Judges - Bench Trials

Judges -- Bench Trials

S47 "A state judge acquitted an upstate businessman Tuesday of murdering his estranged wife.

"Supreme Court Justice Richard Mott announced his verdict in Schoharie County after spending what he said were about 12-1/2 hours deliberating."

Compare the above judge's deliberation time of 12-1/2 hours with Judge Paul Czajka's 'deliberation' time in the Nickel case of just two minutes . (The former was 375 times longer than the latter.)

H5 [1116] "Here, trial counsel's strategy of trying Hyatt's case to a judge was sound, or at the very least, not deficient, considering the circumstances present. At the state habeas proceeding, trial counsel testified that...[many] factors were considered in determining whether to waive [a jury trial], including the following:...the experience of the trial judge assigned to the case and the belief that he would look past collateral matters and decide the case based solely on the evidence...[and] [1117] Hyatt's statement to the jailer, during the booking process, that Hyatt could not have committed the charged offense because 'he likes little boys not little girls...'"

"There is nothing in the record to indicate that, in the absence of counsel's advice, another fact finder (i.e., a jury) would have been reasonably likely to arrive at a different outcome, especially given the overwhelming evidence against him."

Contrast the above with Nickel's case: under whelming evidence, and a thoroughly biased judge.

C16 [CPL-701] "Since waiver of a jury trial will result in a verdict by a single judge, the defendant must carefully consider the background and record of that judge. Research the judge's background and inform the defendant of any of that judge's relevant prior decisions and verdicts rendered in bench trials. The defendant should also consider the judge's pre-trial rulings and conduct in court. Prior to waiving the jury, the defendant must conclude that the judge presiding over the trial may be sympathetic to the defendant's cause or, at the very least, will be scrupulously fair...Since some judges are likely to be less sympathetic to the defendant than others, a knowing and intelligent waiver of the right to a trial by jury requires knowledge of which judge will actually try the case."

When Nickel asked his trial attorney to find out about Judge Paul Czajka , all he came back with was the following: "The 'book' on him is that he likes to move things along, and he's a harsh sentencer." That's it .

D12 [469] "Police officers waive their right to a jury trial and opt for a bench trial when they themselves are charged as defendants (for example, in brutality or corruption cases), in part because they assume that a judge, more than a jury of citizens, will sympathize with them as defendants and believe them as witnesses. This sympathy for police defendants and police witnesses can result in 'judge nullification' and an undeserved acquittal for the police officer/defendant."

Note the bench-trial acquittals of Baltimore police officers charged in the death of Freddie Gray.

[102] "Where the evidence is introduced in a bench trial and the trial court recognizes its limited probative force, the probability of prejudice is substantially reduced."

It's doubtful that Judge Paul Czajka weighed the 'probative vs. prejudicial' value of a given piece of evidence even once at trial. He was, instead, happy to convict Nickel based on a flood of pure propensity 'evidence.'

S59 [This is an Ohio child sex abuse conviction, which was reversed :]

[300] "With all due respect to the various trial judges who sit as the trier of fact in countless cases each year, the fact that a defendant forgoes a jury trial is hardly an excuse to give the state free rein to admit any and all evidence on the presumption that the trial court will separate the wheat from the chaff...By agreeing to have the trial courts sit as the trier of fact, the defendant does not waive his right to have only relevant evidence submitted to the trier of fact."

In the state appeal of Nickel's convictions, the Third Department appeared to take the precise opposite approach.

CPL [NY Criminal Procedure Law] "Practice Insights: How Non-Jury Trial Differs from Jury Trial," Alan D. Marcus, Acting Supreme Court Justice, Kings County [Brooklyn], New York.

[CPL-703] "Although it may seem that a non-jury trial is shorter than a jury trial due to the time for jury selection being eliminated, a bench trial will often span a longer period of time. Judges can...take a much longer time than a jury to render a verdict. Be aware of special procedures counsel should attempt to use to eliminate or minimize exposure of the judge in a non-jury trial to inadmissible, prejudicial evidence. [CPL-704] A trial judge presiding over a jury trial often has knowledge or information about the defendant that would not be admissible at trial. This information often includes evidence that may have been illegally obtained by the police, [and] evidence that is more prejudicial than probative...Although a judge is expected to render a verdict in a non-jury trial solely upon the admissible evidence, and not consider any extraneous matters, counsel may want to consider the feasibility of insulating a judge from exposure to this information before a bench trial commences."

'Although it may seem that a non-jury trial is shorter than a jury trial...a bench trial will often span a longer period of time.' Actually, Nickel's took just two days .

'Judges can...take a much longer time than a jury to reach a verdict.' Actually, just two minutes in Nickel's case.

'Be aware of special procedures counsel should attempt to use to eliminate or minimize exposure of the judge in a non-jury trial to inadmissible, prejudicial evidence...' Nickel's attorney took absolutely no measures along these lines.

W18 [1256] "Judges themselves often apply evidentiary rules more loosely in bench trials than in jury trials on the theory that 'the judge, a professional experienced in evaluating evidence, may more readily be relied upon to sift and weigh critical evidence which we fear to entrust to a jury.'" *

[1323] "Our studies show that judges do not disregard inadmissible information when making substantive decisions in either civil or criminal cases. We think the reason is that they are unwittingly influenced by inadmissible information and that they cannot ignore it much of the time."

[from FN95:] "(finding that less authoritarian people were less likely to use inadmissible evidence to convict the accused)." **

Commentary/application to Nickel case:

'Judges themselves often apply evidentiary rules more loosely in bench trials than in jury trials on the theory that the judge, a professional experienced in evaluating evidence, may more readily be relied upon to sift and weigh critical evidence which we fear to entrust to a jury.' If that is so, why did Judge Paul Czajka go to such lengths to disallow the photography expert testimony?

'Our studies show that judges do not disregard inadmissible information when making substantive decisions in either civil or criminal cases.' Thus, the boatload of propensity 'evidence' introduced by the prosecution side must have influenced Czajka's decision to convict.

'Less authoritarian people were less likely to use inadmissible evidence to convict the accused.' Judge Paul Czajka was undoubtedly more authoritarian, and thus, more likely to convict based on inadmissible evidence.

N5 [63] "At bench trials, judges have accepted outlandish scenarios from prosecutors that had little or nothing to do with the reality of a given case, or such jurists conveniently ignored facts that would mitigate against a defendant's guilt."

Czajka certainly seems to have 'conveniently ignored' the fact that 'Arthur' was wrong about literally every fact he testified to regarding Nickel's home , where the most serious act supposedly occurred.

E11 [172] "In a study of 1950s criminal trials, Harry Kalven, Jr. and Hans Zeisel, relying on questionnaire responses from judges...found that...[j]uries tended to acquit when judges would convict much more than juries tended to convict when judges would acquit."

[173] "This present article uses a new criminal case database assembled by the National Center for State Courts (NCSC) to partially replicate the Kalven and Zeisel study. Based on more than 300 trials in four locales, we find the rate of judge-jury agreement, over 70 percent, to be substantially the same as that found by Kalven and Zeisel. We also find a similar asymmetry in the pattern of disagreement; juries are much more likely to acquit when judges would convict than they are to convict when judges would acquit.

"The judges' lower threshold seems to be driving much of the difference."

[174] "Four sites participated in the data collection: the Central Division, Criminal, of the Los Angeles County Superior Court, California; the Maricopa County Superior Court (Phoenix), Arizona; the Bronx County Supreme Court, New York; and the Superior Court of the District of Columbia."

[181] Table 1: Judge-Jury Agreement on Conviction

Jury Acquits Jury Convicts

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A. NCSC Data

Judge Acquits 13% 6%

Judge Convicts 19% 62%

B. Kalven & Zeisel Data

Judge Acquits 14% 3%

Judge Convicts 19% 64%

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Note that, in cases where the judge disagreed with the jury verdict, the judge would have voted to convict when the jury actually acquitted more than three times more often than the judge would have voted to acquit when the jury voted to convict, as per the NCSC data; in the case of the Kalven & Zeisel data, the former occurred more than six times more often.

Jurors in both data sets were much more likely to disagree with a judge's decision to convict than with a judge's decision to acquit.

Again, the moral of the story would appear to be: Unless you're a police officer, don't opt for a bench trial.

B32 [178] "Former New York Supreme Court Judge Frank Barbaro stands as a prime example of how to interrogate one's instincts and decisions. Everything is stacked against it, but Barbaro found a way: 'I had a practice...that whenever I made a legal decision, I never let it lie. I ran it through my mind again.' There was one case in particular that he kept mulling over. In October 1999, the defendant, Donald Kagan, had waived his right to a jury trial, putting his fate entirely in Barbaro's hands. Kagan claimed that he had acted in self-defense when he shot and killed Wavell Wint outside a Brooklyn movie theater. But Judge Barbaro convicted him of second-degree murder and a weapons charge and sentenced him to fifteen years to life.

"Although it had been more than a decade, Barbaro told his wife, Patti, 'I really feel I need to revisit this case. I need to get the transcripts. I don't feel comfortable with this. It's been haunting me.' And when he pored over the record anew, he was 'absolutely horrified': 'It was so obvious that I had made a mistake. I got sick. Physically sick.'

"He realized that his own background and experience as a vigorous civil rights advocate had colored his treatment of the case: 'When the trial began, I was absolutely convinced that Donald Kagan [who was white] was a racist and was out looking for trouble and fully intended to kill Mr. Wint [who was black].' That frame had caused him to overlook evidence that suggested that Kagan acted in self-defense.

"Revisiting the facts, Wint now appeared to have been the aggressor. It seemed Kagan had shown his gun only to ward off a drunken Wint, who'd tried to rob Kagan of his gold chain. Wint's friends had dragged him away, but he'd fought them off and gone [179] right back into Kagan's face. When Kagan pulled his gun a second time, Wint went for it. In the scuffle, the gun fired into Wint's torso. In December 2013, fourteen years after Kagan had been convicted, Judge Barbaro took the witness stand to claim that his own verdict should be overturned: 'I believe now that I was seeing this young white fellow as a bigot, as someone who assassinated an African-American...I was prejudiced during the trial.'

"It is almost unheard of for a judge to admit that bias led him to err at trial. And it took real courage: the admission not only revealed an awful mistake -- his mistake -- to the world, but also opened him up to vicious attacks from prosecutors who portrayed him as a feeble-minded old man. But it seemed to Barbaro that the only way forward is to be fearless about looking back: '[T]he legal system should become very sensitive to the question of have we done justice? Have we made a mistake? And that's what I'm trying to do now.'"

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* [from FN24:] "A. Leo Levin & Harold K. Cohen, The Exclusionary Rules in Nonjury Criminal Cases, 119 U. Pa. L. Rev. 905, at 906."

** Carol M. Werner, Dorothy R. Kagehiro & Michael J. Strube, Conviction Proneness and the Authoritarian Juror: Inability to Disregard Information or Attitudinal Bias,? 67 Applied Psychol. 629, 631-32 (1982).