by Vin Suprynowicz
Few paid much heed, back in May of 2001, when the seven-member California Supreme Court unanimously backed a Santa Clara County judge's actions in dismissing a juror who expressed the opinion in the jury room that statutory rape shouldn't be a crime.
“Under California's 1998 'snitch' rule,” Associated Press writer David Kravets wrote, “judges routinely order jurors to inform the court if a juror is not applying the law during deliberations. That is what happened in the case decided Monday.”
An alternate juror stepped in to replace the uncooperative member of the panel – depriving defendant Arasheik Williams of his Sixth Amendment right to a randomly selected jury of his peers – and the panel, thus reorganized and stacked in favor of conviction by the county judge, duly convicted young Mr. Williams of having sex with a willing 15-year-old girl (the court made no mention of whether the defendant was offered the option of marrying the lass), whereupon the culprit was sentenced to six years in a California state prison, where he will doubtless get plenty more sex, albeit neither consensual nor heterosexual. (The court did not comment on whether this will be considered “statutory” or not.)
“Jury nullification is contrary to our ideal of equal justice for all and permits both the prosecution's case and the defendant's fate to depend upon the whims of a particular jury, rather than upon the equal application of settled rules of law,” Chief Justice Ronald M. George wrote for the seven Sacramento lawyer-politicians.
But that's nonsense on several counts.
First, the Sixth Amendment means precisely that a defendant can be acquitted based on “the whims of a particular jury.” What else does the dishonorable Mr. George think it means? That the government gets to keep trying jury after jury, no matter how many choose to acquit?
Second, in a pragmatic sense, no American jury can “crank up the charge” and convict a defendant of an offense more serious than the one prosecutors decided to present and the courts decided to allow – any such conviction would be instantly set aside. So this so-called “high court's” stated concern for “the defendant's fate” is pure misdirection. Fully-informed juries can displease the courts only by acquitting when both members of the prosecution team (the one in front of the bench, and the black-robed one behind the bench) are counting on being able to cut another notch in their barrels – the citizen jury can err only on the side of mercy.
But more significantly, the D.C. Court of Appeals confirmed in 1972, in one of the biggest Vietnam draft-dodger cases, that our modern juries today still retain “an unreviewable and irreversible power... to acquit in disregard of the instructions on the law given by the trial judge. The pages of history shine upon instances of the jury's exercise of its prerogative to disregard instructions of the judge; for instance, acquittals under the fugitive slave law.”
I called Houston appellate attorney Clay Conrad, author of the 1998 book Jury Nullification: The Evolution of a Doctrine (Carolina Academic Press), to ask about this latest pathetic attempt by the professional judges to dilute the traditional rights and powers of these inconvenient citizen juries.
“This is one area where the courts blunder and stumble and can't figure out what to do,” Conrad told me. “All they can do is stomp their feet and say 'We don't like it.' This is one more case where the decision is almost all pure dicta – dicta is legalese for any language in the decision that doesn't actually affect the opinion – because there's nothing the court can do to affect what jurors can and cannot do.”
In this case, the county judge asked jurors to snitch on one another if any of them started a discussion of whether the law made sense, I pointed out. Now that a state supreme court has upheld that precedent, what's to stop the judge from stationing a bailiff inside the jury room to supervise deliberations... or simply walking in and sitting down, announcing “I'm going to be your foreman, to make sure you do this right”?
“That's against federal law,” Conrad replied. “This dates back to the 1960s, when the book The American Jury was being written. The Chicago Jury Project actually put microphones in a jury room. Congress was so outraged they passed a law that no one can stick their noses in a jury room during deliberations. ...
“The judge can't go in, so they're reduced to using fellow jurors as snitches, which is what they did here. But now that you know the other jurors can snitch on you, what's that going to do? Jurors will be less willing to raise a discussion of whether the law is appropriate, but they're still free to just say, 'I refuse to convict; I still think there's a reasonable doubt.' So since there can't be a forthright discussion of the possible reasons to acquit, the chances grow that you'll have hung juries. What we'll see now are more hung juries, and then their next target will be the unanimous jury rule. The Constitution lets them go down to 9-to-3, so that's what you can expect them to start pushing next.”
A number of states have acknowledged, in recent years, grumblings of dissatisfaction among the ever larger cadres of citizens being dragooned into jury duty. These pathetic draftees are marched around our courthouses like bizarre, superannuated versions of visiting kindergarten classes or troops of obedient Lipizzaner geldings, counting off by number, standing around pawing the floor or filing in to fill the cheap seats as requested.
But most of these “reforms” have concentrated on getting these fretful and inconvenient bodies of “citizen” cud-chewers in and out more quickly so they'll stop whining. When jurors are tentatively granted any actual new “powers” to ask their own questions (for instance) these are carefully circumscribed by requiring that said questions be submitted in writing to the judge, and so forth.
After nearly a year of work, for instance, the Nevada Supreme Court's Jury Improvement Commission delivered a series of recommended reforms in the summer of 2002, summarized by Bill Gang, program coordinator for Nevada's Administrative Office of the Courts, in the August/September issue of the Clark County (Las Vegas) Bar Association's magazine, Communique.
“The jury system is a fundamental freedom that links the citizens to the justice system, giving ultimate authority to the citizens who serve on our juries,” Mr. Gang writes. “Juries are a vital... check and balance over those who have the power of arrest and prosecution. Through their decisions, jurors set community standards and pass judgment not only on criminal defendants and civil litigants, but also on the justice system itself.”
Well, hooray. Truer words were seldom spoke. But unfortunately, while most of the reforms offered up by the Nevada Commission would advance this proper jury role somewhat, they fall woefully (and predictably) short of actually informing jurors about their position of “ultimate authority” to which Mr. Gang gives such a hearty rhetorical endorsement.
The Nevada commission recommends all jurors be allowed to take notes and “ask questions in all cases,” for example. Good start. But then we're informed the jury questions must be submitted in writing to the judge, who will “rule on the admissibility of the question.”
Oh well: Better than nothing. At least jurors who see their question go unasked and unanswered may gain a clearer idea of what the court means when it requires witnesses to swear they will “tell the whole truth.”
But sure enough, Nevada's jury commission neatly sidesteps the very reform with the greatest likelihood of reminding citizen jurors that they indeed hold the “ultimate authority” to pass the judgment of the community on the law as well as the facts.
The Nevada “jury reforms” say nothing about limiting voir dire questioning to its original purpose – exploring connections between prospective jurors and the principals of the case. Instead, questioning designed to screen out jurors who may have problems with the underlying statute is allowed to continue unabated.
In fact, many states that have recently undertaken jury “reform” – always under special commissions appointed by the judges themselves, of course – have actually managed to further institutionalize “voir dire” jury-stacking.
Adopted in 1998, Colorado's so-called jury “reforms” specify that the judge shall demand of jurors in criminal cases, “If you are selected to sit as a juror in this case, will you be able and willing to render a verdict solely on the evidence presented at trial, and the law as I give it to you in my instructions, disregarding any other ideas, notions, or beliefs about the law you may have encountered?”
Needless to say, if such questioning had been allowed before trials under the Fugitive Slave Act in the 1850s, abolitionists would have been systematically screened off those jury panels, and the “pages of history” would not have “shined upon” that “instance of the jury's exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge,” when Northern juries systematically refused to convict under a hideous and inhumane statute offensive to the popular conscience. (The words in quotation marks are those of the D.C. Circuit Court of Appeals in the aforementioned 1972 case, U.S. vs. Dougherty, in which that court reaffirmed that all juries have an “unreviewable and irreversible power... to acquit in disregard of the instructions on the law given by the trial judge.”)
This power of the American citizen jury to judge the law as well as the facts of the case has never been revoked. Rather, the Supreme Court in its insidious 1895 decision in Sparf vs. U.S. simply ruled that although juries still have the right to ignore a judge's instructions on the law, they no longer need be told about it.
That is what has reduced jury service to a pathetic shadow of its intended role as a protector of our liberties. If our juries are truly to be the “ultimate authority,” to form a “vital check and balance over those who have the power of arrest and prosecution,” then for heaven's sake let our jurors once again be informed (in the words of the United States Court of Appeals for the District of Maryland in its 1969 ruling in U.S. vs. Moylan) of “the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. ...The jury has the power to acquit, and the courts must abide by that decision.” l
“When great changes occur in history, when great principles are involved as a rule the majority are wrong. The minority are right.” – Eugene V. Debs (1855-1926)
“The whole aim of practical politics is to keep the populace alarmed – and thus clamorous to be led to safety – by menacing it with an endless series of hobgoblins, all of them imaginary.” – H.L. Mencken