Recently a Network member asked about our affiliated attorneys’ thoughts on under what circumstances they might choose to try a self-defense case before a jury or under what circumstances they might prefer to seek a bench trial. Here is what we asked–

What circumstances if any might lead you to ask for a bench trial to have a judge make a finding about criminal charges stemming from use of force in self defense, as opposed to trying the case before a jury? What rationale drives your preference for a jury trial or for a bench trial?

So many of our affiliated attorneys responded that we will run these commentaries over the next two issues. 

James B. Fleming
PO Box 1569, Monticello, MN 55362

There are numerous considerations that might enter into this analysis and decision-making. Here are just a few. Does the client have prior criminal behavior that would taint a jury’s perception of guilt or innocence? Are there incident-specific facts that do not bear upon the ultimate issues, but which, again, might taint a jury’s attitudes toward the defendant? Have you picked a jury at the start of trial, only to find that you are really not happy with what your gut is telling you about their anti-gun sentiments, or anti-2A sentiments? What is the racial makeup of the prospective jury pool, the race of your client, and that of the victim? Are there complicated scientific facts that you know from experience are going to boggle jurors? Is your case an “application of the law” case, or is it a “facts” case? Are there witnesses that you are going to have to really attack on the stand? Jurors don’t like that, no matter how justified it is. Are there witnesses you are going to have to call that a jury is really not going to like, on an emotional level? Very, very few self-defense cases are the “clean as the driven snow” type of factual scenario that people sit and dream about. Reality is just not like that.

Experienced trial attorneys know from bitter experience that blind faith in juries can be horribly misplaced. Any time you go to trial you are flipping a coin, heads you win, tails you lose. Your chances will be 50-50 no matter how solid or “good” you think your case might be.

Charles Dobra
Charles Wm. Dobra, Ltd.
675 East Irving Park Rd., Roselle, IL 60172

The reasons to waive a jury are multifaceted. One reason might be if you shoot skeet with the judge on Friday nights.

John Andrews
Law Office of John Andrews, PC
10 Federal Street, Suite 420, Salem, MA 01970

After 30 years of practicing criminal defense law I cannot think of an instance where I would advise a client to waive their right to a jury trial and proceed with a bench trial in a self-defense case. Judges, whether appointed or elected, are human and many are concerned with public perception and the reaction of a decedent’s family.

Perhaps more importantly, I would much prefer to have an audience of 12 ordinary citizens decide the fate of a client. The average citizen is likely to be in a better position than a judge to understand and empathize with a person who had to make the difficult choice to shoot another human being.

Absent some extraordinary circumstance (any such circumstance would likely have resulted in no prosecution), I would in the strongest terms possible dissuade anyone from even thinking about waiving the precious right to a jury.

Gene Anthes, Jr.
Gunter, Bennett & Anthes, P.C.
600 West 9th Street, Austin, TX 78701

This answer to this question will vary from jurisdiction to jurisdiction and from case to case. In my neck of the woods (Texas), I would only try a self-defense case to a judge if it’s in the bag. In other words, the prosecutor and I have conferred and the prosecutor will say, “Gene, I really don’t want to try this case but victim’s family is really putting a lot of pressure on our office.” Only then would I consider talking with the state and judge in chambers and then potentially waiving jury trial and going to the judge.

In most self-defense cases this is not the case as this conversation would have taken place at the grand jury stage. That is, a prosecutor would have recommended to the grand jury to decline the case (or “no bill”). If a client has been indicted, the state is often married to their belief that my client is guilty. 99% of the time I’d much rather try a case to a jury and make the state convince 12 people (instead of one) that my client is guilty beyond a reasonable doubt.

Schoen Parnell
Parnell Defense, PLLC
3405 188th St SW, Suite 301, Lynnwood WA 98037
(206) 619-2521

There are precious few decisions that defendants actually get to make for themselves during the pendency of a criminal case. Whether to take the stand and testify. Whether to take a plea bargain. Whether to go to trial and, if so, whether to waive their right to a trial by jury. While our clients do rely on us to give them our opinions and learned counsel, those decisions are ultimately theirs to make.

And since there really is no guarantee which individual judge any one of my clients is going to get on any given date, who will be my client’s judge is rarely a consideration for bench vs. jury trial. That said, in the current political climate and the demographic area in which I practice (western Washington state), I can’t imagine recommending that a defendant waive their constitutional right to a jury trial and hand the facts of a firearm-related death over to a judge who may be thinking about their re-election campaign. By this time, obviously, the prosecutor has filed charges and believes that a crime has been committed and that the defendant was involved – so the facts of the case are in contest. With a bench trial, there’s only one person who decides the facts; and there are no hung juries in a bench trial. But with a 12-person jury panel, I only need one out of twelve to have a reasonable doubt (to get a hung jury). While a unanimous “Not Guilty” verdict is always desired, trials can often take a turn for the worse and a hung jury may become a defendant’s last hope (unless they opted for a bench trial). Here in Washington state, whether a judge or jury finds you guilty, it is the judge that crafts the sentence in accord with sentencing guidelines.

Unfortunately, there are some states where the defendant’s decision to take a judge trial or jury trial determines who decides the sentence if you are found guilty. In Virginia, for example, if a jury finds you guilty, then the jury must sentence you–and the only guidance the jury is given is a sentencing range (like 5 to life). But if you took a bench trial and the judge finds you guilty, then the judge must use the sentencing guidelines which take into consideration a number of factors in determining your sentence. So, in the case of a bench trial (in states like Virginia), you at least know going into a bench trial what type of sentence you will likely receive in the event that the judge finds you guilty. When I practiced in Virginia (over 16 years ago), I found that the vast majority of criminal defendants opted for a bench trial because of that very reason. Here in Washington, the opposite is true. However, the cases that almost invariably go to a jury trial in either scenario would be the class A felonies (like where the defendant is charged with taking the life of another).

John Monroe
John Monroe Law, PC
9640 Coleman Road, Roswell, GA 30075
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It would be exceedingly rare for me ever to recommend a bench trial in a criminal case, for the following reasons:

  1. With a jury trial, the state has to convince 12 people my client is guilty. With a bench trial, it only has to convince one.
  2. With a jury trial, if there are evidentiary disputes, the judge reviews the evidence and decides if the jury will see/hear it or not. With a bench trial, the judge still has to make the decision, but if he ultimately excludes it, he's already seen/heard it. Even though his ruling is that he will not consider it, it is hard for any person to unsee or unhear something. The excluded evidence could linger in the back of his mind. But if he says he will not consider it, an appellate court would assume he did not consider it.
  3. With a jury trial, the judge is required to explain the law to the jury. He has to write it down and then read it out loud. The lawyers can critique his explanation of the law. With a bench trial, the judge never announces what law he is applying. He may not correctly understand the law, or he may apply it incorrectly, but the defense would never know that because the judge does not articulate his reasoning.
  4. For several of the reasons stated in 1-3 above, bench trials are much more difficult to appeal.

The whole time you’re conducting a trial (especially a criminal defense), you are mentally cataloging anything that happens that is appealable (unfavorable rulings, jury instructions, etc.). In a bench trial, that catalog is more like a grocery store flyer than the old-fashioned Sears Christmas catalog.

I would have to think all the above reasons are overcome by some strong reason to waive a jury trial before considering a bench trial. For a case involving justifiable use of force, it does not strike me that such a strong reason would ever exist. It is not impossible, of course, but I would have to encounter it before even considering recommending waiving a jury trial.

George J. Embriano
Law Offices of George Embriano
This email address is being protected from spambots. You need JavaScript enabled to view it.

This is a very case/fact specific determination. Is there public outrage? What are the facts? What are the legal issues? Is the victim sympathetic? Is the client sympathetic?

Juries can be influenced by factors other than the law, if the client is sympathetic, if there is public opinion for/against the client, if they can identify with the client or the accuser. So, a jury trial would be preferable when those factors favor the client. Also, how complex are the legal issues surrounding the case? Can a jury get through the difficult legal issues to make the decision favoring your client? Can a jury wade through a number of side issues, complex evidence and emotional considerations and see the key legal issue?

Bench trials tend to (at least in theory) just look at the legal facts and issues–the letter of the law and ignores or down plays the collateral matters. Think of it this way, if you’re “technically right” you may want a bench trial. And if you’re “technically right but it looks bad” there’s a good chance you'll want a bench trial.

The background of an individual judge will also play a factor, if you have “Hang ‘em Harry” the former prosecutor as the judge you might want to avoid a bench trial in a mutual affray situation but in the case of self defense against a criminal it might help the client. While if you have a former public defender as a judge it might work to your advantage with a different set of facts.

Lastly the jurisdiction may play a role, some are known for being more law and order friendly, others more defense friendly.

This is the kind of question that keep attorneys up at night second guessing themselves, calling colleagues for second, third and fourth opinions, and adding to their ulcers and bar bills.

Timothy M. Klob
The Larrison Law Firm, LLC.
145 Lee Byrd Road, Loganville, GA 30052

There are many factors to consider and it is a case by case determination. Important factors are facts of the case, the trial judge and your client as a witness.

A big “Thank You!” to our affiliated attorneys for their contributions to this column. Please return next month for the remainder of our affiliated attorneys’ responses.

To read more of this month's journal, please click here.