[lbo-talk] Jury duty

Nick C. Woomer-Deters nwoomer at gmail.com
Tue Nov 14 20:26:01 PST 2006


This is coming from a criminal defense attorney, so I can't claim any objectivity on this question, but I would say -- and emphatically so -- that it would have been okay for your friend to find the defendant not guilty in order to punish the cops.

Now, in theory at least, the judge (on the defense attorney's motion) should have worked to ensure that the jury only heard admissible evidence, and the jury should have weighed that evidence, determined whether it proved the defendant's guilt beyond a reasonable doubt, and reached its verdict based on the evidence it heard. So, jurors are supposed to defer to the judges' "expertise" to decide what is illegally acquired evidence and what is not. But judges make bad rulings all the time. And in situations where the judiciary fails to do its job, it's important to remember the words of the revered leftist jurist Antonin Scalia from Blakely v. Washington ( http://www.law.cornell.edu/supct/html/02-1632.ZO.html):

"Our commitment to *Apprendi* in this context reflects not just respect for longstanding precedent, but the need to give intelligible content to the right of jury trial. That right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people's ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary. See Letter XV by the Federal Farmer (Jan. 18, 1788), reprinted in 2 The Complete Anti-Federalist 315, 320 (H. Storing ed. 1981) (describing the jury as "secur[ing] to the people at large, their just and rightful controul in the judicial department"); John Adams, Diary Entry (Feb. 12, 1771), reprinted in 2 Works of John Adams 252, 253 (C. Adams ed. 1850) ("[T]he common people, should have as complete a control … in every judgment of a court of judicature" as in the legislature); Letter from Thomas Jefferson to the Abbé Arnoux (July 19, 1789), reprinted in 15 Papers of Thomas Jefferson 282, 283 (J. Boyd ed. 1958) ("Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative"); *Jones* v. *United States, *526 U.S. 227<http://www.law.cornell.edu/supct-cgi/get-us-cite?526+227>, 244—248 (1999). *Apprendi* carries out this design by ensuring that the judge's authority to sentence derives wholly from the jury's verdict. Without that restriction, the jury would not exercise the control that the Framers intended."

So Scalia analogizes the jury's verdict, based on what it hears, to the citizen's vote. To make the leap from the proposition that it is okay for a juror to decide the guilt or innocence of a defendant based on the evidence it hears to the proposition that it is okay for a juror to find a defendant not guilty when she questions whether the evidence used to convict that defendant was admissible or not, one need only decide that civil disobedience is a justifiable intervention in the political process. If it's okay to ignore a legislative mandate in the name of a higher good, why shouldn't you also be able to ignore a judicial mandate for the same reason?

My understanding is that there are parts of the U.S. where the government has never been able to convict people of certain crimes, because the juries don't like the underlying law. In the upper peninsula of Michigan, for example, I've heard that the juries absolutely refuse to convict people of tax evasion, not matter how strong the government's case is.

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