Judge David R. Cashman faces a decision few ever make: Will the man standing before him live or die?

Today the Common Pleas Court veteran could become the second Allegheny County judge in more than three decades to assume sole responsibility for deciding -- without a jury -- whether a defendant in a death penalty case should die.

Defense attorneys for Patrick J. Stollar, a 27-year-old landscape worker, said he plans to plead guilty to first-degree murder, admitting as he did to police that he robbed, beat and stabbed a 78-year-old woman whose yard he tended. Deputy District Attorney Mark V. Tranquilli said he will accept the plea, but he will not reduce the charges and will still seek a death sentence in the June 2003 slaying of Jean Heck, of Upper St. Clair.

Mr. Stollar, of Washington County, also plans to waive his right to a jury for the penalty phase of his trial, his attorneys said. The prosecutor said he will agree to this unusual setup. All the testimony will be argued before Judge Cashman, who would decide if Mr. Stollar should live or die.

Heavy decision

"That's a very, very heavy decision: who should live and who should die?" said Judge Gerald Kogan, who participated in about 1,200 capital cases as a defense attorney, chief homicide district attorney and trial judge in Miami. "If I was sitting there and this was in my hands, the first thing I would want to do would be to get the recommendation of a jury."

Only two other Allegheny County judges have had to grapple with this responsibility in recent decades.

Judge David S. Cercone, who now sits on the federal bench, imposed a death sentence in two separate non-jury trials. He sentenced Leroy Fears, of Hazelwood, to death in 1995 for strangling and sexually assaulting 12-year-old Shawn Hagan. And, in 1999, he gave a death sentence to Anthony J. Fiebiger, of Brookline, for strangling and burying his girlfriend Norma Parker, 53, of Carnegie. Mr. Fiebiger, who had already been sentenced to death in another case, asked the judge to rule against the advice of his lawyers. Judge Cercone declined to comment on the cases.

In 1982, the late Judge Joseph Ridge, a 21-year veteran of the bench, declined to decide whether defendant Miles Gabler, convicted of killing a Dormont drug dealer, should go to prison or the electric chair.

"The court does not want to make that determination," Judge Ridge said in rejecting Gabler's request. "That's too much for a mortal man."

The Supreme Court ruled that the judge had to hear the case, but Mr. Gabler then retracted his request, entering a plea of "not guilty. A jury found him guilty and imposed a death sentence which was later overturned. Gabler is serving a life sentence.

Suicide by judge?

Some legal scholars say that given the deputy district attorney's unwavering stance on a plea bargain, the defense attorneys have chosen a bold -- and risky -- strategy.

Judge Charlie Baird, who has overseen about 400 death penalty appeals in Texas, said a choice like Stollar's sometimes is an attempt at "suicide by judge."

"If the defense lawyer is doing this for strategic reasons, he damn sure better know who the judge is. Otherwise this is a reckless act," he said.

The most famous instance of a successful use of the judge-only approach may be the defense strategy used in the 1924 murder trial of Nathan F. Leopold Jr. and Richard Loeb. With public sentiment in Chicago strongly swayed against the teenage offenders, defense attorney Clarence Darrow decided to forgo a jury trial and face a man he'd heard was a "no hanging" judge.

Mr. Darrow told Chief Circuit Court Judge John R. Caverly, of Cook County, "I am aware that I have helped to place a serious burden upon your shoulders ... I know perfectly well that where responsibility is divided by 12, it is easy to say: 'Away with him.'

"Your Honor, if these boys hang, you must do it. There can be no division of responsibility here ... It must be by your deliberate, cool, premeditated act, without a chance to shift responsibility," he said.

The judge returned two life sentences on the murder and kidnapping charges against the defendants.

The defense in such cases must consider the other part of the equation.

"The other player is the prosecutor. If he's willing to waive the right and have the trial by judge, he probably knows something about the judge as well," said Judge Baird, who runs a committee through the Constitution Project in Washington, D.C. that is developing reforms to prevent wrongful executions.

In Philadelphia County, where capital cases are tried more frequently, it remains uncommon for judges to make the final decision alone.

"If you're doing a penalty phase in front of a judge, you generally expect to get a life sentence," said Marc Bookman, a senior defense attorney and trial lawyer in the Defender Association of Philadelphia. "I don't think a judge in Philadelphia has returned a death sentence in 12 or 13 years."

Duquesne University Law Professor Bruce Ledewitz said defense attorneys might leave the life-or-death choice to a seasoned judge in a torture case or a case where the murder victim is a police officer or a child -- cases in which juries might have strong gut reactions.

"But even in all those circumstances, you're still better off with a jury," he said. "If I can get one out of 12 to say that it's life, then it's life. Therefore to go one-on-one with a judge is usually not advisable from the point of view of the defendant," he said. "Remember, the judge has to run for a retention election."

If a capital case has a hung jury in the penalty phase, judges must impose a life sentence.

But James DePasquale, Mr. Stollar's attorney for the penalty phase, said he believes there is enough mitigating evidence to convince Judge Cashman to forego a death sentence. "Given everything that is at play in this case, we think it's the best way to preserve his life."

Judge's duty

Judge Cashman hears about 1,250 cases a year and said Friday he had not yet reviewed the voluminous files on Mr. Stollar.

During a pre-trial hearing last week, Judge Cashman explained to Mr. Stollar his constitutional right to a jury: "You can have 11 people voting for death and one person voting for life in prison and that would be the sentence. Do you understand?"

"Yes, your honor," the defendant said, facing the bench in a shirt and tie.

"In a non-jury decision, there is only one person. That is me. Do you understand?" Judge Cashman asked.

"Yes, your honor," he said.

This will be the first capital case Judge Cashman has heard in his 17 years on the job. It's part of his duty as a judge, he said: "You don't get to pick and choose your cases."

"We have to obey, defend and uphold the laws of the Commonwealth of Pennsylvania and that's one of them," he said.