By David Zapp, Esq.
Years ago I wrote an article entitled “The Right To A Jury Trial, A Right I Can Do Without.” I said then that juries were not what they were cracked up to be. They were not the bastion of freedom standing between you and the state. In fact, sometimes a judge is far better able to give you a fair trial. Jurors are people with biases that you can’t find out about until it’s too late. With judges, at least you’ll know all their biases and more.
With a judge you can know everything from his rulings to what he had for breakfast. You can get this information from all the lawyers and prosecutors who have ever appeared before him and the law clerks who have worked with him. And since judges are lawyers, they are trained to focus on the issue not the prejudice.
The case of the “cannibal cop” is a case in point. The case was about a defendant accused of fantasizing about eating women—literally eating women as a meal. The defendant never acted upon the fantasy, and except for chatting with a few other kooks who shared his kink, he was all talk. The jurors convicted. The judge had to step in, something judges are loathe to do, i.e., disturb a finding of a jury, and set aside the verdict, holding it’s not a crime to fantasize.
Moral of the story: if you get the right judge and you have a triable case, and I do mean triable–don’t go thinking that a judge is going to always find for you—you mght give serious tohiught to going to trial before a judge and not a jury. I can think of several judges in the Southern District and Eastern District of New York who would definitely give you a fair trial. In fact every courthouse in America has judges before whom you could get a fair trial. I just remind you again that you are going not to get more than a fair trial. You can do fine before juries but as most criminal lawyers and defendants know it is a lot easier to hang a jury than to have them vote in your favor and that is what they are betting on. A hung jury is all you need to escape a conviction or get a favorable plea bargain. It is a disruptive strategy that favors the defendant. A prosecutor never wants a hung jury. But if you have a losing case by all means go with a jury.
The fly in the ointment in Federal court, at least, is that a prosecutor does not have to consent to a non-jury trial. That’s because while you have a “right” to a jury trial, you do not have a “right” to a non-jury trial. But even if the prosecutor doesn’t consent to a non-jury, let the judge know you were willing to go before him to get justice. Can’t hurt, but ultimately, remember, you’re never better than your evidence.