The judge takes it away

The notion of trial by jury is an American staple. But it doesn't't have to work out that way.

Sometimes, the person on trial decides the chances are better by waiving a jury trial and letting the judge decide. Take, for example, sex crimes involving children, where the details of the crime are so inflammatory the defense believes a jury of lay people would disregard reasonable doubt and the rules of evidence.

And sometimes the trial judge takes the decision out of the jury's hands.

That's what happened Friday when Philadelphia Common Pleas Court Judge James Murray Lynn acquitted two former Philadelphia police officers accused of assaulting and breaking the jaw of a graffitist after he spray-painted his alias on the wall of a Feltonville building.

It's known as a "directed verdict of acquittal" – Rule 29 in federal court parlance, Rule 606 in the guidelines that apply in Philadelphia Common Pleas Court – and if its use is not common, neither is it unheard of.

Typically it's a defense motion at the end of the prosecutor's case and it gives the judge the right to short-circuit the trial process in the interest of justice. As Judge Lynn explained it Friday, the judge may intervene when the prosecution's evidence is such that no reasonable jury could return a verdict of guilty "beyond a reasonable doubt."

Of course, the corollary of that definition is that an "unreasonable jury" could very well return a verdict of guilty, resulting in the imprisonment of a wrongly convicted defendant and a series of lengthy appeals.

It's a tough call, and Lynn spent about four hours closeted in the law library and talking with law clerks and interns before returning to court at about 4:30 p.m. Friday to acquit former officers Sheldon B. Fitzgerald and Howard Hill 3d and then thank the jury for its three days of service. On the one hand, the prosecution presented a case of a man, David Vernitsky, with a broken jaw, three lost teeth, a black eye and lots of bruises, and officers who did not arrest him and allegedly falsified their incident log to say they were elsewhere. On the other hand, there were two young officers whose lawyers argued Vernitsky fled and hit his head on a parked when he was tackled and apprehended. And there was Vernitsky himself, who admitted he lied to police, investigators – and the jury – and whose tag "Oz" appeared in an elevator and stairwell after he testified and left the city's Criminal Justice Center.

Had Lynn ruled otherwise, the jury would have returned Monday to begin hearing the defense case. The jurors were not in mourning: a few cheers were heard before the door to the jury room closed behind them.