Criminal defendants expect more sympathy from a jury than a judge. But a recent study shows that juries tend to convict

Back in the early Seventies, some enterprising young legal services lawyers filed a creative lawsuit that challenged the procedures for evicting public housing tenants in Chicago. Following the U.S. Supreme Court's landmark opinion in Goldberg v. Kelly, they argued that public housing residents are entitled to fair hearings before the institution of eviction cases. The upshot of the suit was the creation of tenant boards, which had to approve every eviction (for grounds other than nonpayment of rent) before the city's 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 who were accused of lease violations such as 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 one. (Given the staggering caseload, it made sense to concentrate on cases we might actually win.)

I suppose that 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 that jury trials provide a relative advantage to defendants, and some very high-profile acquittals in controversial cases seem to underscore the point. (Think of O.J. Simpson, Richard Scrushy, the Amadou Diallo case, and the second Andrea Yates trial.) Lawyers and defendants alike appear to have 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, it may turn out that the conventional wisdom about jury trials is wrong, just as Chicago's legal assistance lawyers were wrong about tenant boards. In a recent study published in the Washington University Law Quarterly in 2005, University of Illinois law professor Andrew Leipold discovered that federal court defendants fare far worse before juries than in bench trials. Between 1989 and 2002, Leipold found, there was an 84 percent conviction rate in federal jury trials, but only a 55 percent conviction rate in bench trials. In fact, the "conviction 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-with juries convicting far more reliably than judges-in every part of the country and in every type of case.

Professor 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 importantly, he asks the right questions about his findings: Why is there such a great difference in outcomes, with judges responsible for so many more acquittals than juries? And perhaps even more intriguingly, why do defendants and their lawyers consistently choose the fact finder that 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 effective date of the mandatory federal sentencing guidelines in November 1987, which drastically limited judges' traditional discretion on sentencing. Many federal judges considered the guidelines draconian or worse, requiring them to impose overly severe sentences in case after case. Thus, Leipold conjectures that 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 judges' attention on the burden of proof. It is a well-recognized phenomenon 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.

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 have become 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 following 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 that they can confuse or 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.

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, draw, or get a do-over.

The second outcome-a hung jury, or a tie-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 following 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 do not know how often that happens, but the potential for a hung jury (and the attendant posttrial benefits) could certainly influence the defense lawyers' choices.

And even when a jury convicts, there is always the possibility that the judge will give the defendant a do-over. Federal district court judge Jack Weinstein recently did just that in the closely watched "Mafia cops" case in Brooklyn, New York. After the jury found two New York City police officers guilty of murder and conspiracy for their involvement in eight mob assassinations, Judge 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," Judge 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 convictions following jury trials. "If I'm going to do time," I have heard it said, "I want a jury to tell me that I am guilty." Even criminals, it turns out, may have faith in the system.

Criminal Law