Tuesday, October 25, 2005
The Trouble With Juries
The past summer, as we steamed out of Russia, the wife and I listened to a lecture from Hugh Hewitt. When I blogged about it at the time, I said
That said - there is one thing that is undeniable. After the last five days, the problems with American jurisprudence have gone from academic to very real to me, and I find them truly frightening.
The case I was involved in was a very straightforward case, based on a tape recorded conversation between an undercover police officer and the defendant. The crime was pandering, which is a specific intent crime. The defense stipulated to the findings of fact in the case, and the only issue in question was intent.
I thought the defendant guilty. My opposition in the jury room came in two primary forms, neither of which was based in any way on the law or the evidence. Let me repeat that - none of those in the jury room that argued for a not guilty verdict did so on the basis of the law or the evidence.
One "not guilty" argument came from a rather overzealous civil libertarian, who, despite his assurance in voir dire that he could and would equitably apply the law regardless of his personal feelings about its validity, choose to argue that "someone cannot be convicted of a crime just because he engaged in conversation." This is straightforward - someone lied in voir dire, procedures exist to fix that.
The other "not guilty" argument was blatantly racist, which, of course, was expressed by the accusation that I was a racist because of where I lived and I did not understand how things were in their neighborhood. My accusers were, of course, unable to explain precisely "how things were in their neighborhood" and why that negated the law that applied to the rest of the jurisdiction - it just simply did.
When I asked that the foreperson reread the jury instructions, something which would have demonstrated the lack of basis for either argument, I was refused and told, "Those don't matter."
All of what I have said here is a basis for a mistrial. But it was obvious from the first five minutes of deliberations that the jury was going to hang, which is also a mistrial, so I saw no need to create further antagonism without having any appreciable effect on the result.
It was the "different in our neighborhood" argument that troubled my soul. Less because of the very wounding accusations hurled my way, but more because of the very reasons Hugh cited that would keep Russia from being a genuine worry. The essence of this argument is that the law does not apply equally to all people.
High School Civics class, first day, first words:
There was a time, sadly, when the law did not apply equally to all people in our nation. It is our great national shame; fortunately, it is not true any more. More importantly; however, the solution to that former gross injustice lies not in changing what people group gets the benefits of that unequal application - it lies, rather, in assuring EQUAL application.
When deliberations began, I was one of three on the "guilty" side and the only one willing to argue for it. When we agreed to hang, I had convinced enough people that the jury appeared genuinely, numerically divided, and the judge readily accepted our conclusion that we were hung. I take pride in that. There can be a retrial - a result far superior to some of the more high profile, and unjust, results that have happened in this very same courthouse.
But I am deeply, deeply saddened. What I saw makes me fear gravely for justice in this country. When people are willing to jettison the law for reasons of race, or simple disagreement, justice ceases to exist. We become a genuine tyranny of the people.
I am moved to my knees in prayer for comfort and hope. I hope you will join me.
Essentially, Hugh thinks Russia will be of little concern for the foreseeable future because of the endemic corruption and the lack of equal applicability of the law to all its citizens.After completing my jury duty with a hung jury, I now have the same fear for the US. This post is being written just a couple of hours after leaving the courtroom, and is as much a soul purging as it is anything else, and I may be overstating the case somewhat.
That said - there is one thing that is undeniable. After the last five days, the problems with American jurisprudence have gone from academic to very real to me, and I find them truly frightening.
The case I was involved in was a very straightforward case, based on a tape recorded conversation between an undercover police officer and the defendant. The crime was pandering, which is a specific intent crime. The defense stipulated to the findings of fact in the case, and the only issue in question was intent.
I thought the defendant guilty. My opposition in the jury room came in two primary forms, neither of which was based in any way on the law or the evidence. Let me repeat that - none of those in the jury room that argued for a not guilty verdict did so on the basis of the law or the evidence.
One "not guilty" argument came from a rather overzealous civil libertarian, who, despite his assurance in voir dire that he could and would equitably apply the law regardless of his personal feelings about its validity, choose to argue that "someone cannot be convicted of a crime just because he engaged in conversation." This is straightforward - someone lied in voir dire, procedures exist to fix that.
The other "not guilty" argument was blatantly racist, which, of course, was expressed by the accusation that I was a racist because of where I lived and I did not understand how things were in their neighborhood. My accusers were, of course, unable to explain precisely "how things were in their neighborhood" and why that negated the law that applied to the rest of the jurisdiction - it just simply did.
When I asked that the foreperson reread the jury instructions, something which would have demonstrated the lack of basis for either argument, I was refused and told, "Those don't matter."
All of what I have said here is a basis for a mistrial. But it was obvious from the first five minutes of deliberations that the jury was going to hang, which is also a mistrial, so I saw no need to create further antagonism without having any appreciable effect on the result.
It was the "different in our neighborhood" argument that troubled my soul. Less because of the very wounding accusations hurled my way, but more because of the very reasons Hugh cited that would keep Russia from being a genuine worry. The essence of this argument is that the law does not apply equally to all people.
High School Civics class, first day, first words:
Ours is a nation of laws not men.Those words, that idea, that sentiment has made this nation great. It has, given time, undone the injustices that our society wrought early on.
There was a time, sadly, when the law did not apply equally to all people in our nation. It is our great national shame; fortunately, it is not true any more. More importantly; however, the solution to that former gross injustice lies not in changing what people group gets the benefits of that unequal application - it lies, rather, in assuring EQUAL application.
When deliberations began, I was one of three on the "guilty" side and the only one willing to argue for it. When we agreed to hang, I had convinced enough people that the jury appeared genuinely, numerically divided, and the judge readily accepted our conclusion that we were hung. I take pride in that. There can be a retrial - a result far superior to some of the more high profile, and unjust, results that have happened in this very same courthouse.
But I am deeply, deeply saddened. What I saw makes me fear gravely for justice in this country. When people are willing to jettison the law for reasons of race, or simple disagreement, justice ceases to exist. We become a genuine tyranny of the people.
I am moved to my knees in prayer for comfort and hope. I hope you will join me.
