Defendant Agrees to Bench Trial, But Government Insists on Jury Trial

Court says: Because of the epidemic and the resulting suspension of jury trials, bench trial it is.

|The Volokh Conspiracy |

From U.S. v. Cohn, decided Wednesday by Judge Gary R. Brown (E.D.N.Y.):

As a result [of the epidemic], at this writing, despite significant effort, research and investment by the Court, this district has not held a jury trial since March of this year, and in-person proceedings have been limited, although the Court has been gradually expanding its operations.

This backdrop provides the context for a dispute in the instant criminal prosecution, in which securities fraud-related charges have been pending against the defendant for more than a year. At the Court's suggestion, the parties considered whether a bench trial could provide an appropriate avenue for resolution of the charges given the complexities posed by a potential jury trial in the current circumstances. After careful consideration with counsel, the defendant agreed to waive his constitutional right to a trial by jury and consented to a bench trial. The Government, on the other hand, has declined to consent to a nonjury trial, insisting instead on a jury trial when that becomes a viable alternative for this case….

While the Federal Rules of Criminal Procedure require the Government's consent, in extraordinary situations, the Court is empowered to conduct a bench trial upon the defendant's waiver even over the Government's objection when required by the interests of justice. Upon careful consideration, the Court finds that the unusual, if not unique, circumstances presented by this particular case dictate that a bench trial be held notwithstanding the Government's objection. The facts and circumstances considered within the legal framework discussed herein include

  1. the length of time during which the charges have been pending, which in this case is more than a year;
  2. the uncertainty of providing a jury trial in this particular case within an ascertainable time frame;
  3. the complexity of this case—involving weeks of testimony and hundreds of thousands of pages of documents—which will serve to further complicate a jury trial under present circumstances;
  4. the defendant's age and health profile, which not only render a trial more difficult but may bear upon his right to testify in his own defense;
  5. the marked public interest in this case and the delays in its resolution, which implicates the public's right to a speedy trial; and
  6. evidentiary issues already identified by the Court raising the specter of possible juror confusion.

Upon consideration of the facts and circumstances, as discussed below, the Court will grant the defendant's application to hold a bench trial in the absence of the Government's consent….

The court's analysis is pretty detailed; if you're interested, read the entire opinion.

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  1. Defense lawyers like to call a bench trial a “slow guilty plea”.

    1. That’s very sad. Imagine having even less confidence in the judge than in some 12 randos who somehow have to wrap their heads around a complicated fraud trial.

      1. I should clarify: This comment was premised on there being an actual judge on the bench, as in the case discussed in the OP. If you’re a defendant stuck with a politician in robes, as in many US states, I can see how you might prefer the 12 randos.

      2. That seems to be premised on the assumption that the defendant is innocent.

        1. True. Then again, why would a guilty defendant not plead out?

          1. Perhaps because they think a jury, less capable of ascertaining the facts accurately, might erroneously acquit them?

            1. Perhaps because they think the government doesn’t have enough evidence for a legitimate conviction.

              Perhaps just because they think the government should have to meet it’s burden of proof beyond a reasonable doubt.

              1. Also fair points. Though I suppose Martinned’s question has a certain force in a system that doesn’t recognize a testimonial privilege against self-incrimination.

    2. Dilan: Is this consistent, at least as to federal courts, with the data? See this table from the Administrative Office of the U.S. Courts, which seems to report a 37% acquittal rate in bench trials and a 12% acquittal rate in jury trials.

      1. Maybe the old saw is wrong. Maybe a jury trial is an even slower guilty plea! 🙂

        1. By the way, here are some guest-posts on the subject from 2006, by Prof. Andy Leipold.

      2. Couldn’t it be said that a defendant will only request a bench trial if they were more confident on innocence?

        If the defendant is clearly guilty, but still wants to go to trial, I’d imagine a lawyer would take a jury trial as a hail mary in an attempt to convince impressionable jurors or at the very least secure a mistrial.

        So idk if it’s as clear as looking at that data, although that statistic does force me to revisit my priors.

      3. I wasn’t aware that the government had the power to deny a bench trial….

  2. Haven’t read the opinion yet, but it seems obvious that the government doesn’t have same jury right as defendant, and this is prosecution games.

    1. Whether it is games or not is not up to the courts discretion regardless of how often whiny self righteous judges sometimes imply otherwise.

    2. Why does the government have any jury right? Isn’t the jury clause of the 6th amendment there to protect the defendant?

      1. Martinned: I don’t think the government has a constitutional right to demand a jury trial; but the Federal Rules of Criminal Procedure generally do give it such a right.

        1. But wouldn’t a Constitutional right to a jury trial inherently include the right to waive said right? Much as one has the right to waive other rights?

          1. Dr. Ed 2: No, see Singer v. U.S. (1965):

            The ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right. For example, although a defendant can, under some circumstances, waive his constitutional right to a public trial, he has no absolute right to compel a private trial, see United States v. Kobli, 172 F. 2d 919, 924 (C. A. 3d Cir. 1949) (by implication); although he can waive his right to be tried in the State and district where the crime was committed, he cannot in all cases compel transfer of the case to another district, see Platt v. Minnesota Mining & Mfg. Co., 376 U. S. 240, 245; Kersten v. United States, 161 F. 2d 337, 339 (C. A. 10th Cir. 1947), cert. denied, 331 U. S. 851; and although he can waive his right to be confronted by the witnesses against him, it has never been seriously suggested that he can thereby compel the Government to try the case by stipulation….

            In light of the Constitution’s emphasis on jury trial, we find it difficult to understand how the petitioner can submit the bald proposition that to compel a defendant in a criminal case to undergo a jury trial against his will is contrary to his right to a fair trial or to due process. A defendant’s only constitutional right concerning the method of trial is to an impartial trial by jury. We find no constitutional impediment to conditioning a waiver of this right on the consent of the prosecuting attorney and the trial judge when, if either refuses to consent, the result is simply that the defendant is subject to an impartial trial by jury—the very thing that the Constitution guarantees him.

            1. Respectfully, the law is an ass…

              1. Yeah. I don’t think that argument works at all. Trials are public for the benefit of the general public as well as for the benefit of the defendant, so it makes sense that this is not something the defendant can waive. But I’m not sure who is supposed to benefit from there being a jury other than the defendant (as a matter of first principles).

                1. Except that the defendant can waive the trial altogether by pleading guilty.

                2. At the time of the founding, there was a general sense that a jury trial was the most accurate way of adducing a just result.

                  I agree that subsequent experience has called this premise into question.

                3. If the jury trial right is not waivable, the defendant shouldn’t be allowed to plead guilty either, and the government should be required to take every case to trial.

                  1. A defendant doesn’t have an absolute right to plead guilty, either.

                    1. Absent mental deficiency that would make it not intelligent, knowing, and voluntary I believe he does have the absolute right to plead guilty. What he doesn’t have is the right to a plea deal. Can you show where a defendant was barred from pleading guilty other than by an infirmity as stated.

                  2. The jury trial right is waivable. But being allowed to waive the right to a jury trial is not the same thing as having a right to a bench trial.

  3. Stupid question, probably, but … aren’t jury trials especially favorable to the defendant? Why would the government have any reason to refuse to consent to a bench trial?

    And if the defendant is afraid the jury will not quite understand the technical issues of a security fraud case and be prejudiced against the defendant … well that is an excellent reason to allow the defendant to waive his right to a jury trial, right? In that case, why should the court follow government consent?

    1. The second sounds like an excellent reason to insist on a jury trial. Waiving rights isn’t meant to be an exercise in game theory.

      1. Of course it is. Defendants waive all sorts of rights all the time, depending on whether they think it helps or hurts them.

        1. People do a lot of things. That is absolutely not how common law intended for it to be treated.

      2. Wait, you think the possibility of the jury being biased against the defendant is an excellent reason to insist on a jury trial?

        1. No mention was made of bias. I simply said if the defendant thinks a jury won’t accept his defense the prosecutor should absolute oppose a bench trial if he has that option.

    2. [A]ren’t jury trials especially favorable to the defendant?

      It depends on the judge and the nature of the case. Obviously, in this particular case, and with this particular judge, the prosecutors preferred a jury. They preferred one so much that they pressed that preference even though it’s obviously contrary to the judge’s own preference, and the defendant’s, and even though they knew that said judge will still get to rule on things like the defendant’s motion for instructed verdict at the conclusion of the prosecution’s evidence, in which an annoyed judge can pour them (the prosecutors) out anyway.

  4. Haven’t read the opinion, but it seems to me that the Govt.’s position clashes with the defendant’s right to a speedy trial.
    If the defendant insists on a jury trial, and the court cannot hold one because of COVID, then there is arguably good reason to delay the trial.
    But if the defendant agrees to a bench trial, and the court says, we can accommodate you even during COVID, then the Govt. insisting on a jury trial results in a long, unnecessary delay of the defendant’s trial. In my mind, that would end up depriving the defendant of his speedy trial rights.
    Just a thought.

    1. Seems reasonable to me.

      Beside, the right to a trial by a jury of your peers is just that, a “Right”. You don’t actually have a right unless you can choose not to exercise it.

  5. This ruling flies in the face of Fed. R. Crim. P. 23(a):

    (a) Jury Trial. If the defendant is entitled to a jury trial, the trial must be by jury unless:

    (1) the defendant waives a jury trial in writing;

    (2) the government consents; and

    (3) the court approves.

    The Rule nowhere permits the Court to treat the prosecution’s refusal to consent as a mere procedural objection that the judge can overrule in the exercise of his discretion. “Must” means “must.” The district judge’s attempt to justify his departure from this very clear language is spectacularly unpersuasive. I think this judge is badly wrong — and to the point, and beyond, of being petty about it.

    1. If only there was some kind of document, ideally one written by a judge, that explained why it isn’t that simple…

  6. If the US Attorney feels strongly, is this ruling appealable to the 2nd circuit?

    1. It’s not among the types of orders listed in 18 U.S.C. §  3731, so I believe they would need to pursue a writ of mandamus.

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