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 ran the first half of their commentaries in the February edition of this journal and conclude the discussion here with the second half.

Gary True
Summers Compton Wells LLC
515 St. Louis Street, Suite 203, Edwardsville, IL 62025

A bench trial is preferred if the facts favor the defendant and the jury pool may be prejudiced against the defendant, or guns generally (if the defendant used a firearm), and the prosecutor may therefore be able to obtain a conviction based in part on emotions. This is especially true if the judge is viewed as being fair and impartial, or conservative. A good example is the bench trial of former St. Louis police officer Jason Stockley. I was not involved in that case, but the judge's lengthy opinion indicated there was insufficient evidence to find guilt beyond a reasonable doubt, which is apparently the reason the previous City Attorney (chief prosecutor) choose not to bring Stockley to trial after the incident occurred in 2011. A St. Louis jury might have believed the evidence was sufficient, as indicated by the protests and vandalism that occurred after the not guilty verdict was issued in 2017.

Conversely, if the defendant's case is weak when applying the evidence to the law, a jury trial will be favored, especially if the jury may for some reason be sympathetic to the defendant or the defendant's situation, or if the judge is known to have an anti-gun bias (if the defendant used a firearm) or for some other reason tend to view the defendant unfavorably or favor the victim.

The defendant has a constitutional right to a jury trial, but not to elect a bench trial. Some jurisdictions require the prosecutor or the judge, or both, to agree to a bench trial, which, if the prosecutor agrees, allows the prosecution to evaluate the same factors and effectively require a jury trial if the prosecutor believes it will be more likely to obtain a conviction from a jury. Missouri requires approval by the judge for a bench trial. In Illinois, the defendant may obtain a bench trial by waiving his or her right to a jury trial before a jury is impaneled.

Marc S. Russo
25 Plaza Street West #1-K, Brooklyn, NY 11238
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As a NYC resident living behind the Tofu Curtain, the attitudes and cultural biases of the jurisdiction come to mind. Around here many in the jury pool think that all gun owners belong in straight jackets and that most young criminals are poor, misunderstood children. Unfortunately, we often find that many of our judges are cut from the same cloth with the addition of self-righteous, arrogant attitudes. However, if you're a white person (particularly a man) who kills a young minority person you may be better off with a judge.

Shawn A. Kollie
Kollie Law Group, PC
40 NW Greenwood Ave. Ste. 100, Bend, OR 97701

In Oregon it is always the client’s decision to decide whether a judge or jury decides the facts of a case. I prefer a jury and I typically advise a client to let our system of justice work through a jury. Juries generally do a great job sifting through the information and determining how to apply the facts to the law. Juries generally take their responsibilities very seriously and want to do the right thing. Sometimes a jury will be impaneled and answer questions that are clearly improper for your client. If the jury appears to be biased on a self-defense or use-of-force case sometimes it can be advantageous to waive jury and let the judge decide. This is an option of last resort, and not one that should be used lightly. This would only (in my opinion) be used in rare circumstances where the jury’s statements are very detrimental to your client.

Thomas C. Watts III
Thomas C. Watts Law Corporation
8175 Kaiser Blvd, Ste 100, Anaheim Hills, CA 92808

This is perhaps the largest mouthful of a legal question that you’ve asked. The answer is not an easy one. The original standard of the ancient jury was a group of citizens, knowledgeable in the affairs of the community who decided on questions based on what they knew or were able to find. Times have changed markedly. Now, a juror with personal knowledge or a known disposition toward a subject is considered tainted or biased. Add to the mix that the district attorney is thought to represent the people. They generally enjoy a leg-up in the eyes of the trier of fact. Judges have backgrounds. Here in California, a very large share of the judges have mostly criminal law experience. Nonetheless, self-defense cases are out-of-the-ordinary. We are typically not dealing with a meth-addict who kills a homeowner during a burglary. We tend to blindly opt in favor of juries; they are most like us. That is not always the best approach. As lawyers, we take a long look at our client, the judge and the jury pools. Most importantly, we consider the facts of the case.

Let’s look at two scenarios:

A homicide occurs after a person wearing shorts and no shirt, sweating profusely is observed breaking into an armed citizen’s home. It is the dead of a snowy winter. The suspect will not heed warnings; the suspect will not retreat. The suspect draws a knife as he successfully kicks in the front door. The rest of the family is watching television. The armed citizen doesn’t have the time to think. The police reactively take him into custody after he calls to report the death of the intruder. An indictment soon follows. With no previous criminal background and having been fully trained in the legal use of weapons there is simply no question that this is a case for a jury especially since the judge somewhat has a reputation for making snap decisions. Jury requested, Yes? Not so fast. What if this took place in the suburbs of Big City Massachusetts or Maryland? The jury includes a significant number of persons who are off-put by guns and the people that own them. Why didn’t the citizen just call the police when the suspect came on the property?

An off-duty police officer is seated at a Starbuck’s when an angry boyfriend starts a loud argument with his significant other. She intervenes to keep the public peace. The boyfriend is not accustomed to firm counseling and escalates the situation. As the boyfriend makes a strong move for his waistband the officer reacts with deadly force. The judges in the county have presided over a growing number of police shootings recently. They are under political pressure to address these matters firmly. The makeup of jurors favors public order. There are many more highly-technical issues to be resolved in a case such as this. The jury might get confused. If the officer were to retreat in her level of force, would the boyfriend still be alive?

In answer to the question, there is no answer without having all of the circumstances to consider. In practice, we preserve the right to jury. We generally believe that given a choice between the two, a jury ought to be more empathetic; a judge more objective. It is never an easy choice. Anybody that makes this legal decision on their own is more likely foolish than informed.

John Chapman
Kelly & Chapman
PO Box 168, Portland, ME 04101
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In Maine, judges are a good bet for “diminished capacity” defenses, that juries seem to be able to see right through. If the defendant is in stark contrast to truly reprehensible “victims” in a self-defense case, we have had some surprising jury verdicts in favor of the defendant. State v. Sabato Raia involved a case where three almost unimaginably evil “victims” were shot, almost execution style, outside the home of the defendant, whom they had (in front of witnesses) threatened to kill earlier that night. One was apparently shot through the side of the head as he drove his car away from the scene, with the side window rolled down.

Raia was acquitted. Some of the facts can be reviewed in the reported case of Royal Ins. Co. v. Pinette, 2000 ME 155. That case is also instructive, because it involved the “expected or intended” exception to the duty to defend and indemnify in self-defense shootings.

Nabil Samaan
Law Office of Nabil Samaan
6110 Auburn Folsom Road, Granite Bay, CA 95746
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I think these preferences may depend on a county bias, or judge bias. Also, certain facts may create a preference to have a judge–facts like a rape in the commission of a murder or bloody photos.

Gregory J. Miller, Esq.
Miller Law Group
PO Box 680, W. Redding, CT 06896

There is often a bias against people who are not from an area. If I had someone who might be seen as an outsider, I would consider a bench trial. Also, if the facts are very complex–i.e. carrying interstate under a reciprocity agreement in a state or city where licenses are not common I would consider a judge.

Jennifer R. Loflin
Associate Attorney - Castillo Harper, APC.
6848 Magnolia Ave., Suite 100, Riverside, CA 92506
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The ultimate decision to select a jury trial versus a bench trial where a judge acts as the fact-finder is one that only the defendant can make, and it should be made carefully, following the advice of your counsel. There are benefits and drawbacks to both a bench and a jury trial, such as, with a jury trial, deliberations can go on for days at a time, with no guarantee of when they will announce, or even come to, a verdict on the case. Whereas, with a bench trial at times the judge will announce his or her verdict that same day or will set a court date for announcement of the verdict, which eliminates the uncertainty in when a defendant would receive his or her verdict.

The decision to choose a bench trial over a jury trial should be made on a case by case basis, even in self-defense cases, not every self-defense case is the same. In my experience, juries often feel protective or sympathetic with certain victims such as in sex cases or cases where the victim is very young, where a judge is better able to set emotions aside and focus on evaluating the evidence. The likeability of the defendant is also a consideration, if a defendant is not very personable and/or able to communicate effectively, this may turn off various jury members, where a judge is more equipped to look past a defendant’s demeanor and focus on the testimony.

If your case involves complex areas of law that may be difficult for a jury to understand and follow, then a bench trial perhaps would be more favorable.

Overall, I have historically preferred to try my cases in front of a jury as a defense attorney. Only one juror is needed to vote “not guilty” to cause a mistrial or a “hung jury” versus in a bench trial where the entire fate of my client is in the hands of a single individual.

Mike and Alex Ooley
Boehl Stopher & Graves
400 Pearl Street, Suite 204, New Albany, IN 47150
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The question regarding whether to waive the right to a jury trial in favor of a bench trial will depend on the facts and circumstances of the particular case–to include the identity of the presiding judge. First, in most self-defense cases, the jury will be the “fact finder” and determine whether you have a valid self-defense claim. The right to a jury trial in a felony case is absolute.

Interestingly, even though you have a right to a jury trial, you do not have a right to a bench trial in a felony case as any waiver of a jury trial will only be effective with the consent of the prosecutor and court. Indiana law is clear that any waiver of a jury trial by you must be fully informed and voluntary. You also have a right to a jury trial in misdemeanor cases, if requested in a timely manner.

In a bench trial, although most of the process will be identical, there are some important distinctions about the conduct of your trial. Here are some potentially important distinctions to consider when contemplating waiver of a jury trial. In a bench trial, there will be no voir dire (questioning of prospective jurors) that might allow you to get a more sensical jury amenable to the notions of self defense–as opposed to the potential negative inclination some judges might have to even justified self defense. You will certainly not be allowed to voir dire the judge in a bench trial, but the judge’s track history will be your guidepost. You also will not be able to sequester the trial judge if there is significant publicity. Although the majority of judges might be able to filter out media reports as influential sources of information, some may not.

Another factor in a bench trial will be that you will not necessarily be allowed to appear at trial without physical restraints. We hope this would not make a difference, but it may have some bearing on the judge. One other factor to consider is that the prosecutor may not make an opening statement for a bench trial - that may or may not be an advantage for the prosecution. Perhaps the most interesting possibility you relinquish with a bench trial is the possibility of jury nullification.

Indiana has the distinction of being only one of a very few states that have state constitutional provisions that provide for jury nullification. One case in Indiana explained nullification this way: “the right of the jury to return a verdict of not guilty despite the law and the evidence where a strict application of the law would result in injustice and violate the moral conscience of the community.”

Ultimately, you, with input from your legal team, will have to make a determination whether you want a jury of your peers to resolve factual disputes regarding your self-defense case or if you want a particular judge to consider the evidence and make factual determinations in light of the judge’s “common experiences and knowledge acquired during a lifetime.” Obviously, this will be very dependent on the particular judge and the demographics that will supply the jury pool.

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