Those who have been kind enough to follow the posts over the last two days have seen some terrific comments and questions about why federal judges are statistically more likely to acquit in criminal cases than juries are. Here are a few more findings, and then a couple of observations on the comments (The full study is available on SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=843606.)
I mentioned yesterday that the category of crime the defendant was accused of committing (drug, immigration, violent, public order, etc.) showed some variation, but at the end of the road, judges always acquit more than juries, regardless of the crime type. That statement holds true across the following variables:
[1] Judges are more likely to acquit whether the crime is a felony or a misdemeanor. This was significant, since 89% of all serious misdemeanors (i.e., those for which defendant *could* have a jury) are tried to the judge, and 74% of bench trials involved misdemeanors.
I do think the high percentage of “bench” misdemeanors explains something, even if it does not explain the change in judicial behavior over time. My guess is that misdemeanor cases get less experienced investigators and prosecutors, less grand jury investigation, and less preparation generally. These shortcomings may not be obvious to a jury, but may be quite obvious to a judge, and thus may explain part of the conviction gap. But the gap remains when we look at felonies only, so this is a partial answer at best.
[2] Judges are more likely to acquit than juries regardless of the type of defense counsel – private, panel, public defender, or pro se. I had wondered whether group norms or workload pressures might explain some of the differences, but they really don’t. Defendants represented by different counsel type do roughly the same (badly) before juries, all being convicted at a 82% – 87% rate, while defendants with all types of defense counsel do much better in front of judges.
[3] Judges are more likely to acquit in all parts of the country. I wondered if differences in case loads, case mix, local rules, circuit law, and jury pools might lead to regional differences. Wrong again. In *every* circuit, the district court juries convict 80% to 89% of the time (the First Circuit has the lowest rate, the Seventh Circuit the highest), and in every circuit, the district court judges convict a lower percentage of the time, with most in the 50 to 70 percent range.
In fact, when I looked at individual districts, it turns out that juries convicted more often in 89 out of the 94 districts in the country. The five districts with slightly higher judicial conviction rates were the D. Colorado, W.D. Arkansas, E.D. Wisconsin, W.D. Wisconsin, and E.D. Missouri.
Tomorrow I’ll talk about the conclusions I drew from these numbers. But here I’ll briefly comment on a couple of the comments in the posts and some of the off-list emails.
1. Some folks asked if the political party, background, or age of the judge, or the identity of the appointing president was considered. It was not. The database I used did not provide this information, and it would have been a logistical nightmare to get it. A lame excuse perhaps, but I have doubts about the value of the information even if I could get it. I’m just not clever enough to put many of these variables to work – when a district judge is appointed, how much of the decision is the President and how much is the State’s Senators? Is a Massachusetts Republican the same as a Utah Democrat? I’m dubious that the results would shed enough light on the topic to make it worth the effort, although I know many people who would disagree.
2. A couple of comments raised the issue of sample election bias, a point I note briefly in the paper although not by that name. As I indicated earlier, this may be exactly right, but I don’t know how to tell if it is right. Perhaps it is a pure strength-of-the-evidence calculation by the defense (strong case judge, weak case jury), but putting aside the difficulty of measuring this, I still wonder. This kind of analysis was sometimes but not routinely mentioned by the defense counsel I interviewed. The flavor of their comments was that juries were presumptively better in all types of cases, regardless of the evidence strength. (And BTW, many of the defense counsel very extremely candid with me about their strategies.) But if I do a follow up on this article someday, I agree that more statistical modeling could offer real insights.
Thanks to all for your continued interest. Comments welcome, aleipold@law.uiuc.edu.