Acquittals in Sean Bell Case Point Out Advantages of a Non-Jury Trial

Mark Fass

New York Law Journal

The U.S. Constitution may guarantee the right to a jury trial, but as the verdicts in the Sean Bell case proved once more on Friday, that does not always make it the best option.

New York Supreme Court Justice Arthur J. Cooperman's verdict of not guilty on all counts for the three police officers accused of killing Bell outside a Queens strip club on the eve of his wedding serves as a reminder as to why many defendants -- particularly those who work in law enforcement -- leave the judgment to the court.

In conversations following Cooperman's decision Friday morning, defense attorneys and former prosecutors cited numerous traditional reasons defendants opt out of a jury trial, as well as a few quintessentially contemporary ones.

The key impetus for opting out of a jury trial, all agreed, is emotion, more specifically the emotions that law enforcement officials continue to stir in certain jurisdictions.

"With a jury, there's always a chance that emotion can enter the process," said Mark Bederow of Thompson Hine, who recently represented R. Lindley Devecchio, the former FBI agent who opted for a bench trial in his successful defense of four murder charges.

"With a judge, the expectation is that [the decision] will be purely on the facts and the law, and that extra-judicial influences will not play a role. And I think you saw that specifically in the Bell case."

Cooperman, who was first appointed to the Queens bench in 1982, lived up to his reputation as a veteran judge unlikely to be swayed by extraneous issues.

"An objective consideration of the proof ruled out sympathy and prejudice and any other emotional response to the issues presented. The court did not view the victims or the NYPD as being on trial here," Cooperman said in a statement he issued as he announced the acquittal. "The police response with respect to each defendant was not proved to be criminal, i.e., beyond a reasonable doubt. Questions of carelessness and incompetence must be left to other forums," Cooperman wrote.

The three defendants, Gescard Isnora, Marc Cooper and Michael Oliver, were represented respectively by Anthony Ricco, Paul Martin and James Culleton.

Other reasons for foregoing a jury cited by the attorneys included the reputation of the judge who lands the case, whether the charges turn on a complex legal issue and the still-explosive ramifications of race.

Robert Koppelman, whose client Christopher Aldorasi faces more than 25 years for his role in a ring that illegally sold human body parts to biomedical companies, cited almost all of these factors in deciding to allow Brooklyn Supreme Court Justice Albert Tomei decide the case.

"It's pretty simple. It's nothing arcane," Koppelman said. "It's just that the background to the whole [human body parts] case is just kind of ugly, gruesome. I felt that this is something that could be overcome by the judge, but not so likely to be overcome by the jury. The issues in the case were pretty much legal issues, rather than credibility issues ... And especially I thought this was a judge who could be fair and not be overcome by emotions."

One highly charged case mentioned by attorneys Friday was the 2000 trial of the police officers charged with shooting Amadou Diallo, an unarmed street vendor from Guinea, outside his Bronx apartment building. That case was tried before a jury, which acquitted all four defendants. But as one expert noted Friday, there was one significant difference between the Diallo and Bell cases.

As the expert noted, the jury pool in Albany, where the Diallo case was transferred from the Bronx, has likely had "more positive experiences with police officers than [have] jury pools in certain neighborhoods here in New York."

Charles A. Ross, the former chair of the white-collar defense group at Herrick Feinstein and currently the principal of Charles A. Ross and Associates, said that electing a bench trial for police-officer defendants was an entrenched strategy when he first practiced law in the Bronx in 1981.

"The [Bell case] is one in a long line of cases where the strategy was effectively deployed," Ross said. "This strategy will continue, and if you're a defense lawyer, appropriately so."

Like the rest of his colleagues, Ross refrained to list a distrust of juries as a reason for choosing a bench trial.

"I think more often than not, juries get it right," Ross said. "There may be a popular perception that juries can just have the wool pulled over their eyes, but not in my experience."

Though leaving the decision to the judge may be an age-old strategy, at least one new factor may make it an increasingly popular one: the omnipresence of modern media.

"Overall, it's the same strategic call," said Sung-Hee Suh, a litigation partner at Schulte Roth & Zabel and a former deputy chief in the U.S. Attorney's Office for the Eastern District of New York. But "heightened media attention and the rise of the Internet" cause news to spread ever-more quickly, thereby sensationalizing cases and encouraging "lawyers to think a little more seriously about the route of a bench trial," she said.

On Friday, the Federal Bureau of Investigation, the U.S. Attorney's Office for the Eastern District and the Civil Rights Division of the U.S. Department of Justice announced they will conduct an independent review of the Bell shooting.

If the three acquitted officers do indeed face federal charges, their attorneys likely will not have an opportunity to again opt for a bench trial. In federal courts, both sides need to agree to give up the right to a jury trial, and if recent history is a guide -- see for example the federal trial of the officers charged with assaulting Abner Louima -- prosecutors will be loath to take the decision out of the jury's hands.

"I think the odds are extraordinarily low that federal prosecutors would consent to the waiver of a jury in this case," Ross said. "I just don't think that there's an incentive to do that."