Why to Fear a Jury of Your Peers

Richard Grasso, the embattled former head of the New York Stock Exchange, is demanding that a jury decide whether he deserved $190 million for doing his job, and who can blame him?

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That at least is the conventional wisdom, and probably what provoked Grasso's lawyers to appeal when a judge ruled that he alone would decide whether 190 million big ones were unreasonable pay for the head of a nominally not-for-profit corporation like the stock exchange. (The lawyers have decided not to comment, having failed to amuse the judge with past quips to the press.) If the answer is yes, as New York Attorney General (and gubernatorial candidate) Eliot Spitzer contends, then Grasso must pay back most of the money. If it's no, then the case moves to a second stage, a jury trial on whether the exchange board got tricked into paying the dough or was lax in enforcing its rules. Festivities are scheduled to begin October 16.

The thing about conventional wisdom, though, is that it's not always right. And in this case, according to a new study by professor Andrew Leipold at the University of Illinois College of Law, it's dead wrong, at least in federal criminal trials. Though Grasso's case is a civil action in state court, the study's findings are so dramatic that they make you wonder why he or any other defendant would let a jury near a case.

Leipold looked at the records in more than 75,000 federal criminal trials from 1989 through 2002. In about three-quarters of the cases, defendants chose to have a jury rather than a judge decide the outcome, as is their right under the Constitution. This was generally not a smart move. Judges convicted about 55 percent of the time, while the jury conviction rate was a whopping 84 percent.

The results surprised almost all the lawyers — defense attorneys as well as prosecutors — Leipold interviewed for the study. The defense folks said they preferred juries because judges feel too much pressure to convict, are wise to defense tricks, or hear a lot of negative information about the defendant before trial. Prosecutors admitted that they had believed that juries probably gave the accused a better chance at acquittal.

So how could the supposed experts be so wrong? Leipold isn't sure, though he meticulously explored a variety of possibilities. A promising one is that since neither side wants to spend a lot of time and money on the many cases involving misdemeanors, or minor crimes, defense lawyers typically request a quick trial before a judge, prosecutors don't bother to prepare thoroughly, and the result is often acquittal. Another possibility is that judges so resented the federal sentencing guidelines, which replaced judicial discretion with strict and frequently harsh rules, that they demanded stronger proof of guilt when the prescribed sentence seemed unfair. Leipold leans to this explanation because judges started to acquit even more often at about the time the guidelines went into effect.

Still, none of the theories quite explains why juries are so quick to find guilt, no matter the type of offense, the quality of the lawyer, or the region of the country. It seems that the inspiring scenario of a Henry Fonda-like figure prevailing over those angry men in the jury room really does only happen in the movies. And that can't be good news for a guy who wants to persuade a jury of his peers that he deserved a $190 million paycheck.

Holding is the former executive editor of Legal Affairs magazine and legal columnist and investigative reporter for The San Francisco Chronicle.