Judges Acquit More Often Than Juries

James A. Cohen in The Wall Street Journal, August 08, 2011

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It was a harrowing wait for Mitchel Alvo, who—unlike two co-defendants cleared by juries in the deaths of two firefighters at the former Deutsche Bank tower—had decided to put his fate in the hands of a single judge.

But after a tense week, Justice Rena Uviller found Mr. Alvo not guilty in the high-profile case, affirming his legal strategy and highlighting a little-known fact in New York courts: Judges are more likely to acquit than juries, data show.

From 2006 through 2010, felony defendants in New York City who opted for bench trials—in which a judge decides the case—were convicted 61% of the time, while juries convicted 67% of felony defendants, according to data from the New York State Division of Criminal Justice Services.

Mr. Alvo's legal team worried as they awaited Justice Uviller's decision on charges of manslaughter and criminally negligent homicide. Juries had moved quickly to acquit his co-defendants.

"There's always worry and concern," said Mr. Alvo's attorney, Susan Hoffinger. "We were hopeful the judge would make the right decision and ultimately she did."

Although statistics show bench trials to be favorable for defendants, less than one in five choose to waive their right to a jury, data shows.

Legal experts say a bench trial only makes sense when a jury could be swayed by emotion for the victim, overwhelmed by technical evidence or confused by complicated legal instructions.

"You only need one to hang a jury," Rachel Barkow, a professor of law at New York University, said of the calculations defense attorneys sometimes makes when weighing their clients' chances of acquittal.

The Deutsche Bank case was fraught with the tensions that lead to bench trials.

The trial in State Supreme Court in Manhattan lasted nearly four months. More than 70 witnesses took the stand. Some 1,100 exhibits were put on display. The testimony included dramatic accounts from firefighters who survived the 2007 inferno that claimed the lives of Robert Beddia, 53 years old, and Joseph Graffagnino, 33.

Mr. Alvo was a former supervisor for John Galt Corp. in charge of cleaning up the Deutsche Bank building, which was badly damaged when the World Trade Center collapsed on Sept. 11, 2001.

The prosecution theory revolved around one pipe in a maze of pipes in the toxic tower's basement. Mr. Alvo was accused of ordering cut a standpipe that provides water to a high-rise in an emergency. When the blaze struck, firefighters could not get water on it for more than an hour.

Prosecutors argued Mr. Alvo and his co-defendants knew it was a crucial pipe for firefighters, that it shouldn't have been cut and that they did nothing to repair it.

The jury was asked to consider the culpability of the defendants—all construction managers—in a case where professional misconduct was alleged to have resulted in the deaths of the firefighters.

Ms. Hoffinger said she had no doubts about waiving a jury for Mr. Alvo but declined to discuss the decision, saying it involved confidential information. Generally, she said, juries often struggle with complicated cases with sympathetic victims and intricate legal instructions.

"If you have a case where you know the law and the facts are on your side but you have complicated issues and you don't know if it's going to get through to the jury clearly, you might want to consider a judge," she said.

In a bench trial, a judge acts as the sole finder of the facts, removing the possibility of disagreements encountered by a 12-person jury.

Attorneys defending clients in a "heinous case" might opt for a bench trial because judges are legal experts and trained to ignore the emotion of a case, said Jim Cohen, a professor of criminal law at Fordham University.

"A jury can be too emotionally wrought up," he said.

Another group that traditionally asks for bench trials is New York City police officers accused of crimes or misconduct. They often fear they won't get a fair trial from a jury that might be disenchanted with law enforcement, experts said.

But central to any decision on a bench trial is the judge and his or her record.

"You have to know the judge and think the judge will be favorably disposed to whatever your argument is," Mr. Cohen said.

Ms. Barkow said an attorney looks at whether a judge is "pro-defense or pro-government."

"There is no way on earth that is not part of an attorney's calculus," she added. "You're going to look and see which judge you drew."

Justine Luongo, the supervising attorney at the Legal Aid Society, which represents indigent defendants, said the decision to waive a jury must "be made in consultation with the client after a very thorough analysis."

It "should be a case-by-case assessment taking into consideration many factors including, but not limited to, the facts of the case, the prevailing law, the sentence range and of course, first and foremost, what is best for your client," she said.

Mr. Alvo's situation was even more unusual because his co-defendants were facing jury trials at the same time.

Judges will not return a verdict before a jury does, fearing the decision could be leaked, Mr. Cohen said. In practice, that delay allows judges to take the jury's verdict into consideration when making their decisions.

"There is much less pressure on a judge at that point," said noted defense attorney Stuart London, who said it was a "savvy" decision to waive a jury for Mr. Alvo.

Once the jury voted to acquit Mr. Alvo's co-defendants, Ms. Hoffinger said it gave her "additional confidence that the judge would acquit Mitch."