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A voter-approved amendment to the Pennsylvania constitution granting prosecutors the right to request a jury trial is constitutionally sound, a unanimous Pennsylvania Supreme Court has ruled. “In short, appellants, like all defendants, have a constitutional right to trial by jury but such a right simply does not include any corresponding constitutional right to be tried non-jury,” Justice Russell M. Nigro wrote for the court in Commonwealth v. Tharp. “Thus, contrary to appellants’ argument, providing the commonwealth with the right to trial by jury does not violate any constitutional right held by defendants,” Nigro wrote. “In fact, granting the commonwealth such a right does nothing but ensure the defendant that, should the commonwealth invoke this right, ‘the result is simply that the defendant is subject to an impartial trial by jury — the very thing that the constitution guarantees him.’” The case came before the high court by way of interlocutory appeal from two Washington County, Pa., murder cases consolidated for appeal. Washington County District Attorney John C. Pettit represented the commonwealth. Glenn Alterio of the office of the Washington County public defender argued the case before the high court on behalf of Michelle Sue Tharp and Douglas Bittinger. Washington County attorney David J. DiCarlo represented Bittinger. Voters approved the ballot amendment that changed Article I, Section 6 of the state constitution in November 1998. The amendment was passed when a majority of electors answered “yes” to the following question: “Shall the Pennsylvania Constitution be amended to provide that the commonwealth shall have the same right to a trial by jury in criminal cases as does the accused?” Pennsylvania Gov. Tom Ridge certified the amendment in December 1998. The Rules of Criminal Procedure were amended effective July 1, 1999, to reflect the constitutional amendment. Tharp and her live-in boyfriend Bittinger are accused of starving to death Tharp’s 7-year-old daughter Tausha Lanham. The couple is accused of then placing the girl’s body in a garbage bag, driving to West Virginia and leaving the body along a rural road before reporting the girl missing. Murder charges were filed in June 1998 against both Tharp and Bittinger, and the commonwealth indicated it would seek the death penalty if they were convicted. Both pleaded not guilty to the charges against them. Jury selection was set for June 14, 1999, with the trial to begin in September. Both were granted a continuance. In June 1999, Tharp and Bittinger waived their right to a jury trial and requested a judge to hear the case. The court accepted and waived the rights. The prosecutor then asserted the commonwealth’s right to a jury trial as provided by the 1998 voter-approved amendment. Given the amendment, the trial court granted the prosecutor’s request for a jury trial. The defendants appealed. The Superior Court denied the defendants permission to appeal the issue, but the Supreme Court granted allocatur to determine the constitutionality of the amendment. Tharp and Bittinger are being tried separately, but for appeal purposes, the cases were consolidated on the issue of the commonwealth’s right to a jury trial. On appeal, Tharp and Bittinger argued that the amendment deprived defendants of their right to a jury trial, which, they argued, included a right to waive that right. Nigro noted that, while the state constitution does not provide defendants with a right to be tried without a jury, the Rules of Criminal Procedure grant defendants the right to waive a jury trial. “However, by requiring defendants to obtain court approval before a jury waiver will be accepted, these rules of criminal procedure further negate appellants’ argument that defendants have an absolute and inviolate right to waive their right to a jury trial.” Nigro said Tharp and Bittinger’s argument seems to say that only defendants can speak as to their right to a jury trial. The court said such a notion ignores the fact that the people of the commonwealth have the right to vote to amend their constitution. Tharp and Bittinger also asked the court to make July 1, 1999 — the day the rules were amended — the effective date of the amendment. The court noted that a constitutional amendment becomes effective upon approval from the electorate unless another date is determined. Here, the court said the prosecution’s request for a jury trial was made after the voters decided to amend the constitution. “Moreover, the plain language of amended Article 1, Section 6 contains no provision conditioning its effective date upon the passage of any court rules or legislation, Nigro wrote. “Thus, contrary to appellants’ assertions, the amendment’s operative date is not dependent on this court’s revised versions of Rules 1101, 1102 and 1103 taking effect.” DiCarlo, Bittinger’s attorney, said he is generally “disappointed” with the decision. He said although he thinks the high court’s decision is “a well-reasoned opinion,” he fundamentally disagrees with the court’s analysis. “I think this is a basic fundamental right of the accused,” DiCarlo said. “We’re in a society where we keep passing these constitutional amendments which erode the ability of a good lawyer to defend his clients.” DiCarlo also said he was surprised that the decision was unanimous. Pettit and Alterio could not be reached for comment Wednesday afternoon.

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