As a former prosecutor, I can tell you that any policy of the district attorney which limits or encroaches on individual prosecutors’ discretion is one which will inevitably lead to overcrowded dockets. This is so because cases which have problems of proof from the prosecution’s point of view require the full panoply of inventive plea bargaining tools in order to reach a resolution short of trial.
I’m speaking here of reductions of Class A and B misdemeanors to Class C misdemeanors (which are on the level of a traffic ticket, fine only, and are able to be expunged), pretrial diversion, or outright dismissal. Since the number of cases in the criminal justice system requires that approximately 90% of the cases be resolved by plea or dismissal, any increase in the percentage of jury trials threatens to cause the breakdown of the system.
Traditionally, the Bexar County District Attorney’s office has eschewed these tools; office policy severely limits what misdemeanor prosecutors can offer as part of a plea bargain. Reductions to Class C misdemeanors are prohibited, except in the case of some family violence offenses. Dismissals often require the approval of “higher-ups.” At any rate, until recently, the growing backlog of misdemeanor cases seemed not to matter to the district attorney.
This changed, slightly, at the beginning of the year, when it became evident that the misdemeanor prosecutors had been instructed to waive juries in all misdemeanor cases, regardless of offense or court. A little background: in order to waive a jury in a criminal case in Texas, both parties (defense and the State) must agree to the waiver. Traditionally, waiver of a jury was a strategic decision on both sides, requiring a little educated guesswork on how the judge would view the particular issues in the case at hand. The effect of a jury waiver means that the trial will take much less time in most cases, because the time spent picking a jury and also some other parts of the trial are reduced or eliminated.
By unilaterally commanding that Bexar County prosecutors waive juries in all misdemeanor cases, the Bexar County District Attorney’s office has signaled that the expedition of cases is now taking precedence over winning trials. Since this policy was instituted, I’ve won several cases by waiving a jury in the correct court and under the right circumstances.
This is an interesting development for another reason: it is fairly stealthy, since it’s not likely to find its way into the media, and the motivation for the policy is not completely obvious to laypeople even if it did. Hence, it is politically neutral (and needless to say, this is an election year for the district attorney). This policy is the second one intended to reduce the number of jury trials (the first being the institution of the obstruction of a highway plea offer for certain DWIs).
For citizens accused of a misdemeanor in Bexar County, a detailed and intensive discussion with your attorney is necessary to reach an informed decision as to whether to waive a jury in your case.