9. TRIAL BY JUDGE OR TRIAL BY JURY?
It is now time for trial. Judge or jury and how do you prepare for final presentation?
FIRST RULE AND RULE NUMBER TEN:
NEVER TRY A CASE TO A JUDGE. IF THERE IS A REASON FOR PLEADING NOT GUILTY (AND THERE PROBABLY IS MORE OFTEN THEN YOU THINK), GIVE IT TO A JURY.
An excellent lawyer and friend: Sa'ad El Amin, once stated that a bench trial is a slow guilty plea. It is a guilty plea when you have nothing to do before two o'clock in the afternoon. Remember that the purpose of a guilty plea is to control or limit the sentencing range through the plea bargaining process. The end result is guilt and punishment. If there is a desire, based upon a logical opportunity, for a result of a verdict of "not guilty", the trial by jury is the best tool.
Additionally, aggressive lawyers: those who do not cajole and beg for plea agreements, those who take what they want for their clients, take trial by jury. In making the decision, remember that there are three types of defense in a criminal case: positive defense, negative defense and mitigation or damage control. Either the trial lawyer wants to offer some evidence that defeats a finding of guilt. Maybe it will be positive evidence of self-defense, or bona fide claim of right or mistake. This evidence will result in a not guilty verdict. With a negative defense the direction of the defense is to identify the one issue of which the government has the least evidence or the weakest evidence and challenging that one element. If that element is defeated the verdict should be "not guilty", or guilty to a significantly lower range of offense.
With damage control the purpose of the trial is to minimize the punishment. The trial lawyer and the defendant know that he is going to be convicted and that during the trial the defense will try to limit the punishment the jury will impose. Many lawyers, particularly those who cajole and beg will state that with a jury trial you are taking a risk and that the sentence could be unreasonable. The same is true of a guilty plea "straight up" that is, without an express agreement for sentence or a bench trial without any agreement. There is a tremendous risk. Some judges do lessen sentences as a reward for not complicating the docket with jury trials. Additionally, it is statistically true that juries routinely impose greater sentences than judges.
The issue becomes one of trust: trust in your skills and trust in the honesty of a properly prepared jury. Note the use of the term "properly prepared."
Who should be trusted most, a judge or a jury of twelve good citizens?
Ask yourself if you have ever seen a judge cheat?
Have you ever seen a judge create facts to justify a verdict?
Have you ever seen a judge give a defendant the presumption of credibility against a police officer?
Have you ever seen a judge side with a defendant when there was no glaring reason for the defendant to be believed?
Have you ever seen a judge, routinely, doubt the word of a government witness, as is required under the doctrine of presumption of innocence?
If not, you have seen judges cheat? If you have seen a courtroom where an ordinary citizen does not have the same chance of being believed as a police officer, you have seen a judge cheat. By way of explanation, but without excusing the practice of cheating, some judges cheat based upon ignorance. Some judges assume credibility of police officer testimony because this is what they have experienced in their careers. These judges deny the defendants their constitutional rights out of ignorance. Some judges will take solace from the fact that the shortcomings are based in ignorance rather than malice or corruption. Whether or not a judge cheats is determined by the effect upon the process and not his or her intentions. Whether ignorance or malice, the criminal defendant is being denied that to which the judge has sworn an oath to provide. If you play poker and your opponent tells you that his pair beats your flush and that is the way he has always played, whether ignorance or malice, you are being cheated. A properly prepared jury will never cheat.