Seebach: It seems federal judges, not juries, more likely to acquit

Saturday, July 22, 2006

If you were going to trial on federal criminal charges, would you want your case tried by a jury or by a judge? A majority of defendants, whether by their own choice or the advice of counsel, opt for a jury trial.

Is that the best strategy? Very likely not, according to a study by Andrew Leipold, a professor at the University of Illinois College of Law. In a study of 77,000 federal criminal trials completed from 1989 through 2002, Leipold found that judges holding bench trials, that is without a jury, convicted slightly more than half the time. The average conviction rate for juries was 84 percent.

Of course what is best on average is not necessarily the best for you in the particular circumstances in your case, but you might want to take pains to ensure that your defense attorneys are acquainted with Leipold's results. Most of the defense attorneys he interviewed thought exactly the opposite was true - as Leipold concedes he did, too, before he did the research.

In addition to finding that judges acquit more often than juries, Leipold discovered that this observation is relatively recent. From the early 1960s to the late 1980s, conviction rates were roughly the same, and before that, "judges actually convicted much more often than juries."

Leipold's paper, Why are Federal Judges so Acquittal Prone? was published in the Washington University Law Quarterly, and here's a link (http://law.wustl. edu/WULR/83-1/index.html) if you want to read the full paper. I encountered it through the weblog Volokh Conspiracy at volokh.com, whose proprietor-in-chief Eugene Volokh invited Leipold to guest-blog for a week. Leipold's posts are archived during the week of June 25 this year. I mention this not only because it is a customary courtesy to acknowledge the blog where you found something of interest, but because the extensive comments by VC readers offer insight on the more intriguing questions - Why? And what changed that affected judges, but not juries?

"The core problem," Leipold says, "is to find something about criminal trials that has changed since the late 1980s, something that would affect judges but not juries.

"I think the Sentencing Guidelines best fits this description. The Guidelines took away a huge amount of sentencing discretion, which meant that judges were more often faced with cases where they knew that a conviction would result in a harsh - maybe too harsh - sentence. We don't have to say that judges were acting 'lawlessly' to reach the unremarkable conclusion that judges may hold the government even more tightly to its burden of proof when the stakes are high and unforgiving."

Since there is no way to determine what factors judges weigh when they rule, there's no direct evidence. But as Leipold observes, the timing is nearly perfect, "with the Guidelines really hitting stride just as the judicial conviction rate started to slide." Many judges "were harshly critical of the how the Guidelines made it harder for them to do justice in individual cases." And there is support for the idea that "the greater the punishment the slower people are to impose it."

It wouldn't be surprising to learn, Leipold adds, "that judges might require more and better proof of guilt when they cannot control the sentence. This would help explain why judges, but not juries, have changed their behavior since the late 1980s."

Leipold considers other possibilities, but juries are more conviction-minded whether the charges are felonies or misdemeanors, whatever the category of crime, whether defense counsel are "private, panel, public defender, or pro se," and in all regions of the country.

Of 94 judicial districts in the country, juries convict more often than judges in 89, and in the other five the difference are not large. The Colorado district, where the rate is the same, is one of them.

Perhaps the reason is that defense attorneys send cases to a jury if the prosecution's case is strong, hoping for a miracle, while counting on the fact that a judge will see through a weak prosecution case. But the defense attorneys Leipold talked to said that wasn't their strategy.

Or perhaps it's the case that the prosecution is preventing the defense from choosing a bench trial. "Actually that was my first thought when I saw the statistics," Leipold says. "But after interviewing lots of lawyers and reading lots of 'how-to' trial manuals, I became convinced that prosecutors are not influencing the defense choice of factfinder in any meaningful way. None of the defense lawyers I talked to said that prosecutors frustrated their choices - they put their clients in front of the jury because they want to. All of the prosecutors said they were rarely asked to agree to a bench trial, and when asked, they almost always agreed (unless the judge is 'crazy')."

Federal criminal trials are rather rare, but should you ever be facing one, I hope you will find Leipold's results useful.

Linda Seebach is an editorial writer for the News. She can be reached by telephone at (303) 892-2519 or by e-mail at seebach@RockyMountainNews.com.