Judging the law: when the judge is the jury

In the line of civil rights and liberty tracing back to Magna Carta (and earlier), the guarantee of trial by jury stands above all others. Nothing so symbolizes what we like to think of as the fair-and-square American way of justice.

Like the English who gave us the idea, we consider the jury right not only sacred but practical. Every state constitution enshrines it. The United States Constitution almost missed because of its silence on the subject; finally, ratification supporters promised to repair the omission at the first opportunity , which they did in the Sixth Amendment.

The very phrase ''a jury of his peers'' has passed into ordinary speech. Today, if a new restaurant opens in town and you ask a friend for his evaluation , he is liable to answer, ''I've been there once, but the jury's still out,'' meaning he has not quite made up his mind.

The practical aspects of trial by jury, although not widely recognized by the general public, play a strong if subtle role in its popularity. When searching for the truth, 12 minds and 12 life backgrounds may well be handier at solving the riddle than one lone, middle-aged, black-robed ex-lawyer. Or, to put it slightly differently, the ''slant,'' even the outright bias, of any one juror undergoes appropriate neutralization in the presence of 11 other viewponts; the judge's bench offers no such counterweight.

Then, too, a jury when deciding such necessarily cloudy issues as a defendant's intent or his ability to control his actions can bring to bear, not only a sense of the community, but the community's quality of mercy. This can be done because for all practical purposes a jury is anonymous. It materializes from the public, hears the evidence, decides guilt/innocence, and then (except in the rarest of cases) slips back into the general run of humanity.

Yet, for all the jury trial's place in the pantheon, every so often a judge waiting to preside over a criminal trial hears the defendant's lawyer say, just before the jury selection starts: ''Your Honor, we'd like to go jury-waived.''

In some states, the government can veto the proposal; elsewhere, including Massachusetts, the decision rests wholly with the defendant. The judge has the right to decline, but only for ''good and sufficient reason.'' Unfortunately, the reasons the judge would like to give are probably neither good nor sufficient.

To begin with, before a juryless trial can go forward, the judge and the defendant must conduct a lengthy, on-the-record, under-oath discussion, to make sure the defendant knows what he is giving up. At times, the questioning sounds like a high school civics lesson, or a debate in which the judge has the negative of the issue: ''Would anyone in his right mind give up a jury trial?'' The line between assuring an informed, voluntary waiver and attempting to effect its abandonment is sometimes quite faint.

I don't suggest that judges actively dissuade defendants from waiving the jury. Still, the judge facing a non-jury criminal case would really prefer something else.

For one thing, unless the judge is very new or cosmically overconfident, he doubts deeply his infallibility when it comes to testing credibility. That is, he is not unshakably certain that he can detect a liar, or even that he can track the truth through a maze of honest disagreement.

Then too, a judge is acutely aware of the difference between ''probably true, '' or ''more likely true than not,'' on the one hand, and ''proved beyond a reasonable doubt,'' on the other. Only one thing is more painful than having to conclude that the government's case, although strong, does not reach the requisite certainty, and that is having to acquit because although the defendant certainly committed the crime, the vital evidence is inadmissible. The judge learns the tainted fact while ruling on its exclusion; but must instruct himself not to consider the evidence when assaying guilt.

These are distinctions we expect jurors to draw when applying the reasonable-doubt test or disregarding evidence which a judge has told them to forget. Somehow, when the person obeying your ruling is you, the job becomes harder.

A judge cannot operate anonymously or with the comfort of numbers. He may or may not give reasons for his decision, but decide he must, right there where everyone can see. A jury can take as long as it needs to deliberate; a judge is expected to bring in his finding within a few minutes after the closing arguments. Afterward, when a jury would have evaporated into perpetual anonymity , a judge is still there - as he should be - open to individual attention.

The most troubling aspect of trial by judge is the implicit suggestion that a defendant stands a better chance with a judge. Defendants, understandably, do not look for some conceptual ''fair trial''; all they want is acquittal. They do not waive a jury from disagreement with Magna Carta or the Sixth Amendment. They opt for bench trials in the prayerful belief that a judge will be less likely than jurors to read the evidence unfavorably.

Whether a defendant's preference stems from a fear of jury prejudice or the jurors' inability to understand a technical defense or a simple hope that this particular judge is less likely to find this particular case proved beyond a reasonable doubt, the thought is the same: ''Judge, I think I'm better off with you.'' One is never sure whether the message conveys a prayer, a confession, or a challenge. In either event, it is a message most judges would just as soom not receive.

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