A defendant was asked if he wanted a bench trial or a jury trial.

“Jury trial,” the defendant replied.

“Do you understand the difference?” asked the judge.

“Sure,” replied the defendant, “That’s where twelve ignorant people decide my fate instead of one.”

(Courtesy of Nicole Black, from her new blawg, Legal Antics)

Judicial Reports has embarked on a study of how many felony cases are tried by a judge rather than a jury.  With data obtained from the Office of Court Administration (a dubious source?), they were only able to obtain stats for 2005, as follows:

                             All Felony Verdicts      By Judge
Queens                  247                              17%
Bronx                     242                              14%
Manhattan             480                                9%
Brooklyn                322                                 8%
Staten Island           19                                5%

Total                     1310                              11%

So what’s the point of this data?  To a lawyer, it’s fascination is that there were only 1,310 felony cases tried to verdict in the 5 boroughs of New York City in a year.  Given how many lawyers tell me that they’re on trial at any given moment, this number is shockingly low.  But enough about lawyers and their trial proficiency claims.  Let’s return to the point.

The choice of  trial by judge or jury is not a numbers game, and so a compilation of data provides no clue as to why choices are made or what it means for the future of jury trials.  There are two primary reasons why defendants waive juries:  The trial judge has given the defense lawyer the wink.  The case is ugly, but the defense is highly technical.  There is an additional reason: A lawyer has oversold his trial skills or experience, and when the case didn’t plea as expected and the lawyer was caught in his deception, he chickened out and went judge trial.  Since this last reason reflects incompetence and deception, there’s really not much more to say about it.

So what are we talking about with the Judge giving the wink?  Is this some sort of corrupt practice?  Not at all.  This is the judicial equivalent of jury nullification, a time honored tradition.  This is where a judge can’t legally toss a case that he believes to be total garbage, or where the prosecutor won’t offer a plea that the judge believes is appropriate to the offense, and so he uses his lawful authority to do justice.  Not only is this not improper, but it is possibly the highest calling for a judge.

And why does the judge give lawyers the wink?  Because defense lawyers would otherwise need only 1 of 12 people to be convinced, rather than 1 of 1 judge.  The odds are simply better, which is why we have a jury system to begin with.  Mind you, the odds aren’t good, just better.

So if we look behind the numbers, the percentage of judge-tried felony verdicts seems quite appropriate.  There aren’t supposed to be that many cases that get the wink.  There aren’t that many really ugly cases with technical defenses.  And hopefully, there aren’t that many lawyers who mislead their clients as to their ability to try a case and end up getting caught.  As to the last rationale, these are the cases where the lawyer, full of bravado at the outset, desperately convinces his client to take a plea on the eve of trial despite his innocence or a good defense.  And that may be one of the reasons there are so few trials to begin with.