(These news items covered our criminal defense partner Jon Katz's legal analyses of  the Washington sniper trial, the Sami al-Arian trial, the Kobe Bryant trial, drug defense, child pornography defense, and obscenity defense; and Jon Katz's defense of the Plowshares case.)

By Jon Katz

I have complained here about the Supreme Court's permitting laws denying defendants jury trials for "petty offenses," even for defendants facing the prospect of multiple consecutive sentences for multiple criminal charges each of which carries no more than a maximum of six months of incarceration. Neither do I like that some jurisdictions do not give defendants the unilateral option to waive a jury trial. 

When a criminal defendant has the opportunity to waive a jury trial, this study may be useful in making the final decision: Andrew D. Leipold, Why Are Federal Judges So Acquittal Prone? 83 Wash. U. Law Quart.151 (2005). This is a 76-page article, full of statistics; I expect to have more comments on the article after reading it more fully. On top of that, many comments on the article are found in the Volokh Conspiracy here, here, and here. An initial review of Professor Leipold's background suggests that he is committed to getting to the truth of this whole matter. In any event, each case presents its own variables about whether or not to seek a trial with or without a jury. 

Meanwhile, none of this matters before a defendant can waive a jury trial in the first place. In Maryland, fortunately, criminal defendants have carte blanche to waive a jury trial. Md. Rule 4-246. In the remaining jurisdictions where I practice (the federal courts, Virginia, and the District of Columbia), the prosecutor's agreement to the waiver generally is required. Fed. R. Crim. Proc. R 23(a), VA. Sup. Ct. R. 3A(b), and D.C. Sup. Ct. R. Crim. Proc. 23(a).

The United States Supreme Court has left open the possibility that extraordinary circumstances might permit a unilateral jury trial waiver by a criminal defendant. Singer v. U.S., 380 U.S. 24, 37-38. Indeed, this month a Denver federal judge allowed co-defendants in a bank fraud case to waive a jury trial -- without the prosecutor's consent -- after he dismissed the jury due to one of the defense lawyer's prostate cancer-related problems. The case is U.S. v. Mattar, Crim. No.1:03-cr-00232 (D. Co.). The judge is Richard P. Matsch, who presided over Terry Nichols's Oklahoma City bombing trial. Here is one of the defendants' responses to the prosecutor's failed motion for a stay of the proceedings for a possible interlocutory appeal of the Court's granting of the unilateral jury trial waiver. 

The more important issue here is that placing the jury trial waiver right in anybody's hands other than the criminal defendants' is antithetical to justice for so many reasons, including the Virginia scenario where the jury recommends a sentence that can be much worse than a judge might reach, the scenario where the judge is likely to be less biased towards the defendant (whether the bias is racial bias or other bias) than the jury would be, and the scenario where the judge can more easily overlook the heinousness of an alleged crime (for instance, from having heard more ugliness in the courtroom on a daily basis than would a jury). (July 25, 2006).

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