The right to trial by judge

Freddie Gray trials are no reason to change the rules for all criminal defendants.

While Sen. Bobby Zirkin may have been a bit impolitic in calling Baltimore State's Attorney Marilyn Mosby's idea of restricting defendants' ability to choose to be tried by a judge rather than a jury "moronic," he is right about the policy question. Trial by jury is guaranteed to criminal defendants by the Constitution, and as with all rights, their full enjoyment depends on an individual's free choice about whether to exercise them. The fact that federal and some state courts give the prosecution a role in deciding whether a defendant can opt for what's known as a bench trial doesn't mean that adopting such a standard in Maryland is right.

The issue came up in the context of reforms Ms. Mosby said she would pursue in the wake of her decision to drop all charges against the remaining three police officers involved in the arrest of Freddie Gray. After three acquittals in bench trials presided over by Circuit Judge Barry Williams, Ms. Mosby conceded the obvious: All of the remaining officers were certain to choose bench trials, and with the same judge, same legal issues and same evidence, there was no chance of a different outcome. In an interview with The Sun's Justin Fenton, she said, "There's a constitutional right to a jury. You know, federally, they actually have the option — the prosecutor has to agree whether or not they're going to proceed on a bench trial. We don't have that option here, right, so our hands are tied."

Yes, the Sixth Amendment gives Americans the right to a trial by jury. The Second Amendment gives them the right to bear arms, but no one would suggest the government should force everyone to own guns.

Ms. Mosby's present affection for juries aside, the conventional wisdom is that criminal defendants should almost always choose a jury trial rather than leaving their hands in the fate of a judge. Some research has called into question whether it's really borne out by the evidence, but the idea is that it's harder for a prosecutor to convince 12 out of 12 people on a jury that the defendant is guilty beyond a reasonable doubt than it is to convince a judge in a bench trial. Judges are thought to be less swayed by arguments to emotion or sympathy, and under most circumstances, defense attorneys will advise their clients to opt for a jury of their peers instead.

There are some exceptions to that rule, and the Freddie Gray cases fell into all of them. Defendants may be motivated to choose bench trials in cases with tremendous negative publicity or where complicated legal issues are at stake. Police facing charges in places with a history of bad relations between offices and the community also frequently choose bench trials. Even so, the first officer to be tried, William Porter, opted for a jury, which deadlocked, and attorneys for the second, Edward Nero, said they grappled extensively with the question.

Indeed, it's fair to ask whether, if presented with the option to intervene in Mr. Nero's case, Ms. Mosby would have argued against a bench trial in front of an African-American judge who used to prosecute police misconduct for the Justice Department. At that point, she might well have liked her odds.

But it is the defendant who should have the right to make those sorts of calculations because he is the one with the most at stake. Our criminal justice system is not designed to produce a level playing field between the prosecution and the defense but rather recognizes the danger that the state could use its superior power and resources to rob the innocent of their freedom. As Benjamin Franklin said (in an amplification of an earlier maxim of English jurist William Blackstone), "It is better 100 guilty persons should escape than that one innocent person should suffer." That's why the Bill of Rights contains a whole series of protections for criminal defendants — not just the right to a jury trial but also the ability to compel and confront witnesses and avoid self-incrimination, double jeopardy and unreasonable searches and seizures. Consequently, prosecutors are required to provide the defense with extensive information about the evidence they intend to present, but the opposite is not true.

The bottom line is this: Whether a case is heard by a judge or jury, the question remains the same, and that is whether the prosecution presents evidence sufficient to prove guilt beyond a reasonable doubt. Judge Williams found the state's evidence lacking in the three trials he decided, and he explained why in great detail. Ms. Mosby is free to disagree with his conclusions — or, more broadly, to question whether the mechanisms for investigating alleged police misconduct are insufficient — but that's no reason to change the rules for every other criminal defendant.

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