Having suffered from an ill-informed jury in a commercial case where the judge all but threw out the jury verdict based on the facts, I would tend to go with a bench trial - if there was no way to ensure that the jury was going to be knowledgeable enough and objective enough to evaluate the evidence. In this case, there is a real risk of a runaway jury. The judge would be unlikely to ignore the preponderance of the evidence.
A partner in a law firm subsequently told me that there is roughly a 30% chance that a jury will come to a conclusion not supported by the preponderance of evidence in a case. That is one scary number if you are innocent - but not bad odds if you are guilty but can appeal to the jury's sympathy in some way. Law firms with strong but complex cases hate jury trials.
The tough issue here is that NiFong appears to have friends on the bench.
This is why I suspect the defense wants this case thrown out. Our judicial system has too many wild cards.
The boys could end up stuck between a runaway jury and a corrupt judge....
It's a different dynamic. In a civil case, it's about money and the standard is preponderance of the evidence. In a criminal case, it's about getting ONE juror to swing your way. If the facts favor you, then you want smart jurors, who will see what happened.
Civil defense lawyers hate jurors, but criminal defense lawyers love them.
A civil jury typically only requires a 10-2 or a 9-3 vote, so winning one of those is easier than getting 12-0 in a criminal case.