It's a question as old as jurisprudence itself: Do jury trials produce "fairer" verdicts than cases tried before a judge?
Many prosecutors argue they do, at least when defendants "shop" for a judge they hope will be sympathetic to their situations.
Now, the legal sharpshooters for the state of Pennsylvania want the right to demand a trial by jury for people charged with crimes - even if those defendants prefer trial by judge.
The issue, which comes before Pennsylvania voters tomorrow in the form of a ballot measure, has widened the rift between state prosecutors and defense lawyers here. But more important, it has called into question the role and responsibility of judges in the criminal-justice process - and revived the debate about what constitutes a "level playing field" in a court of law.
In trials, "there is no level playing field," argues Neal Sonnett, a Florida criminal defense attorney who has also worked as a federal prosecutor. "The fact is that the prosecution has a significant advantage - better resources, a bevy of investigators. For most defendants, trials are heavily tilted in favor of the prosecution."
Currently, 24 states and the District of Columbia allow prosecutors to force a jury trial, even if a defendant waives that right. Pennsylvania used to require that defendants obtain the consent of prosecutors to forgo a jury trial, but the state Supreme Court removed that provision in 1973.
THE ballot measure - which has the support of the Pennsylvania Coalition Against Rape and a roster of district attorneys - would amend the state constitution. While a constitutional amendment is a big step for voters to take, prosecutors say it's a necessary one.
"We believe that the overwhelming majority of judges do an excellent job, but judges are human beings, and sometimes they have blind spots," says Gary Tennis, legislative liaison for the Pennsylvania District Attorneys Association and a strong proponent of the amendment. "In those cases, we need to bring in juries."
But others see a degree of judge-bashing in the ballot measure.
"What they're really saying is, 'Judge, we don't trust you to give us a fair shake at trial,' " says Arthur Thomas Donato, past president of the Pennsylvania Association of Criminal Defense Lawyers and a Villanova University faculty member.
The amendment has raised other issues, as well - among them a concern that the court calendar could become glutted with new jury cases, especially in big cities such as Philadelphia and Pittsburgh.
"Like every other metropolitan city in the US, we [in Philadelphia] have a difficult time now managing our caseload inventory," says Judge Alex Bonavitacola, Philadelphia Common Pleas Court president. "It's a numbers game, and I don't know how many more cases, on the jury side, we can accommodate. We are stretched now. We have a new criminal-justice center, and every one of those courtrooms is occupied."
But the measure's supporters say its impact would be minimal. Mr. Tennis expects a 10 percent increase in jury trials, or about 65 additional trials a year in Philadelphia. "That's not a significant backlog and will not create a backlog," he says.
Backers also argue that public jury trials are more satisfying for crime victims, who thereby have an opportunity to confront the accused in court.
Two powerful groups, the Philadelphia Bar Association and the National Rifle Association, have taken no stand, though the American Bar Association has endorsed the prosecutors' right to demand a jury trial for defendants.
Arrayed against the measure are the American Civil Liberties Union, the Pennsylvania Conference of State Trial Judges, the Hispanic Bar Association, the Pennsylvania chapter of the National Organization for Women, and The Philadelphia Inquirer. Among their concerns is the fear that some defendants, unable to pay the added expense of a jury trial, might plead guilty to lesser charges.
For The Philadelphia Inquirer, the amending of the state constitution is a key issue underlying the debate. On Oct. 29, the paper stated in an editorial that an amendment "shouldn't be done with as little debate as has occurred here."
Tennis, however, notes that the bill has been in the state legislature since the 1970s. "To reach this point, it had to actually be approved in the legislature by two consecutive sessions, in 1996 and 1998, and there were editorials all over the state last spring. If we debated any longer, it would be the longest in the history of the commonwealth."
But opponents are unconvinced. "This is the silliest of all reasons I can think of ... for amending the constitution," says Mr. Donato.