This bill would make it harder for defendants to waive a jury trial. Some say it goes too far.
John "Jake" O'Neil came face to face with his killer, Christian Lepore, in the West Greenwich woods on May 28, 2016.
Naked, grunting, Lepore savagely beat the 62-year-old craftsman to death with a barrel upon encountering him outside his woodshop.
It was a heartbreaking and horrifying case that played out over a five-day bench trial before Judge Brian P. Stern in Superior Court. Ultimately, Stern delivered a ruling finding Lepore not guilty by reason of insanity. He concluded that Lepore was experiencing a psychotic breakdown at the time of the killing and was unable to appreciate the wrongfulness of his actions.
Lepore, now 42, had undiagnosed paranoid schizophrenia, a forensic psychiatrist determined. He remains in the custody of the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals.
Lepore’s lawyers, Joseph Voccola and Robert D. Watt Jr., opted to have the case heard by Stern alone, instead of a jury, because of the sensitivity of the facts.
“Some cases should not be tried by a jury,” former assistant public defender Michael DiLauro said in a recent interview.
The ability for defendants to waive their right to a trial by jury helps the court resolve difficult cases, like those in which a defendant's sanity is being questioned, said DiLauro.
Legislation to change the jury waiver system
Now, legislation is being considered at the State House that would change the law governing criminal bench trials by requiring the state's consent to waive a jury trial. The change would bring the state in line with federal court practice and 31 other states plus the District of Columbia.
The bill is sponsored by Senate President Dominick J. Ruggerio at Attorney General Peter F. Neronha’s request.
“I first learned about this issue from Attorney General Peter Neronha. I decided to submit legislation because it is an issue that merits more thorough review through our public committee hearing process,” Ruggerio said in a statement. “The federal system provides a similar requirement that both parties agree when a jury trial is going to be waived. I look forward to the committee hearing process.”
Similar legislation has not yet been submitted in the House, but spokesman Larry Berman said it was included in a package recently forwarded by Neronha.
“At his request, all will be introduced by various representatives in the coming days,” Berman said via email.
'This is wrong'
Neronha vowed to push to change the law after Superior Court Judge Daniel A. Procaccini acquitted a Barrington dentist of assaulting a Muslim neighbor in a high-profile hate-crime case.
The attorney general took his criticism of the system to the social-media platform X, formerly Twitter, and continued the campaign in a series of interviews.
“Rhode Island … allows for a jury-waived trial whenever a defendant in a criminal case wants one. The constitutionally preferred method of determining issues of fact – a jury of 12 peers – is replaced by a judge. In these situations, the state’s view doesn’t matter … And through the prosecution, the victim’s views and the broader public’s views, don’t matter,” he said in a statement.
“This is wrong. It should be changed. And I am determined to fight to change it at the General Assembly on behalf of victims and the public,” he said.
Why defense lawyers, public defenders are lining up against the bill
The law allowing an accused person to waive a trial by jury has been in place for 95 years, since 1929. In addition, the practice is dictated by a state Superior Court rule of criminal procedure, instituted in 1972, specifying that cases be tried by jury unless the defendant waives a jury trial in writing in open court with the approval of the judge.
If the law changes, the rule too must change.
State law gives the Supreme, Superior, Family, District and Workers' Compensation courts the authority, by the majority of their members, to make rules regulating practice, procedure and business in each of the respective courts.
“If the General Assembly passes the bill and the governor lets it become law, there will be a conflict between the law and the rule. The court is going to have to weigh in on this,” DiLauro said.
The state Association of Criminal Defense Lawyers is preparing to oppose the bill, saying it "dramatically alters" the established right of criminal defendants in Rhode Island.
"The Rhode Island Association of Criminal Defense Lawyers opposes this bill that dramatically alters a long-standing right of criminal defendants in this state. Our organization looks forward to providing the historical, constitutional, legal and practical rationale for not requiring government consent when a criminal defendant is seeking a jury-waived trial," Kara Hoopis Manosh, RIACDL president, said in a statement.
"Our state has a proud history of providing criminal defendants with fair trials, and there is certainly nothing to suggest that such a radical change is needed now," she continued.
The state public defender's office is also in opposition to the legislation, which Public Defender Collin Geiselman said "would upend Rhode Island’s historical criminal trial practice and dramatically dilute a long-standing right of criminal defendants in this state."
"This proposed bill is bad for public policy, violates a defendant’s absolute trial rights, and violates the separation of powers doctrine," Geiselman said in an email.
He noted, too, that while the proposed bill seeks to have Rhode Island law match federal practice, there is a current push by the American College of Trial Lawyers to weaken the government’s right to oppose a bench trial. They are trying to amend the federal rules.
"The judiciary is not commenting on this bill at this time," Lexi Kriss, spokeswoman for the courts, said in an email.
In DiLauro’s view, the bill to change the bench trial system presents a separation-of-powers issue, with the legislature treading in the judiciary’s domain. Separation of powers is the division of the government into three separate branches – the executive, legislative and judicial – all with distinct roles and responsibilities.
DiLauro ponders, too, what impelled the Superior Court to deliberately enshrine the waiver of a jury trial in a criminal case in its rules in 1972.
“You are changing something that’s not broken. It’s a problem that doesn’t exist that’s searching for a solution, in my mind,” DiLauro said.
Brian Hodge, spokesman for Neronha's office, did not respond to email, phone and text inquiries.
The right to a jury trial
After delivering the verdict in the Barrington dentist case, Procaccini ordered Neronha to court over social media posts the attorney general made that the judge believed impugned his integrity and misled the public as he was deliberating.
In fighting Procaccini’s order, Neronha cited figures indicating that jury trials were waived in about 17% of criminal cases prosecuted by the state in the Superior Court over the last 10 years. He argued that the records showed that two of the 24 Superior Court judges who presided over these cases were responsible for conducting 56% of all jury-waived criminal trials during that period.
“These statistics amplify the attorney general’s concerns about the diminution of the right to a jury trial in criminal cases,” the state wrote.
Procaccini and Superior Court Judge Melanie Wilk Thunberg, who sits in Washington County, are the two judges referenced.
More: 'Unprofessional and unethical': Judge castigates attorney general over social media posts
Judge Procaccini fires back
Procaccini fired back with statistics produced by the court itself that showed Superior Court judges presided over 388 trials in that time, including 109 bench trials conducted by 15 judges, representing 28% of all trials.
The data showed that Procaccini presided over 31 bench trials during that period, resulting in 19 guilty verdicts or no-contest pleas, translating to a 61% conviction rate. The court’s statistics showed, too, that Procaccini had overseen 35 jury trials resulting in 21 guilty verdicts for a 60% conviction rate – a difference of one percentage point.
That data presented by the judge demonstrated that the state’s conviction rate at trial before Procaccini is nearly identical in bench and jury trials – contrary to Neronha’s implication that he and Judge Thunberg were predisposed to finding defendants not guilty, Procaccini said in a Dec. 8 statement addressing the social media posts.
“The attorney general’s social media posts, press releases and media interviews are false, deliberate and reckless statements attempting to disparage and impugn both the integrity of Superior Court bench trial process and this court’s integrity in presiding over bench trials,” the judge said in filing a complaint with the judiciary’s disciplinary board accusing Neronha of violating the Rules of Professional Conduct governing lawyers.
While disciplinary investigations are confidential, formal charges are heard in proceedings open to the public.
Retired District Court Judge Stephen Erickson, in turn, filed a complaint against Procaccini with the Judicial Tenure and Discipline Commission.
Does this campaign have legs?
It’s unclear how much momentum the legislation will have, but it plainly has Senate President Ruggerio’s support.
“If he’s the lead sponsor, it’s going to get serious consideration,” Rep. Robert E. Craven, Sr., D-North Kingstown, chair of the House Committee on the Judiciary, said.
Craven said he would remain open minded about the bill.
“In my own experience, I don’t see a need for it based on the statistics,” said Craven, a lawyer who practices in North Kingstown.
“There are some rights a defendant should have,” Craven said, referring to Thomas Jefferson’s premise that it's better to let a guilty man go free than risk putting an innocent man behind bars.
Senate Judiciary Chairwoman Sen. Dawn Euer, D-Newport, who is a lawyer, was out of the office through Feb. 26 and not available for comment.
Vice Senate Judiciary Chairman Sen. Frank S. Lombardi said in an email that he did not support the legislation.
"Our system is based on constitutional rights afforded an accused. If that accused wishes to waive a jury, I believe it rises to a fundamental right to do so. Prosecutorial discretion has no bearing under that formula!" Lombardi wrote.
For DiLauro, it would be a shame if “intelligent, thoughtful” judges, such as Procaccini and Thunberg and others, no longer have the latitude to waive a jury in tough cases without the state’s consent.
“To say no just because the attorney general doesn’t like it just isn’t right in my mind,” he said.
Editor's note: A previous version of this story misidentified the organization Michael DiLauro lobbies for. He is registered with his own firm, The Just Criminal Justice Group, LLC.
This article originally appeared on The Providence Journal: Bill would make it harder for defendants to waive a trial by jury
