Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

FOUR ISSUES YOU SHOULD CONSIDER WHEN DECIDING WHETHER TO HAVE A JURY OR A JUDGE DECIDE YOUR CRIMINAL TRAIL

Baltimore Police Officer Edward Nero, hereinafter, the “Defendant”, has made a fairly unusual decision.

The Defendant is one of three officers who arrested 25-year-old Freddie Gray, a man of color, about a year ago. Mr. Gray apparently made eye contact with one of those officers and then allegedly began running in a high crime area. Upon arresting him…for something… the officers took Mr. Gray into custody and placed him in the back of a police van.

When the van arrived at the police station 45 minutes later, Mr. Gray was critically injured.

Mr. Gray died a week later, sparking protests and fueling the Black Lives Matter movement, becoming a rallying cry in the growing national conversation about the treatment of black men by police. On the day of his funeral, rioting and looting broke out and a city-wide curfew was imposed as the National Guard rolled in to help restore order.

 

 

The Defendant faces charges for assault, reckless endangerment and misconduct in office. His trial is scheduled to begin Tomorrow and is expected to last about five days. The trial is seen as a bellwether case for the other two arresting officers who face the same charges. They have all pleaded not guilty.

The Defendant is the second of the three officers to go to trial . Late last year, a jury couldn’t reach a unanimous decision in the case against one of the other officers. This means that there has not yet been a verdict in the matter.

In the meantime, according to the Boston Herald has announced that the Defendant has  decided that, rather than be tried before a jury, he would rather have what is known as a “bench trial”. This practically guarantees that there will be a verdict.

Attorney Sam’s Take On The Choice Of Judge Or Jury In Your Criminal Trial

The Defendant’s decision is not typical.

Usually, in a criminal matter, the defense wants a jury. Very likely this decision was informed by the co-defendant’s trial and how that ended.

“But, Sam, isn’t a ‘hung jury’ considered a ‘win’ for the defense?”

Often, but not always. It is encouraging that the jury did not agree on a ‘Guilty’ verdict, but it is discouraging that they did not agree on a verdict of ‘Not Guilty’. Both sides usually sit back and re-evaluate their case after a hung jury. Sometimes a deal is made…sometimes the case is re-tried.

While most criminal defendants, and defense attorneys, prefer jury trials, there are various things to consider when making the decision of which way to go. Here are a few of them:

  1. Understanding Of The Issues  …As smart as jurors often are, they sometimes are not able to fully comprehend some of the more technical legal arguments that might be made. Likewise, if the evidence itself gets rather technical, some jurors have been known to catch up on their sleep. A judge will likely have the experience to grasp such issues and, if not, will inquire…which jurors cannot do. So, if grasping and understanding the issues is something you want the fact finder to do…this is a point for going with a judge. Of course, if you do not want the fact finder to be able to comprehend it…your best bet would be a jury on that particular point.
  2. One Decider, Biased Or NotSome lawyers feel that a disadvantage of having a bench trial is that you’re putting all your eggs in one basket. There can be no hung jury (usually). It’s all or nothing. Another concern is bias. Whoever the fact finder is, it is supposed to be unbiased. Judges work very hard to be unbiased I am sure. However, they remain human beings.I have experienced judges who have become a bit jaded by their years as a judge, not to mention what they did as lawyers before taking a judgeship. That bias is often the  assumption that the defendant is probably guilty.One good thing is that I believe that most judges try to steel themselves against making decisions based upon their bias. However, as noted, they remain only human.
  1. Pre-trial PublicityIn many cases, such as that of the Defendant, there is pre-trial publicity. Such publicity can effect prospective jurors who then become actual jurors. Thus it can be another cause for concern that jurors might likely be inherently biased, having already formed opinions about the case and its players, and might feel pressure to render a guilty verdict in order to quell any future unrest.While, again, judges are human beings, it is believed that judges are less likely to fall prey to such things.
  1. Sympathy And Other Emotions…Every jury is told that it is not to make a decision based upon sympathy or any other emotion.Again, of course, jurors are human beings.In this case, judge is really your best bet if you want the fact finder not to reach a verdict based on emotion. If, however, you think that the consideration of emotion is likely to be on your side, you will probably want a jury.On the other side, if you have determined that your lawyer, your witnesses or even you come off as very unlikeable …that’s a point toward going with a judge.

So, as you can see, it is not a “one size fits all” decision. As most with most things in the criminal justice arena, it depends. So, how do you decide?

Discuss it with your very experienced criminal defense lawyer.

Don’t have one?

Hmmm. That’s a mistake.

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