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Back in the early 1970s some enterprising, young legal-aid lawyers filed a creative lawsuit that challenged the procedures for evicting public-housing tenants in Chicago. After the Supreme Court’s landmark opinion in Goldberg v. Kelly (1970), they argued that public-housing residents are entitled to fair hearings before eviction cases are brought. The upshot was the creation of tenant boards, which had to approve every eviction (on grounds other than nonpayment of rent) before the city housing agency could even file a forcible detainer action in court. But the victory proved ephemeral. The residents who volunteered to serve on the boards had little tolerance for their neighbors accused of drug use or violence, or even less harmful infractions like making noise or keeping pets. By the time I joined Chicago’s legal assistance foundation, in 1973, its lawyers had basically given up on the tenant boards. My supervisor told me not to represent clients at pre-eviction hearings, explaining that no one had ever won. I suppose the obduracy of the tenant boards might have given me some interesting insights into the jury system — perhaps ordinary citizens are not really more lenient than “the establishment” — but I was young and idealistic, so I ignored it and continued to put my faith in the judgment of “the people.” And that brings us to the subject of real jury trials in criminal cases. Just about everyone thinks jury trials provide a relative advantage to defendants, and some very high-profile acquittals seem to underscore the point. (Think of O.J. Simpson, Richard Scrushy, the Amadou Diallo case, and Andrea Yates the second time around.) Lawyers and defendants alike have apparently internalized the lesson, overwhelmingly preferring juries to bench trials. Whether they expect common folk to be more incisive or more gullible than judges, more than three-quarters of defendants in federal cases opt for juries when they go to trial. Surprisingly, however, the conventional wisdom about jury trials may be wrong, just as Chicago’s legal-aid lawyers were wrong about tenant boards. In a study published in the Washington University Law Quarterly last year, University of Illinois law professor Andrew Leipold reveals that federal defendants fare far worse before juries than before judges. Between 1989 and 2002, Leipold finds, there was an 84 percent conviction rate in federal jury trials but only a 55 percent conviction rate in bench trials. The gap actually increased over the period, with jury conviction rates holding steady and bench-trial convictions falling dramatically. What’s more, the disparity held true in every part of the country and in every type of case. THE WEIGHT OF DECISION Leipold’s statistics are impressive and convincing, and his article — “Why Are Federal Judges So Acquittal Prone?” — is far more readable than the typical venture into empirical legal studies. Most important, he asks the right questions about his findings: Why is there such a great difference in outcomes between judges and juries? And perhaps even more intriguing, Why do defendants and their lawyers consistently choose the fact finder who is more likely to convict? Exploring the first question, Leipold notes that federal judges have not always been so acquittal-prone. In fact, not very long ago, judges convicted at higher rates than juries, with the current imbalance really taking hold only in 1989. And that timing, Leipold observes, coincides rather neatly with the November 1987 effective date of the mandatory federal sentencing guidelines, which drastically limited judges’ traditional discretion in sentencing. Many federal judges considered the guidelines draconian or worse, requiring them to impose overly severe sentences in case after case. Thus, Leipold conjectures, the increased bench-trial acquittal rate may reflect judges’ reactions to the guidelines. “Put more bluntly,” he says, “judges may acquit more often because they found it to be the only way to avoid imposing an unjust sentence they know would follow a conviction.” I doubt that any judge would admit to intentionally acquitting a guilty defendant. That would amount to disrespect for the law. Still, the reality of extra-harsh punishment might well serve to focus judicial attention on the burden of proof. It’s well recognized that people tend to take weighty decisions more seriously, so it’s reasonable to think judges might do the same, deliberately or not. And who knows? Maybe preguideline judges were conviction-happy, deferring to prosecutors and throwing doubt to the winds. In any event, we may soon have a preliminary answer to this question, since the Supreme Court partially invalidated the guidelines in United States v. Booker (2005). Now that judges are freed from the most confining strictures of mandatory sentencing, it is possible that post-Booker bench trials will begin to return more convictions. ARE THEY STUPID? But whether or not the current trend continues, we still have to wonder why defense lawyers have spent 15 years demanding jury trials when it appears that judges would have been nearly three times as likely to acquit their clients. There are two possible explanations: Either defense lawyers are really stupid, or they are very smart. According to the stupid-lawyer theory, defense attorneys have simply failed to notice that juries are now much tougher than judges. No matter that juries have regularly sent innocent defendants to prison (in Illinois alone, at least 18 innocent men were sentenced to death after jury convictions), lawyers have remained faithful to an ideal of jury as protector that has long been eroded by the public celebration of law and order. Alternatively, it might be the (guiltiest) defendants themselves who are stupid, refusing bench trials because they have deluded themselves into believing they can bamboozle a jury of their peers. On the basis of my experience, however, I tend to favor the smart-lawyer explanation. The disparity between bench and jury convictions may well reflect a successful strategy on the part of defense counsel, who astutely select the best fact finder for each case. Under this hypothesis, defense lawyers take their best cases to bench trials because they believe that judges will be more adept at recognizing reasonable doubt. In weak cases, however, where the prosecution evidence is strong to overwhelming, they prefer jury trials in the hope that lightning might strike. A public defender once explained it to me succinctly. “Our job,” he said, “is to win bench trials and lose jury trials.” That was many years before Leipold’s conclusive study, but he accurately predicted the result. MORE SECOND CHANCES There is another possible explanation for defense lawyers’ seemingly counterproductive preference. In a bench trial, you either win or lose. In a jury trial, you can win, lose, or get a do-over. A do-over, a hung jury, is preferable to a conviction but does not show up in Leipold’s statistics. Remember, it only takes one juror with a reasonable doubt to hang a jury. And after a mistrial it is not unusual for the prosecution to tender a better plea bargain, perhaps by dismissing the more serious counts, in which case there would be no retrial. We don’t know how often that happens, but the potential for a hung jury (and the attendant post-trial benefits) could certainly influence defense lawyers’ choices. Even when a jury convicts, there is always the possibility that the judge will give the defendant a do-over. U.S. District Judge Jack Weinstein recently did just that in the closely watched “Mafia cops” case in Brooklyn. After the jury found two ex-New York City police officers guilty of murder and conspiracy for their involvement in eight mob assassinations, Weinstein threw out the convictions on statute-of-limitations grounds. Referring to the defendants as “heinous criminals” who had been “found guilty on overwhelming evidence of the most despicable crimes of violence,” Weinstein nonetheless released them because he concluded that the “Constitution [and] statutes” required it. It would have been difficult for a jury to acquit on such a “technicality,” said one of the defense lawyers. Indeed. Finally, let’s consider the matter of, well, respect for the jury process. While no sane defendant would prefer conviction to acquittal, I suspect that many find it easier to accept conviction after a jury trial. “If I’m going to do time,” I’ve heard it said, “I want a jury to tell me that I’m guilty.” Even criminals, it turns out, may have faith in the system.
Steven Lubet teaches law at Northwestern University in Chicago. His latest book is Lawyers’ Poker (Oxford University Press, 2006).

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