Appellate Law

Hoston's oversimplifications are misleading

By S. COTUS

CNN has a "Commentary" piece by Sunny Hoston, whom Wikipedia tells me went to Notre Dame, was a beauty queen, and then clerked for Chief Judge Robert Bell of the Maryland Court of Appeals.  Wikipedia's article (seemingly written by a publicist) also tell me that antitrust lawyers in DOJ are the "smartest" and that she was a "tough as nails" prosecutor (whatever that means.)  Are there some prosecutors that are "tough as brie?'  Are the folks in the Tax Division less smart? Whatever the case, the prosecutin' life was not for her, and she married a doctor and moved to Westchester.

Anyway, she writes the most bizarre article on CNN about a recent trial. She writes:

I predict that the Sean Bell case will be examined in law school classrooms across the country.

Granted this is a prediction, aimed at non-lawyers, and it doesn't need to be backed up by much.  However, Ms. Hoston doesn't explain that with the exception of trial practice courses, most law school classes don't examine trials.  That isn't the way law is taught in the United States.  She knows this.  But, because she is talking to non-lawyers, she omits this fact.

The Sixth Amendment to the Constitution ensures that we have the right to a trial by a jury of our peers in a serious criminal case. But as with all rights, you can voluntarily, knowingly and intelligently waive that right and instead have your case tried by a judge.

This simply is not the law.  She should know this.  Under the Federal Rules of Criminal Procedure, there is no right to unilaterally waive a right to a jury trial and opt for a bench trial.  Fed. R. Crim. P. 23(a).  This restriction has been upheld by the courts.  (E.g. US v. US District Court).  In fact, there is no absolute right to plead guilty, either.  But, when talking to the lay people she neglects to mention this.  In New York state courts, however, people can unilaterally waive their right to trial before a jury.  However, she erroneously (and perhaps deliberately) neglects to inform the public of this distinction. 

Is this another example of lay-people trolling, or did she genuinely not know this?

Full post as published by Appellate Law and Practice on April 26, 2008 (boomark / email).