U.S. Supreme Court

Can a nonlawyer judge send you to jail? Supreme Court is asked to hear case

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A cert petition pending before the U.S. Supreme Court shines a light on the power of some nonlawyer judges in the United States.

The cert petition (PDF) asks whether a defendant’s due process rights are violated when he is tried by a nonlawyer judge with the power to send him to jail, and there is no opportunity for a new trial before a judge who is a lawyer. The Sixth Amendment Center has a story, and the SCOTUSblog case page is here.

The petition was filed on behalf of defendants Kelly Davis and Shane Sherman. They were tried before a nonlawyer judge in Montana who was previously a prevention specialist in a dependency program, and a cashier and meat wrapper at a grocery store.

Nonlawyer judges in Montana need only complete about 28 hours of study, while barbers in the state have to complete at least 1,500 hours of study, the cert petition says.

Thirty-one states have some courts where judges don’t have to be a lawyer. In 22 of those states, nonlawyer judges preside in misdemeanor and ordinance violation cases carrying the possibility of jail time, according to the Sixth Amendment Center. In 14 of those states, the defendants have a right to a de novo trial before a judge who is a lawyer, and in eight of those states, the defendants don’t have a right to a de novo trial, though they can appeal to a higher court where the judge is a lawyer.

That means defendants in those eight states who choose to appeal will have to rely on the record made in the nonlawyer court, the Sixth Amendment Center points out. The center lists the eight states as: Arizona, Colorado, Montana, Nevada, New York, South Carolina, Texas and Wyoming.

The U.S. Supreme Court previously ruled in the 1976 case North v. Russell, that the due process clause is not violated when a criminal defendant is tried by a nonlawyer judge and the defendant has a right to a new trial before a judge who is a lawyer. The decision expressly left open the issue whether due process rights are violated when the defendant’s only trial is before a nonlawyer.

The cert petition calls the use of nonlawyer judges “a vestige of an earlier era” when lawyers were scarce, criminal trials were simple, and every town had its own criminal court because travel by car and communication by telephone was not possible. “What was once a necessity is now a historical relic that survives only in a handful of jurisdictions,” the cert petition says. “Montana, however, has moved in the opposite direction.”

For 108 years, defendants facing incarceration who were tried by nonlawyer judges in Montana had the right to a new trial for a judge who was a lawyer. “But Montana removed that guarantee in 2003, to save money,” the cert petition says.

Hat tip to the Marshall Project.

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