive manner. All our freedoms are at stake.

Respectfully, if we are going to have a viable and honorable jury system in Onondaga County and the City of Syracuse, then a revamping and restructuring is required. Prosecutors must be required to order juries and risk being declared Not Ready to Proceed if no jury is ordered or delivered by the Commissioner of Jurors. While the D.A. can whine about the problem not being his responsibility; it is the District Attorney and the not the defense attorney who can have the most impact upon changing the system. If the District Attorney was pressured by the system to do his constitutional job, then I have no doubt every court room in the County would be filled with jurors. Cases are backing up by the hundreds and prosecutors seem loathe to accept responsibility.

Somebody has to stand up for the constitutional rights of the citizens. We do not serve at the convenience of government. It is the opposite: Government and the constitutional mandates thereof are in place for the protection of the individual citizen. Failure to protect a citizen’s right to a speedy trial by a jury of his peers is among the most offensive affronts to our basic tenets.

I call upon Judge Tormey, Sid Ogelsby, the presiding judge of the Syracuse City Court, and anybody else who is involved in the process to make drastic changes to the current system. People are being hurt, money is being wasted, and in the end the District Attorney has an unfair advantage in criminal litigation. They get to keep on going on and on and on and on and on and never bring a case to its rightful conclusion. Defendants are helpless as they and their attorneys get ground into hamburger by a violent system with no end.

In the hypothetical case presented above, the reason why prosecutors won’t go to trial is obvious. But if that were a real situation with a real defendant falsely accused but denied a chance to clear his good name, then the violence being done to his rights and to yours is a great shame.