Emilio no longer looks me in the eye, but Molly has become vicious.

December 4, 2015 12:19 PM

Jury Duty, by Anonymous. (SL Medium): There is one other person in the room who doesn’t quite fit in, the Latino man who is the only other male juror of color. He sits and stares out the window. He doesn’t join in on small talk. “I haven’t been sleeping,” he says, when asked why he is so silent. “A man’s life is at stake.” I think of him as Henry Fonda in 12 Angry Men. We will share this role.
posted by roomthreeseventeen (132 comments total)

That was a really good read, thanks.

Edith looks up from a game of solitaire and casually mentions that she actually thinks the murder was committed by the accomplice, who was never found and is not on trial. But since the defendant’s lawyer did such a poor job exonerating him, she concludes, she’s going to deliver a guilty verdict.
posted by ODiV at 12:40 PM on December 4, 2015 [10 favorites]

I was just reading that! Good read.
posted by a halcyon day at 12:47 PM on December 4, 2015

That was a very depressing and excellent article.
posted by Edgewise at 12:50 PM on December 4, 2015 [2 favorites]

What a gut punch.
posted by Phire at 1:03 PM on December 4, 2015

A juror who knows what jury nullification is, has read and understood Janet Malcolm, and gets the message behind 12 Angry Men is as close to ideal as possible in a criminal trial. (I'm guessing many prosecutors would disagree with me...)
posted by sallybrown at 1:07 PM on December 4, 2015 [18 favorites]

(But it also made me ever-so-slightly suspicious that this story is a figment of someone's imagination, being too good to be true.)
posted by sallybrown at 1:08 PM on December 4, 2015 [13 favorites]

That article pretty much sums up my experience with juries. Except there were both people who would have voted to convict no matter the evidence and people who would have voted to acquit no matter the evidence. The just outcome appears to me to mostly depend on chance and voir dire.
posted by Justinian at 1:13 PM on December 4, 2015 [3 favorites]

We file into the courtroom to see the judge, who reads out the Webster’s Dictionary definition of common sense.

The last time I was empaneled, I was juror number 12. When deliberations began, jurors 1 through 11 walked into the jury room and took every seat except for the one at the head of the table. I stopped in the doorway, and thought, oh no, just as one of the other jurors said "All in favor of juror number twelve serving as foreman?"

So at least in that case, our system of justice had the game of "not it" as its basis.

That particular domestic violence trial ended with a hung jury, ten guilty to two not guilty, and the juror who had nominated me for foreman chirped "See you at the murder trial!" to the two holdouts.
posted by infinitewindow at 1:13 PM on December 4, 2015 [40 favorites]

This is surprisingly -- and depressingly-- similar to my own experience as a juror.
posted by drinkcoffee at 1:14 PM on December 4, 2015 [1 favorite]

Anthony is angry at the direction taken by our deliberations, which he believes should proceed with the inexorable logic of a mathematical proof. He surreptitiously writes a jury note, which the judge told us should be delivered with the whole jury’s consent. He privately asks the foreman to sign it. Before he’s able to deliver it, I stop him. The note accuses another juror of improperly insisting on “baseless speculation.” It’s a coded attempt to eliminate Henry from the jury. To the rest of the jury’s credit, no one allows it to reach the judge. The foreman admits she didn’t know what it said when she signed it.

I’m struck by the incident’s resonance. It’s a conspiracy that hinges on a person signing a form she didn’t read.

Goddamn. "Yeah, but it's not a conspiracy, because we're trying to do the right thing!"
posted by disconnect at 1:16 PM on December 4, 2015 [8 favorites]

This is a good read, though I think it's regrettable how people's feelings on juror nullification tends to depend on what precisely is being nullified and why.
posted by corb at 1:16 PM on December 4, 2015

I just can't get over the total capriciousness of the entire process.
posted by Sphinx at 1:18 PM on December 4, 2015 [4 favorites]

so the other "not guilty" was white, and called Henry? for a while i thought Henry was referring to Emilio who have been compared to Henry Fonda (until the para which describes Emilio's attitude to Henry). since the names are presumably changed anyway, why use "Henry"? or maybe i suck at reading.

anyway, other than that, excellent. thanks.
posted by andrewcooke at 1:20 PM on December 4, 2015 [2 favorites]

I've been on two serious criminal cases in LA, and I've never seen anyone play solitaire or anything like that. I think this is "enhanced" if not actual fiction.
posted by Ideefixe at 1:20 PM on December 4, 2015 [5 favorites]

since the names are presumably changed anyway, why use "Henry"?

See the pull quote: I think of him as Henry Fonda in 12 Angry Men. We will share this role.

Emilio = Emilio Estevez's character in The Breakfast Club
posted by roomthreeseventeen at 1:21 PM on December 4, 2015 [8 favorites]

how people's feelings on juror nullification tends to depend on what precisely is being nullified and why

In my professional and personal experience, this is not remotely accurate. People often disapprove of the underlying reasons why a particular jury chose to practice nullification but continue to believe strongly that jury nullification is a crucial tool in our justice system that every juror should be informed about.
posted by sallybrown at 1:22 PM on December 4, 2015 [12 favorites]

The one time I was on a jury (it was an eviction, which can get you a jury trial in San Francisco, since an eviction is a very big deal with rent control) we took two minutes to deliberate. By mutual consensus, we agreed that five minutes felt like the minimum respectful interval before we could go back in with a verdict.
posted by zachlipton at 1:24 PM on December 4, 2015

"Henry" is the Latino man in the pull quote at the top of this page.

This was fascinating.
As someone who believes in fairness and logic, but also distrusts the police somewhat, how do people feel about lying during voir dire to try to get onto a jury to try and give defendants a fair trial?
posted by Potomac Avenue at 1:25 PM on December 4, 2015 [10 favorites]

Speaking for myself, if you can't be trusted to tell the truth when you've sworn that you'll tell the truth I don't want you on a jury.
posted by Justinian at 1:27 PM on December 4, 2015 [7 favorites]

Emilio = Emilio Estevez's character in The Breakfast Club

ah, ok, i get it now. thanks.
posted by andrewcooke at 1:27 PM on December 4, 2015

I feel like it is possible for people who are uncomfortable with lying during the voir dire process to produce effects functionally equivalent to lying by just being really, really, really careful about what they say and diligently leaving out details that prosecutors wouldn't like. That said, lawyers are better at the (very important, very valuable) tricky language game than almost anyone else is, and prosecutors are as a rule both clever and evil, so just directly lying may in many cases be a preferable tactic.

Never tell anyone you've lied, of course.
posted by You Can't Tip a Buick at 1:29 PM on December 4, 2015 [12 favorites]

A juror who knows what jury nullification is

Poison that undermines democracy, reduces a trial to mob rule, and strips defendants of every protection they should have?

It's always distressing to have these wannabe-lawyer types who have seen Law & Order in a jury. Not only does he get basic concepts wrong (judges are not " glorified fact-checker(s)", it's the jury that is the finder of fact), but there's a reason jurors are ordered not to do their own research and talk to people about the case. MeFi probably agrees with the author's opinions and approves of his reading, but a juror could just as well go home and do "research" at his favorite site Stormfront, or get caught up in rumors or wild theories flying around. Think of Serial and how much craziness grew up around that case, and the intensity of feeling some people developed over the theories they held no matter how baseless.

This is the same problem with jury nullification: everyone imagines it's getting a pothead off of a possession charge, and not a racist jury letting a guy who bombed a black church go. We're supposed to try, as much as possible, to reduce the influence of personal juror bias and having them make their decision based on the facts presented and the law, not to toss all that out of the window and let their whims control.

I'm also always a little suspicious of these kinds of stories where the narrator is a Holden Caulfield who, uniquely and alone, sees through the bullshit despite being surrounded by buffoons and cretins that he must patiently endure.
posted by Sangermaine at 1:29 PM on December 4, 2015 [42 favorites]

how do people feel about lying during voir dire to try to get onto a jury to try and give defendants a fair trial?

I consider it a form of civil disobedience. You would be breaking the law and so you assume that risk. In a way, you're free riding on the fact that the overwhelming majority of people follow the law in this situation, which is necessary for our justice system to function. Without their honesty, the wheels would come off the whole thing (jurors could be regularly bought off, for example). Where you fall on a moral scale depends on your underlying motivation.
posted by sallybrown at 1:30 PM on December 4, 2015 [5 favorites]

So, this is pretty familiar. I served on a jury almost exactly two years ago. The case was just a low-level drug thing -- an alleged dimebag of crack. The jury experience was pretty depressing.

The trial itself really only lasted one day-- we had jury selection late the first day, opening arguments and evidentiary proceedings the second day, and then closing arguments the third. All in all we were probably in the actual courtroom for 6 hours (aside from the tediously long selection process). Deliberation went for 12 hours.

At first we were pretty evenly split. Unlike what you see in films or tv shows, trials are not very dramatic. In fact, this one was even a little confusing. The prosecution spent a great deal of time establishing what the defendant's car looks like, I guess to prove that the guy they arrested was the same one sitting in front of us, but there didn't seem to be a lot of reason to think otherwise. There wasn't a lot of evidence. The defendant allegedly sold a dimebag to an undercover cop in a corner store, then walked out of the store, drove two blocks, and was arrested. There was no surveillance footage, the baggie (which he'd allegedly produced from his mouth) hadn't been DNA tested, the cops never recovered the marked $10 bill. All of the evidence wound up being, really, the testimony of the undercover cop.

But at first we were split in the jury room. I no longer remember who was on which side at the beginning. I do remember that one juror, an older black woman in her 50s or 60s, specifically said that she didn't care about the evidence, the defendant was obviously guilty because that's just how all those young men are down there on the South Side of Chicago. Another juror, a white woman in her early 20s, waited until the second hour of deliberation to admit that she'd been confused by some of the testimony because she didn't what what the word 'cannabis' means.

We had laminated photos of the corner store which we passed around the table several times. We had the plastic baggie, still with crack in it, which we each looked at at least once, I guess just because when was the last time you saw a dimebag of crack? We spent a good portion of deliberation just trying to piece together the sequence of events according to the prosecution, looking at the store photos and trying to remember whether the transaction occurred at the front or the back of the store. There was a sandwich counter in the store. Where was it? Why can't you see it in the photos? Oh, there it is.

One of the jurors recalled something specific that the judge said, that you should not consider the testimony of law enforcement officers to be more forthright than any other testimony simply because of their profession. She described this as a 'hint' that the judge was trying to give us so we would know which was to decide.

I was on the side of acquittal, because the only evidence that we really had, like I said, was the word of the undercover cop. In fact, a lot of the evidence seemed to contradict her story -- one of the other arresting officers described the person who sold the crack as wearing 'blue jeans' in his police report; the defendant had been arrested wearing black pants. The cop in question told us from the witness stand that 'blue jeans' is a colloquialism that he uses to describe anything made out of denim.

Over the course of twelve hours, people went back and forth on their decision, we talked a lot, we cast secret ballots, we did shows of hands. There was one other juror who sided with me the whole time, who helped me argue with everyone else that the prosecution's story hadn't been proven. After ten hours, he changed his mind, finally, and sided with the Guilty crowd. He looked me in the eyes and said, referring to the undercover cop, 'I just don't know why she would lie.'

So the last two hours were me against the room. As is discussed in the linked article, I considered changing my vote just so we could all go home. I mentioned the idea out loud, nearly in tears. To their credit, the other jurors refused to let me.

Eventually we marched back into the courtroom as a hung jury. The judge brings the prosecution and the defense back in -- including the defendant -- and then asks each jury member, one at a time, whether they think that the jury would come to a decision if they had more time. One by one, each of us said, 'No, your honor.' I felt the greatest knot in my stomach I've ever felt, like someone would point at me and say 'He's the one! We all agree!'

I watched the defendant. His face remained as unreadable as it had through the whole trial.

Afterward, when we were let back into the jury room to gather our things, one of the jury members said, 'Did you see the prosecutor's face when we all said "No, your honor'? He just got madder and madder! That made the whole thing worth it.'

I hadn't looked at him, but I can picture that.

We shuffled out through the courtroom and the defense attorney, like the prosecutor in the linked article, wanted to know what the split had been. We told him it was 11-1. He wanted to know why the holdout held out; I gave him my card and we are now, still, two years later, corresponding. He wanted to know if we could tell that his client was wearing prison garb under his nice courtroom clothes. He'd been in lockup for a year already for this case; it also turns out that he'd spent several years in prison already for a murder that he didn't commit, and had only been on the outside for a brief amount of time before he got picked up for this thing.

One of the other jury members works at an executive club in downtown Chicago, and he invited all of us on the jury out for drinks there over the weekend. Everyone said they'd go-- I don't know if anyone did. I didn't go. I walked alone to the bus stop and it was dark outside, and cold.
posted by shakespeherian at 1:31 PM on December 4, 2015 [233 favorites]

(But as a rule, if you lie during voir dire to get out of jury duty solely because you think it's boring, I think you suck.)
posted by sallybrown at 1:32 PM on December 4, 2015 [15 favorites]

Without their honesty, the wheels would come off the whole thing (jurors could be regularly bought off, for example).

Surely if a juror has been bought off they will lie regardless of the honesty we others may exhibit? Or have I misunderstood your point?
posted by howfar at 1:33 PM on December 4, 2015 [1 favorite]

I'm also always a little suspicious of these kinds of stories where the narrator is a Holden Caulfield who, uniquely and alone, sees through the bullshit despite being surrounded by buffoons and cretins that he must patiently endure.

Uniquely and alone? Did you read the piece or even the pull quote at the top of this page?
posted by theodolite at 1:35 PM on December 4, 2015 [10 favorites]

I meant that if lying during voir dire became more and more accepted as a social norm, it would lead to increasing numbers of people feeling comfortable lying, making it easier to buy off jurors.
posted by sallybrown at 1:38 PM on December 4, 2015

Uniquely and alone? Did you read the piece or even the pull quote at the top of this page?

Yes and yes. It's a piece filled with sardonic observations about all of the other jurors, ranging from them being overly slick former jocks, loud and shrill, overly argumentative, Engineer's Disease types, or sheep who blindly trust law enforcement, but in any case all of them with their own ridiculous flaws unlike the narrator who thinks deeply and carefully and has done all sorts of research.
posted by Sangermaine at 1:38 PM on December 4, 2015 [9 favorites]

The time I served on a jury, one guy appointed himself foreman, said, "I think they've got a pretty good case here, so are we going to vote to convict?" and we staged a rebellion. Took some hours of arguing and discussion to convict on one minor count and none of the others. He was pretty annoyed.
posted by Peach at 1:41 PM on December 4, 2015 [3 favorites]

"mob rule" is one of those terms deployed to shut down conversation rather than grant any insight into the system under discussion. It's sort of like the "clobber verses" that white American fundamentalist protestants use to shut down analysis of the Bible.

I would (predictably) argue instead that juries are best understood as the last relic of Greek stochastic democracy, wherein officeholders were selected by lot from among all citizens rather than chosen through electoral means. Athenian democracy wasn't perfect, or even very good — most notably it was predicated on the idea that women and workers were objects rather than people — but this is one thing that I think they got right. Stochastic democracy tends to select officeholders that resemble the average citizen of the country, which means that by their social position the people selected through random means will tend to give verdicts, and write laws, that reflect the interests of the average people. Systems that aim for something like meritocracy rather than democracy will tend to result in verdicts and laws that benefit elites over the average person — I hold that this is bad, because elites tend to have power over average people anyway. I believe (and your mileage may and likely will vary) that even though the decisions made by elites may tend to be more technically accurate or whatever than decisions made by a random selection of the populace, the positive effects of this technical accuracy are outpaced by the negative effects of the tendency for elites to rule in their own favor — sometimes without even noticing it.
posted by You Can't Tip a Buick at 1:42 PM on December 4, 2015 [35 favorites]

I am one of two or three dozen people who have seen videos of actual juror deliberations in actual trials in the US -- I was a research assistant on the only research project that's ever been given permission to record juries, in Arizona. I watched about 30, and helped transcribe and code them. For the most part juries took their jobs refreshingly seriously and tried very hard to do it right. AMA.
posted by Eyebrows McGee at 1:44 PM on December 4, 2015 [58 favorites]

Eyebrows McGee,

Were they aware they were being recorded?
posted by mattbcoset at 1:48 PM on December 4, 2015 [5 favorites]

I consider myself lucky to be in a line of work where no lawyer is going to want me on the jury. It sounds awful.

I'm also always a little suspicious of these kinds of stories where the narrator is a Holden Caulfield who, uniquely and alone, sees through the bullshit despite being surrounded by buffoons and cretins that he must patiently endure.

I didn't really see this that way. All kinds of people are out there and that a couple of people on a jury at some point just want to go home, or have some pretty flawed reasoning, is not that hard to believe. And a lot of the jurors were portrayed as neither of those things, rather they just came to a different conclusion and got frustrated when it came so close to consensus.
posted by Hoopo at 1:49 PM on December 4, 2015 [2 favorites]

"mob rule" is one of those terms deployed to shut down conversation rather than grant any insight into the system under discussion.

"Mob rule" meaning, as I said above, letting personal juror biases rule. There are all sorts of rules and protections put around juries to prevent as much as possible juror bias and tainting, and trying to get them to consider only the facts and arguments presented in the trial.

You don't want jurors ruling on personal feelings like "all black people are criminals", "if the defendant is on trial they must be guilty", "cops can always be trusted because they're the good guys", "the defendant looks like a criminal", etc.

The system very often fails in this but that's a very bad thing. We should be working as hard as we can to enforce the rules and fix the system to ensure that jurors rule properly, not tell jurors to go ahead and let their biases rule the day.
posted by Sangermaine at 1:49 PM on December 4, 2015 [1 favorite]

A juror who knows what jury nullification is

Poison that undermines democracy,

"If by whiskey"

If by jury nullification, you mean unaccountable bodies conspiring to undermine the rule of law, all-white juries returning not-guilty verdicts to men who murdered African Americans in the Civil Rights era, and people violating sworn oaths in service of their own whims, then of course I am against it.

If by jury nullification, you mean the last defense of citizens against unjust laws, the final check on prosecutorial powers, and the most effective means of defense against the carceral state, well, then...
posted by the man of twists and turns at 1:52 PM on December 4, 2015 [31 favorites]

"Were they aware they were being recorded?"

Oh yes, although they mostly seem to forget about it by the second day. We saw some very amusing behavior (nose picking, discussion of bailiff's hotness) and a few relatively appalling things.
posted by Eyebrows McGee at 1:53 PM on December 4, 2015 [9 favorites]

This is the same problem with jury nullification: everyone imagines it's getting a pothead off of a possession charge, and not a racist jury letting a guy who bombed a black church go.

Ah but there are a ton more jury trials involving potheads with possession charges than there are with suspects who have bombed a black church. I also would guess that in areas in which a jury is radical enough to employ nullification to refuse to convict someone of such a serious crime (arson, murder), the local prosecutor is unlikely to reach the jury trial stage to begin with. There were obviously some very high profile cases of this over the years, but I think there's a lot more mundane nullification that goes on without making news.

What concerns me more is the inequality between defendants as a result of money and/or highly skilled lawyering (which often go hand in hand) that results in some defendants getting off and other defendants convicted when the evidence is about the same in both cases. But in that situation, the jury is persuaded they are following the law, not intentionally defying it.
posted by sallybrown at 1:53 PM on December 4, 2015 [4 favorites]

not tell jurors to go ahead and let their biases rule the day

The problem is that our judicial system is fully reliant on human decision making, and thus bias always has and always will rule the day. Trying to iron it out of the system leads to the inequality popping up in different ways (this is most obvious in the death penalty context). The story provides a good example of this in voir dire: the prosecutor attempts to weed out jurors who have had bad personal interactions with the police, an attempt to reduce bias. But the resulting jury is then largely made up of people who lack experience with police acting in unfair or dishonest ways, and thus don't really find it realistic that the officer testifying may be lying.
posted by sallybrown at 1:59 PM on December 4, 2015 [23 favorites]

First time I sat on a jury, it was for a burglary; the defendant was pleading not guilty.

Couple things to remember: the homeowner was one of those cautious people who records serial numbers/puts identifying marks on his stuff, and he'd only recently moved in and hadn't yet unpacked everything. The defendant --- swearing over and over it wasn't him, they'd got the wrong guy --- couldn't explain why, if he wasn't guilty, why were his fingerprints all over the broken window, as well as other things in this stranger's house? Why is there a TV in your living room with his serial number? And for crying out loud, why is HIS family photo album in a box (marked with his name!) in YOUR closet?

I admit we spent a bare half hour in the jury room before returning with a guilty verdict, but the whole case was so open & shut it was ridiculous.
posted by easily confused at 2:01 PM on December 4, 2015 [7 favorites]

"Mob rule" meaning, as I said above, letting personal juror biases rule. There are all sorts of rules and protections put around juries to prevent as much as possible juror bias and tainting, and trying to get them to consider only the facts and arguments presented in the trial.

And yet, it is the jurors themselves who, in the final analysis, decide what the law is, rather than the law determining what the jurors must do.

I don't think it's either possible or good to pretend that we can successfully demand that jurors not be actual people with differing experiences of the world, different positions in the world, and as a result different interpretations of the world (or different "biases," as you have it). In fact, I think that the fact that jurors have differing biases is a strength of the system, rather than a flaw in it.

There exist controls under stochastic democracy (as was practiced in Athens and as in practiced in American jury selection) to keep office-holders who are significantly worse than average from doing much damage — for example, we have the concept of presumption of innocence, and the maxim that convictions can only happen if all jurors agree. This helps keep the scattered white supremacist on juries from being able to use their office to murder Black people under the color of law.

Of course, there certainly are cases where the entire community is white supremacist, and stochastic selection (even tempered by consensus decisionmaking among those selected) will tend to yield white supremacist results regardless of what the law says. The thing is, a genuinely white supremacist community can find effective ways to subvert non-white-supremacist law no matter what the official rules are. On the whole, writing laws that make communities significantly better than they actually are is like building a sandcastle below the tide line while the tide is coming in.

I mean the crux of the matter might just be that you're a legal idealist — you think that abstract laws actually govern practice — whereas I'm a legal materialist — I think that the law as it really exists is the law as it is practiced, with written law being only part of the process rather than a transcendental ideal governing it.
posted by You Can't Tip a Buick at 2:01 PM on December 4, 2015 [23 favorites]

When defense attorneys still have to ask, with a straight face, "How much justice can you afford?" then we still have a problem. sallybrown is right: we are not all equal under the law.

Given that, I'm fine with self-appointed bleeding heart nullifiers out there fighting that fight.

That's a question that I've had to answer personally, by the way. But I'm white and well-employed, so the justice I could afford was Case Dismissed. If I was black and poor, I probably would've had to take a plea.

Mind you, this was on a charge that had passed the statute of limitations. But even making that simple, basic argument cost me $1200.
posted by turntraitor at 2:02 PM on December 4, 2015 [6 favorites]

Back when I worked as a medical malpractice legal assistant, I was excluded from a jury because my boss only took plaintiff's cases, and the case was a wrongful death for a missed breast cancer diagnosis. I felt badly for being excluded because I truly believed I could be impartial, and I was really uniquely qualified to understand the testimony, something I'm sure all of the jurors they picked probably slept through.
posted by roomthreeseventeen at 2:04 PM on December 4, 2015 [5 favorites]

and a few relatively appalling things

come on now....
posted by andrewcooke at 2:04 PM on December 4, 2015 [3 favorites]

A juror who knows what jury nullification is

Poison that undermines democracy, reduces a trial to mob rule, and strips defendants of every protection they should have?


This is nonsense. A jury can only acquit by nullification, not convict, so there is no possible way for it to strip defendants of protections.
posted by grobstein at 2:10 PM on December 4, 2015 [19 favorites]

Eyebrows, do you recall demographic information about the juries studied? I realize 30 is a pretty small sample, but I wonder how gender/race breakdowns compare with the population at large. And what, if any, correspondence there was between demographics and verdicts.

I've never served on a jury but a friend of mine who's a litigator once assured me that I very probably never will. I can't remember what his reasoning was, but some combination of character traits and educational background factored into it. I'll have to ask next time I see him.
posted by axiom at 2:13 PM on December 4, 2015

Eyebrows, do you recall demographic information about the juries studied? I realize 30 is a pretty small sample, but I wonder how gender/race breakdowns compare with the population at large. And what, if any, correspondence there was between demographics and verdicts.

The demographics (and verdicts) of juries are not secret. Only the deliberations are. So there's a huge amount of public research on jury demographics, and its relationship with verdicts.
posted by grobstein at 2:18 PM on December 4, 2015 [2 favorites]

I mean that said, people who dismiss democracy as mob rule have a wealth of extremely smart philosophical writing to draw on. Most notably, Plato wrote extensively on the evils of democracy, and although Aristotle was a little bit more moderate than his teacher, he made many strong arguments against democracy as well. There is much less pro-democracy philosophy than there is anti-democracy philosophy, and most pro-democracy philosophy is relatively recent and as such has a much weaker historical pedigree. I mean, I almost want to say that Marx was the first major genuinely pro-democracy Western philosopher, though probably that title goes to someone from the Scottish Enlightenment or somesuch.

oh god now I'm convinced that there were major pro-democracy philosophers in the classical world, but that I'm just too much of an airhead to remember who they were...
posted by You Can't Tip a Buick at 2:18 PM on December 4, 2015 [3 favorites]

I always get kicked out of juries for the social worker/military combination. Defense attorneys assume military means I'll trust the cops, and the prosecutor assumes social work means I'm a bleeding heart. It actually kind of bothers me that I'll never get to serve my civic duty, but there you have it.
posted by corb at 2:19 PM on December 4, 2015 [5 favorites]

Your expertise presented another difficulty, roomthreeseventeen, and that is that much of the testimony would likely have involved what is and what is not standard procedure. You would have provided your colleagues on the panel with additional, unchallenged, testimony as to medically standard practices.

At least, that's what I tell myself after watching a prosecutor eliminate all the engineers and science types from a panel I was chosen for, as an alternate, for a trial involving lots of DNA evidence.
posted by notyou at 2:20 PM on December 4, 2015 [8 favorites]

You would have provided your colleagues on the panel with additional, unchallenged, testimony as to medically standard practices.

I guess that's true, although one would think that would be extremely helpful information in the name of justice, although I get it.
posted by roomthreeseventeen at 2:22 PM on December 4, 2015 [3 favorites]

Eyebrows McGee: a few relatively appalling things

Yeah, you can't just drop this and not elaborate. I already feel like crap after reading the OP, help me wallow a bit more.
posted by biogeo at 2:40 PM on December 4, 2015 [1 favorite]

sallybrown: (But as a rule, if you lie during voir dire to get out of jury duty solely because you think it's boring, I think you suck.)

Agreed, but maybe it's better for the course of justice that these people are self-excluding?
posted by biogeo at 2:43 PM on December 4, 2015

I'd argue that Socrates' criticism of democracy was actually pro-democracy rather than anti, but I'm a weird Socratic truther who also thinks he was a secret monotheist so my argument is sus
posted by Potomac Avenue at 2:43 PM on December 4, 2015 [2 favorites]

Eyebrows MG: Did you see any times when the consensus swung wildly? What was more likely to get that to happen--calm reasonable arguments or impassioned pleas?
posted by Potomac Avenue at 2:45 PM on December 4, 2015 [1 favorite]

> I'd argue that Socrates' criticism of democracy was actually pro-democracy rather than anti, but I'm a weird Socratic truther who also thinks he was a secret monotheist so my argument is sus

sigh... I should read more of the dialogues/read the dialogues more closely. Like, I've read the Gorgias and the Timaeus to death, but with everything else (even the Republic) I tend to rely on other peoples' interpretations.

and um on a podcast series run by a giraffe-obsessed maniac with an imaginary sibling, but I don't admit that out loud too often.
posted by You Can't Tip a Buick at 2:59 PM on December 4, 2015 [2 favorites]

also, just throwing this out there, "Socrates Trutherism" would make a great name for a sockpuppet.
posted by You Can't Tip a Buick at 3:00 PM on December 4, 2015 [1 favorite]

The Dialogues are works of art you owe it to yourself to read em first hand yo.

(Alcibiades Did Thermopylae)
posted by Potomac Avenue at 3:04 PM on December 4, 2015 [4 favorites]

okay I am going to have to close this tab now, because I for reals lol every time I flip back over here and see "Alcibiades Did Thermopylae." People in the coffee shop are starting to give me looks.
posted by You Can't Tip a Buick at 3:06 PM on December 4, 2015 [2 favorites]

I sat on a jury approximately 15 years ago. Overall it was an unpleasant experience, but that was mostly because of the parade of people lying their asses off to the judge and the attorneys to get out of jury duty. The jury that was ultimately seated seemed to take their roles seriously, which was good, although the case itself was filled with bullshit.

The charge was car burglary, and as in the FPP the Assistant DA responsible for the prosecution was young, sharp, and very well prepared, while the public defender was older, somewhat unprepared, and ineffective. The only live testimony in the case was from a cop that had arrested the defendant as "a person of interest" who matched the general description of the perp and who had the misfortune to a) be a Mexican national in the country illegally, b) have some money in his pockets that could have come from the victim's car (less than $100), and c) could not produce a satisfactory alibi explaining why he and his brother were walking across the parking lot where the crime occurred shortly after the crime was reported, when he was picked up. (The brother was not present at the trial nor did we hear any sworn testimony from him.)

In addition to confirming the identify of the accused, the Assistant DA also had the same cop take the stand as an "expert witness" to explain some very sketchy, circumstantial physical evidence, testifying that a key found in the defendant's possession was responsible for producing scratch marks on the victim's car door lock that were a by-product of his act of breaking in, blah blah blah. I think a good defense attorney could have had this dismissed, or at least offered an objection about the testimony as it seemed like a real stretch, but that didn't happen, so the testimony was never refuted. The defendant did not offer much of a defense at all, really, apart from saying though an interpreter that it wasn't him and he didn't do it.

Our jury was a mix of ethnicities -- six whites, three Filipinos, one African American woman, and two jurors with Latin American (but not Mexican) backgrounds, IIRC. One of these latter two jurors quickly became a very vocal advocate for conviction, and I definitely think this put the other jurors more at ease with the idea of finding the defendant guilty: The defendant speaks Spanish, this juror speaks Spanish and he also juror thinks the defendant is guilty, ergo, the defendant must be guilty and it's OK for me as a non-Spanish speaker to convict him.

We discussed the case for a couple of hours and eventually agreed, unanimously, that the defendant was guilty. Thinking back on it now, I believe if the defendant had had better and more aggressive legal help he might have been acquitted, or at least achieved a hung jury. Similarly, he might have been acquitted if someone had testified on his behalf or spoken in support of his alibi. But neither of those happened, and we found him guilty as charged.

In the end, although I tried to be fair and open minded as a juror, I was definitely swayed by the arguments made by the aforementioned juror. I can look back now and say, "yeah, I gave a lot more confidence to the arguments of a fellow Spanish speaker than I did to my own questions about how tenuously this 'evidence' linked the defendant to the crime he was accused of committing, and that was wrong." I really don't know if I would make the same vote for conviction today as I did then. I am glad that the stakes were "relatively" low -- this was no murder trial, and I think the defendant was looking at a max of a year in the county jail, maybe less.

So, I feel the FPP had a lot of truth in it, and it was pretty consistent with my own experience as a juror. Take all of that for whatever it might be worth.
posted by mosk at 3:07 PM on December 4, 2015 [7 favorites]

Poison that undermines democracy, reduces a trial to mob rule, and strips defendants of every protection they should have?

Here, here. Argue for the right to "nullify" juries all you want, but don't kid yourself into believing that you're any different from the next sovereign citizen who believes the same thing.
posted by octobersurprise at 3:18 PM on December 4, 2015

I mean, you might as well go full sovcit and start your own "common law grand jury."
posted by octobersurprise at 3:23 PM on December 4, 2015

The Dialogues are works of art you owe it to yourself to read em first hand yo.

I'm just sayin, if I were Bill or Ted, I would have skipped that stop in Ancient Greece. After reading the Dialogues I could think of nothing I'd enjoy less than getting into a conversation with that guy.
posted by Hoopo at 3:37 PM on December 4, 2015 [3 favorites]

I just deleted a long write-up of the details of my jury experience--it really doesn't need to be inflicted on anyone else. Suffice it to say it was highly unpleasant (child pornography case), and I was a lone dissenter for a while--I then either caved to the pressure or was convinced that I was holding "reasonable doubt" to a higher standard than it should be, take your pick.
posted by Four Ds at 3:39 PM on December 4, 2015 [2 favorites]

The jury I was a part of was for a civil case. The older white males on the jury almost uniformly spoke down to me and dismissed questions I raised. We were sent to deliberate mid afternoon on a Friday. There were a few other people who felt the plaintiff had a legitimate complaint, but unfortunately they all capitulated in favor of leaving early for the weekend and not wanting to come back on Monday. As a civil case, it did not need to be unanimous and so they got their way. After the trial ended, the jury was allowed to opt into meeting the lawyers. As a departed I overheard the plaintiffs lawyer bring up a bit of rather damning evidence and my fellow jury members admit they had forgotten about that. It was disheartening and I still feel guilty wondering what the outcome might have been if I had tried a bit harder or been better at communicating or been able to stand up to people talking down to me.
posted by HMSSM at 3:50 PM on December 4, 2015 [9 favorites]

He looked me in the eyes and said, referring to the undercover cop, 'I just don't know why she would lie.'

It's so baffling to me that people can be so naive.

This is nonsense. A jury can only acquit by nullification,

This seems to be technically true in the sense that nullifying a law by ignoring it can only produce acquittals, but a jury can do something pretty similar when they all decide that sure, the prosecution's case was lousy but the defendant sure did look pretty shifty and is probably guilty of something, so let's all just say guilty anyway. Not technically nullification, but in the same spirit.
posted by kenko at 3:59 PM on December 4, 2015

Years ago, Mr. rekrap was jury foreman in a death penalty case of some notoriety. After the guilty verdict, there was the sentencing phase with harrowing testimony from victims and relatives of victims. It was emotionally devastating for him, maybe a even to the extent of something akin to PTSD. In the ensuing years, his view on the death penalty has changed, so he also lives with the knowledge that the jury delivered the ultimate sentence that he now believes should be abolished.

I also have jury experience and it was an honor to serve with citizens who took it seriously and did their best to be smart, fair and just. Sitting on a jury - if you do it right - is service to the country no less than military service, albeit usually not as long a commitment. In my husband's case, I wish his service had come with benefits like a couple of years of counseling.
posted by rekrap at 4:01 PM on December 4, 2015 [9 favorites]

The appalling stuff was a couple of incidents of racism -- pretty quickly shut down by other jurors -- and a guy so determined to get out of jury duty that even after seated he kept behaving in insane ways on purpose to disrupt the trial ... So the judge removed him from the jury as requested, and put him in jail for contempt for the duration of the trial. (Which was pretty great.)

This was Arizona, so the jurors were pretty conscious of the possibility of racial bias and were pretty diligent and up front about interrogating it in the jury, and also in witnesses.

Mostly we saw calm and logical argumentation -- people got annoyed with each other, but generally not shouty. It was interesting to watch strong personalities persuade or lose the room.

The bailiff was medium-hot, the all-female jury was bored. They also passed moisturizer around a lot. It was amusing.

We didn't see nearly as much racial bias as expected, but we did learn that juries HATE teenagers. They just can't believe that a teenager isn't SOMEHOW at fault for their own misfortune. They also were relatively nasty about obese plaintiffs, and did not believe in back injuries. They were also VERY ALERT to dickhead lawyer behavior and it affected their attitude towards the client when the lawyer was a jerk, and often commented on lawyers' ties. They also always noticed when the judge fell asleep during boring testimony. They were very alert to the judge's attitude in general, much more than I would have thought. It was like they identified themselves as being on the judge's "team" and so really wanted cues from him on how to react.
posted by Eyebrows McGee at 4:03 PM on December 4, 2015 [42 favorites]

You'll never prove a thing, copper! I'm just a part time electrician…I... I... I... bad is good, baby! Down with government!
posted by You Can't Tip a Buick at 4:05 PM on December 4, 2015 [2 favorites]

The defendant --- swearing over and over it wasn't him, they'd got the wrong guy -- couldn't explain why, if he wasn't guilty,

The 5th and 6th Amendments. You're doing them wrong.

The defendant did not offer much of a defense at all, really, apart from saying though an interpreter that it wasn't him and he didn't do it.

Samesies.
posted by likeatoaster at 4:05 PM on December 4, 2015 [7 favorites]

This seems to be technically true in the sense that nullifying a law by ignoring it can only produce acquittals, but a jury can do something pretty similar when they all decide that sure, the prosecution's case was lousy but the defendant sure did look pretty shifty and is probably guilty of something, so let's all just say guilty anyway. Not technically nullification, but in the same spirit.

I find these not remotely similar -- not the same technically, not the same in spirit. There is a wide gulf of difference between refusing to convict someone you believe is technically guilty of violating a law you disagree with, and choosing to convict someone you believe is technically innocent of a law you have no issue with.
posted by sallybrown at 4:12 PM on December 4, 2015 [6 favorites]

The 5th and 6th Amendments. You're doing them wrong.

Who is? I'm lost
posted by Hoopo at 4:29 PM on December 4, 2015

The lawyers should get to pick two teams of six jurors each from those available, like in gym. Let them deliberate seperately. Majority rules, and if both teams agree you convict or acquit.

Seriously though, while it is frightening to think how precarious and easily biased the process is, it does at the same time seem to be one of the less precarious and easily biased parts of the whole system.

I was quite lucky in that my jury experience was pretty pleasant, and I'd actually look forward to doing it again. Though we did get all set up for one case about some intimidation charges, and none of the witnesses showed up.
posted by lucidium at 4:36 PM on December 4, 2015 [1 favorite]

The accused have the right to remain silent and don't have to explain anything (5th); and the defense doesn't have a burden or an obligation to present evidence disproving guilt (5th and 6th). The presumption of innocence is a hard thing to wrap one's mind around, but deeply necessary for ethical criminal justice administration. It's hard enough to go to trial as it is, with people frequently sucking it up and spending a year or more in custody awaiting trial, without folks sitting on juries and refusing to hold the prosecution to their obligation to prove everything beyond a reasonable doubt in the absence of affirmative evidence presented by the defense.
posted by likeatoaster at 4:38 PM on December 4, 2015 [22 favorites]

The best law professor I had served on a few juries (they don't necessarily exclude law professors, apparently), and he talked at length about it. He was eviscaratingly cynical about the process based on his experiences. "It's a wonder any justice happens at all," I think his words were.
posted by naju at 4:43 PM on December 4, 2015 [2 favorites]

The accused have the right to remain silent and don't have to explain anything (5th); and the defense doesn't have a burden or an obligation to present evidence disproving guilt (6th)

Sure, but given the evidence we're told was presented saying he did it, such as his fingerprints on the broken window and the stolen goods in his house, and all he could put forward was "nuh-uh wasn't me", I find it hard to believe a jury has to accept "well he says someone else did it therefore I guess we have to let him walk."
posted by Hoopo at 4:49 PM on December 4, 2015 [2 favorites]

Well this is all very worrisome since I have a jury summons for Monday morning...
posted by jim in austin at 4:54 PM on December 4, 2015

This is nonsense. A jury can only acquit by nullification,

This seems to be technically true in the sense that nullifying a law by ignoring it can only produce acquittals, but a jury can do something pretty similar when they all decide that sure, the prosecution's case was lousy but the defendant sure did look pretty shifty and is probably guilty of something, so let's all just say guilty anyway. Not technically nullification, but in the same spirit.

Right, so, those behaviors have something in common. They resemble each other in some way.

But it doesn't follow that a defense of nullification is thereby also a defense of voting to convict in the absence of evidence. It doesn't follow that if someone describes themselves as in favor of nullification, they must also be in favor of conviction in the absence of evidence.

People seem to be suggesting that there's no principled way to be in favor of nullification without being in favor of conviction in the absence of evidence. But this is ahistorical as well as deeply unimaginative.

The asymmetry between conviction and acquittal is not some arbitrary, unprincipled dodge on the part of nullification defenders. It's an asymmetry that's built into our system at the foundations. The traditional right of the jury to nullify is a part of this larger pattern of asymmetry. (More.)

The technocratic, modern notion of jury trial is that questions of fact must be submitted to a jury, but this technical duty exhausts the role of the jury (ignore sentences and remedies for now). On this view, the jury is more like a survey sample than a democratic institution. But the traditional notion of jury trial may be closer to this: that the state cannot mete out punishment without obtaining the consent of the people, represented by the jury panel. Nullification advocates call back to this traditional notion, and argue that the 5th and 6th Amendments in fact guarantee this safeguard. Courts as far as I know do not accept this argument, and in fact nullification may result in contempt proceedings, and advocates are not allowed to ask juries to nullify. In fact, even outside the courtroom, arguing in favor of nullifying can land you in jail(!) (not an isolated incident).

But the current state of the justice system is not so excellent that every facet of it is above reproach, I think. Furthermore, judging from our prison population, it doesn't seem right to say there are too few convictions (that asymmetry again). Against the backdrop of the modern criminal justice system, the old view of the jury trial, and the doctrine of jury nullification, look pretty attractive. It's hard to say we would be worse off if more juries felt they had the right to rule on the broader rightness or wrongness of a case, rather than just the fact questions.

Are we so terrified of the moral judgment of our peers that we would rather delegate all moral judgment to prosecutors? If you think that, you should be prepared to say what you think's so great about prosecutors.
posted by grobstein at 4:54 PM on December 4, 2015 [17 favorites]

okay, so, I totally get the sovcit critique. of jury nullification, but I believe it misses the mark in a very important way. Sovereign Citizens have an excess (an extreme excess) of philosophical idealism. They are so idealistic that they believe that words directly make themselves manifest in the world, as if arguments were magic spells. I am certain that sovcits think the legal process works something like this:

PROSECUTOR casts UNPAID TAX BILLS
DEFENSE takes 3 dmg. DEFENSE has 97 hp
DEFENSE casts EXAMINE FLAG
DEFENSE detects GOLD FRINGE
DEFENSE casts MARITIME LAW. It's super effective!
PROSECUTOR takes 9999 dmg. PROSECUTOR has 0 hp 
JUDGE takes 9999 dmg. JUDGE has 0 hp
COURT takes 9999 dmg. COURT has 0 hp
AMERICA heals 9999 hp!
JUSTICE heals 9999 hp!
LIBERTY heals 9999 hp!

YOU WIN!

However, the legal system doesn't work like this; gold fringe doesn't automatically make a court a maritime court, writing your name in eccentric ways does not allow you to dodge taxes or reclaim the money from your "straw man" or whatever, and, in general, law is not magic.

Okay, you're saying, but if jurors are allowed to make judgments based on whether or not they consider the underlying law to be legitimate, we're right back into the same situation, where some random yahoo with (potentially) completely crazy ideas is claiming control over the law. And, yep, it's true — it's theoretically possible that a sovcit might end up on a jury (though probably this would only happen if the prosecutor were like drunk or high during voir dire. The difference, though, is that the juror (regardless of whether or not they're a sovcit) has been selected as an officeholder, specifically tasked with making a judgment in a particular legal case. Although you might wish for this process to work with a minimum of influence or input from the jurors over the outcome of the case — as if the jurors were robots programmed to produce legal rulings rather than humans tasked with making a judgment — I argue that words aren't magic, that the position of carrying out the work of the legal system is by its nature a lever of power, and that regardless of whether or not one may wish that position to not be a lever of power, it is not possible to make that wish come true.

Under the legal idealist position, deviations by the jury from the law as written (and, presumably, as conventionally interpreted) are a travesty of the law, sort of like how in Platonism [trigger warning: lazy description of platonic idealism] actual existing things in the world are less that the ideal forms of those things insofar as they differ from those forms. Under the sovcit position, the form of the law — the specific words of an argument and the appeal to specific statutes in specific ways — is so overwhelmingly powerful that you can cause the court itself to have a segmentation fault by hacking it with the right input, like you could sometimes break an old punchcard-driven computer by sending through a card with every hole punched out. Under the legal materialist position, well, the specific people who for whatever reason are put in charge of making a legal decision are the ones ultimately responsible for that decision; words don't make themselves present in the world without people, and the officeholders are the people we've trusted with the task. We can make it difficult for them to act in terms of their own judgment, by, for example, forbidding the mention of jury nullification, but ultimately the only way to genuinely strip jurors of the power associated with making judgments is for the judge to be able to nullify the juror's judgment upon mere suspicion of juror deviation from the law as the judge sees it.

This shifts power in the legal system — specifically, the power to use the awesome might of the state to legally deprive a person of their life, liberty, or property — away from the people as represented by the randomly selected members of the populace, and to the legal system itself as represented by the judge. This is antidemocratic. That doesn't mean it's a bad thing, necessarily. But it also doesn't mean that you can safely say that a sovcit on a jury has as little theoretical right to decide over the law as as sovcit defending a case does, since ruling against a sovcit doesn't represent a limitation of democratic rule in quite the same way that stripping power from jurors does.
posted by You Can't Tip a Buick at 5:33 PM on December 4, 2015 [10 favorites]

The accused have the right to remain silent and don't have to explain anything (5th); and the defense doesn't have a burden or an obligation to present evidence disproving guilt (5th and 6th).

Which boils down to having the right to say "Go on then, prove it". Which, in the theft case described, the prosecution appears to have done beyond reasonable doubt in the mind of the jury.

I've sat in "no comment" police station interviews under caution, and it is typically a tactic against self-incrimination. That doesn't mean that everyone who goes no comment is guilty, but it sure as hell doesn't mean that we have to assume they're innocent in the face of contrary evidence either.
posted by howfar at 5:38 PM on December 4, 2015 [2 favorites]

I should perhaps be clear that it was the interviews that were under caution, not me.
posted by howfar at 5:40 PM on December 4, 2015 [1 favorite]

looks like we're gonna have a hung jury here howfar
posted by Hoopo at 5:41 PM on December 4, 2015

>>The defendant did not offer much of a defense at all, really, apart from saying though an interpreter that it wasn't him and he didn't do it.

>Samesies.

[...]

>The accused have the right to remain silent and don't have to explain anything (5th); and the defense doesn't have a burden or an obligation to present evidence disproving guilt (5th and 6th). The presumption of innocence is a hard thing to wrap one's mind around, but deeply necessary for ethical criminal justice administration. It's hard enough to go to trial as it is, with people frequently sucking it up and spending a year or more in custody awaiting trial, without folks sitting on juries and refusing to hold the prosecution to their obligation to prove everything beyond a reasonable doubt in the absence of affirmative evidence presented by the defense.

Even though we can presume him innocent until he is proven guilty, in this case the prosecution put forth a number of arguments to prove just that: "We are accusing this guy of committing this crime [for clarity, this was car burglary]. We think he did it. Here's his motive, here's his opportunity, and here's physical evidence and sworn testimony linking him to the crime scene. Based on this, Jury, we ask you to find him guilty."

Now, looking back after 15 years, I think a good defense attorney could have successfully argued to have some of this evidence thrown out. I also think the defense could have raised doubts about the accuracy of the sworn testimony and the linkage of the physical evidence to the crime. The state said, "he did it - here's why, and here's how." The defense said, "he says he didn't do it, so the state is wrong," but they did not refute the evidence that the prosecution presented in court, before a judge.

At the time, I think we made an adequate effort to examine the evidence, weigh the testimony of all parties, etc., before we reached a verdict. I also think, though, that the defense attorney was weak and did a poor job defending his client. We rendered a verdict, but over the years I have doubts that justice was served. A better defense likely would have yielded a different result for this defendant, even with this same jury.
posted by mosk at 5:42 PM on December 4, 2015 [1 favorite]

Did a comment get deleted? It's looking now like I referenced details of something that's not in this thread
posted by Hoopo at 5:50 PM on December 4, 2015

I had quite the opposite experience in a murder trial a few years ago. It actually made me feel greater respect for my fellow citizens, and less pessimistic about the system.

The defendant was a young black man who shot and killed his brother-in-law. I won't go into the specifics of the case, but according to the defense, the defendant was assaulted and threatened in his own home by the brother-in-law. The defendant drew a gun and ordered the brother-in-law to leave. The brother-in-law charged the defendant, and the the defendant shot in self defense.

The prosecution presented it as an altercation that ended. The defendant left the room, returned some time later, and shot the defendant in the back.

The jurors were mostly white, with three latinos, an indian-american, and one late middle-aged black woman. A pretty wide range of backgrounds and socio-economic statuses was represented, but it was definitely not really representative of the racial mix in Houston, one of the more diverse cities in the US.

The deliberation was quite lengthy. Everyone was engaged in the discussion, asked good questions, and was quite respectful of each other. Everyone took it very seriously- one older gentleman cried because he was so upset about having to make such a serious decision.

It took a lot of discussion, but we came to a consensus that there was enough evidence to support the self-defense claim. (We decided that the Texas stand your ground law applied, and we almost unanimously felt that it was an uncomfortable law. That was probably some of the hardest discusssion- getting everyone to accept that the law lets you shoot to kill with pretty minimal proof of danger.) Some people took a while to agree that any reasonable belief that the defendant believed himself in serious danger was enough to acquit.

I and a fellow juror tried our best to facilitate the discussion, and come up with a decision process- we'd broke up the decision into a tree of sub-steps. Once we agreed on a sub-step, we would record our decision and close it to further discussion. Everyone bought into the process and stuck to it.

We deliberated for 4 days, spanning a weekend. There was just a tiny bit of grousing about having to come back on Monday, but nobody gave up out of fatigue. We didn't even take a poll until the second day. The judge and attorneys all expressed surprise at how long we deliberated- they hadn't expected it to take more than an afternoon.

The experience was not what I expected at all. I expected people not to listen to each other, to have made up their minds before entering the room, to be disrespectful of other people's opinions. I guess I shouldn't take it as representative of all juries, but I wish I could.
posted by uberfunk at 5:53 PM on December 4, 2015 [32 favorites]

The last jury I sat on came two votes short of nullification. The only reason the two held out is because they felt, however poorly conceived the law in question may be, it was the law and that's that. So we acquitted on the minor charges and hung on the main charge.

Indiana actually has the concept of jury nullification written into the state constitution. Based on the above experience, I'd say that's a good thing.

I enjoyed being on that jury. Everyone took the job seriously and applied some serious thought to the deliberations. It didn't hurt that we unanimously thought the prosecutor was a dick who was trying to railroad the defendant, thanks to a shitty drug law.
posted by Thorzdad at 6:19 PM on December 4, 2015

Most people who serve on juries find it an enriching and powerful experience that reaffirms (or creates!) their faith in citizen juries, uberfunk, so your experience was luckily common! "Bad" juries are the exception, not the rule. People find the stuff around being called for jury service very annoying (showing up and sitting around waiting for empanelment all day, voir dire, most people not being seated, etc), but those who actually serve on a jury typically feel good about how diligent and careful the jury was and are proud of their service, and feel like they learned something important about how our democracy works.

(My poor mother has been empanelled on murder juries twice and aggravated assault juries twice, she is getting a little grumpy about it, no matter how much I extol the virtues of citizen juries.)
posted by Eyebrows McGee at 6:19 PM on December 4, 2015 [5 favorites]

I've sat on a jury once for an assault and robbery case. Everyone except for one guy was cool, took it seriously and was good at discussing what we had to. This one guy was a general smuck the entire time because he got pissed that he didn't get picked to be the fore person because boy did he want to be it. No one wanted him to be it, but no one else really wanted to so I ended up being it because the question got asked if anyone had experience chair meetings. I said I did and everyone except the one guy was all 'okaygoodyouareit' .

So this guy proceeds to spend the trial part generally snarking and pouty faced. Then when the deliberations started he became his own version of Perry Mason. Spend two days trying to make it into something more, to come up with crazy theories that had nothing to do with anything evidence. He also decided that everyone, including the judge didn't understand the laws that the defended was being charged with.

So the after hours of discussion we got to 11 not guilty and 1 guilty. Every time we vote this guy would come up with some bizzare reasoning about why he voted and how we had to go back at discuss this point or that. It became obvious that he was only voting this way because he could and he was enjoying his game. Things started getting tenser and tenser because it got to the point that if we didn't come to agreement by a certain time we would have to be sequestered and spend the weekend in a hotel. I had to call a time out when another guy looked like he was about to jump across the table and deck the jerk.

At 10 mins to times up it looked like we were going to the hotel and people were talking about arrangements. The bailiffs were starting to do whatever they had to do on their end. At 5 mins we decide to have one more vote just so we could tell the judge we tried to the end even though by then it was pointless. We figured that this guy wanted to inconvenience everyone because he was an asshole on a power trip.

We just go around the table, the guy says guilty, everyone else says not guilty and as people are starting to move to get up jerk guy pipes up with a super smug smile on his face 'Oh well you know, I think you all have finally convinced me I change my vote to not guilty'

Some people are such ASSHOLES!

Anyways jerk guy didn't completely ruin the experience. What was fascinating was that there was no question that the defendent clocked the person with the hockey stick and took a small amount of money. Pre-trial if I had been told the general story I would say yeah, he assaulted the person. The prosecution didn't provide enough to cover the legal definition of assault. Four criteria had to be met and the judge explained really clearly how to go through them and that if any one wasn't met beyond reasonable doubt then we couldn't legally find for guilt. It was super interesting going through it so methodically with the other people at the table and come to the realization that what happened wasn't legally assault so he wasn't guilty.
posted by Jalliah at 7:02 PM on December 4, 2015 [5 favorites]

I and a fellow juror tried our best to facilitate the discussion, and come up with a decision process- we'd broke up the decision into a tree of sub-steps. Once we agreed on a sub-step, we would record our decision and close it to further discussion. Everyone bought into the process and stuck to it.

This is what I did when I was foreman. I explained the jury deliberation process as a series of goals that all had to be met in a specific order in order to produce a guilty verdict. The holdouts didn't buy into the step-by-step process, and I think if they'd bought in we would have reached a verdict. But they had axes to grind.

Jalliah, if that juror had murdered the jerk juror during those deliberations, no jury would have convicted him.
posted by infinitewindow at 7:06 PM on December 4, 2015 [3 favorites]

I wonder which are the serious moral philosophies that think the veto approach to jury selection is good or just. Whether the job of a jury is to be maximally accurate in expectation, or to minimize the chance of false positives, or just about any other criterion of justice I can think of, almost no system would suggest that a jury constructed by free-form veto would lead to a body even remotely resembling the defendant's "peers." The idea that you can veto participants based on their attitude towards the moral and legal question raised by the case itself (attitude towards police, or towards punishment types, eg) seems to explicitly subvert the very idea of a jury of one's peers. So if you believe this (which of course you needn't), it seems not only allowable, but even required that one dissemble during voir dire, if that dissimulation leads to a more accurately peer-like jury (in your view; but the whole point of a jury is that there is no trump to your view).

And that's just one of the reasons why lying during voir dire might be justified. There are lots of good reasons to do so which are consistent with a well-functioning society and/or with notions of civil disobedience in the face of a significantly unjust society. Go ahead and do it if you have a good reason, and sleep easy that you are making the world a better place. The whole point is, it's your judgment to make.
posted by chortly at 7:10 PM on December 4, 2015 [4 favorites]

My experience of jury duty is of being in the wrong chair - the defendant's chair. Having decent people on my juries kept me from having to go to prison for something I didn't do. For all of you who have served on a jury and taken it seriously, thank you.

Thanks for posting this, roomthreeseventeen.
posted by bile and syntax at 7:24 PM on December 4, 2015 [23 favorites]

The bailiff was medium-hot, the all-female jury was bored.

Oh god I was a bailiff with social phobia in Arizona in the 90's and the only thing that got me through the day was the certainty that I was all but invisible to the jury. If medium-hotness was enough to get a bored jury talking about bailiffs, I'm going to have to deal with "Did they gossip about the one day where I dressed in the dark and accidentally put on one black shoe and one blue shoe?" kind of mind-noise for a while.

On a slightly more serious note, I wasn't privy to jury deliberations, but my observations of their behavior (and their post-trial discussions with judge and counsel) are pretty consistent with Eyebrows McGee, especially the part about not believing in back injuries.
posted by creepygirl at 7:42 PM on December 4, 2015 [2 favorites]

memo to self: if selected for jury duty, do not share thoughts about epistemology during voir dire.
posted by You Can't Tip a Buick at 9:00 PM on December 4, 2015 [3 favorites]

I cringed every time they voted non-anonymously. Apparently, the idea that ten or eleven people should get angry at one or two jury members has the hidden agenda to require jurors to argue heatedly, as sort of an inverse trial-by-ordeal, discounting any problems related to burnout. It makes sense to require jurors to deliberate, but if one holdout can't convince anyone else on the jury then they might be incompetent, or delusional, or somehow related to the defendant, but not recognized as being wiser than everyone else. If we indulge the wise person theory that somehow a loner who knows better should be able to veto everyone else who may be rapid with prejudice, then a unanimous jury might as well be considered rabid with prejudice. My point is that jury voting should be anonymous anyway, after a self-organized debate or analysis with recorded minutes, and any open vote would be for closing debate. The verdict vote could be sent to the judge without the jurors ever knowing the results, but they at least knew when they were done.
posted by Brian B. at 9:23 PM on December 4, 2015 [1 favorite]

In England and Wales, judges are permitted to accept a 10-2 or 11-1 verdict, if the jury can't come to a unanimous decision after a set period of time. (Scotland's rules are weird and too much of an outlier for the research I worked on, but I think they can have non-unanimous juries but they seat like 15 people but can dismiss some of them during the trial? Anyway, unusual.) New Zealand allows 11-1 in criminal (and 9-3 in civil). Canada requires unanimity in criminal but allows 5-1 in civil. In the US, some states allow STATE criminal or civil trials to be non-unanimous (federal must be unanimous), but the US Supreme Court has been less-friendly to this lately.

Often jurisdictions that allow majority verdicts require unanimous verdicts on more serious charges or more serious sentences (life in prison, death penalty). Anyway, there are options and we can look at both domestic and international experiments in jury size and unanimity; I'm not sure there's a super-great reason why low-level offenses without custodial sentences should require unanimity. (But then I suppose an awful lot of those plead out anyway.) Because I feel like the US criminal justice system is pretty out of whack right now w/r/t custodial sentences, I feel like I'd want unanimity on those, but one could imagine a more sensible set of drug laws, more restraint and discretion from prosecutors, more job and social opportunities after time has been served, and a more humane incarceration system where unanimity might not seem so necessary because the consequences for getting it wrong wouldn't be quite so dire.
posted by Eyebrows McGee at 9:44 PM on December 4, 2015 [4 favorites]

There is a wide gulf of difference between refusing to convict someone you believe is technically guilty of violating a law you disagree with, and choosing to convict someone you believe is technically innocent of a law you have no issue with.

The similarity is that in each case a juror (or the whole jury, in one case) is taking advantage of their de facto autonomy in rendering a verdict to do what they wish, rather than obeying the instructions of the judge. You may find one more heinous or morally disreputable than the other, but they are mechanically similar.
posted by kenko at 9:44 PM on December 4, 2015

It doesn't follow that if someone describes themselves as in favor of nullification, they must also be in favor of conviction in the absence of evidence.

This though and the remainder of grobstein's (helpful!) comment I am down with.
posted by kenko at 9:46 PM on December 4, 2015

I have to admit that Jalliah's story is one where I would personally nullify in favor of conviction, so it does happen. If it were proven beyond a doubt that a guy hit another guy with a hockey stick and took his money, I would think any law not calling that assault was a bad law and needed to be changed.
posted by corb at 11:08 PM on December 4, 2015

The defendant --- swearing over and over it wasn't him, they'd got the wrong guy -- couldn't explain why, if he wasn't guilty,

The 5th and 6th Amendments. You're doing them wrong.

likeatoaster, I think it would be useful for you to unpack what, in your view, the prosecution needed to do further to establish a strong case for guilt beyond a reasonable doubt in the account you're responding to.

The defendant --- swearing over and over it wasn't him, they'd got the wrong guy --- couldn't explain why, if he wasn't guilty, why were his fingerprints all over the broken window, as well as other things in this stranger's house? Why is there a TV in your living room with his serial number? And for crying out loud, why is HIS family photo album in a box (marked with his name!) in YOUR closet?

I am not a criminal lawyer, and my direct professional experience of criminal law is very limited, but I remember the lectures, and I'm struggling to see how (without more) those facts would not be enough to convict under the common law standard of criminal proof. What is it I am misunderstanding, in your view?
posted by howfar at 11:25 PM on December 4, 2015

If it were proven beyond a doubt that a guy hit another guy with a hockey stick and took his money, I would think any law not calling that assault was a bad law and needed to be changed.

What if (for example) the blow were struck by accident or in self defence and the taking of the money merely an afterthought? There seem to be plenty of plausible extensions of the particular facts we've been given that could result in a not guilty verdict.
posted by howfar at 11:42 PM on December 4, 2015 [1 favorite]

In England and Wales, judges are permitted to accept a 10-2 or 11-1 verdict [...]

There's an unusual twist on this in Jewish law. The way capital cases worked (back when - these courts haven't been convened for about 2,000 years) you take a vote among the twenty-three members of the tribunal, starting with the most junior. Majority wins. But - the defendant is acquitted on a unanimous vote, whether or not they find the defendant to be guilty. The logic as it was explained to me is: if nobody on a tribunal can find a reason to acquit, they haven't done their job. Anyway, I thought it was an interesting point in favor of majority verdicts.
posted by Joe in Australia at 5:12 AM on December 5, 2015 [5 favorites]

I was speaking more generally about how folks in this thread were discussing the evidence presented and the roles of the parties respectively, but also, because you asked, I maintain skepticism that any criminal case that makes it all the way to trial is actually as open and shut as to every issue as the commenter would have us believe, and frankly I find the notion of rendering a unanimous guilty verdict -- deeply affecting the future of someone's life -- in only 30 minutes to be rather appalling.
posted by likeatoaster at 5:58 AM on December 5, 2015 [1 favorite]

Like, people go to trial for a reason. For example, not actually guilty, state botched the investigation, guilty but expect more mercy from the jury than the prosecutor, will be deported if they take a plea, there is mitigating evidence or mental health issues, etc.

I am a criminal defense attorney, and generally speaking, if you don't have a reason to go to trial, you don't go to trial. You take a plea, guilty or not, because it is easier and it is safer. Just like the overwhelming majority of the people involved in the American criminal justice system.
posted by likeatoaster at 6:03 AM on December 5, 2015 [8 favorites]

I have to admit that Jalliah's story is one where I would personally nullify in favor of conviction, so it does happen. If it were proven beyond a doubt that a guy hit another guy with a hockey stick and took his money, I would think any law not calling that assault was a bad law and needed to be changed.

This is why there are trials and we don't convict people on a summary of a story or what we think the law should be. Assault is about more then just one person hitting another person. This trial ended up being an example of why the law should never be 'hit another person = assault' automatically, in a no question black and white sort of way. Many conflicts between people have a whole lot of grey involved. A law like that would not be conducive to justice being served properly.

This trial took four days. There was much more involved then what I briefly talked about. The dude that got hit was no innocent. The alleged robbery was over 20 dollars, sitting on the counter of the kitchen of the apartment the two guys shared. It was a he said, he said sort of thing and in my opinion that charge was stuck in there by the Crown as a throw away because it was a stretch to make into a robbery scenario.

There was drugs involved and a whole fun scenario of drug dealing and addiction. There was witnesses that said different things. No story said the same thing.

The whole thing was very sad all around. The two guys most definitely had a fight over the 20 bucks and other personal issues which were related to them both being addicted to crack and one of them having a problem with a dealer. One guy got whacked pretty bad during it. The forensic evidence of the way the guy was hit indicated that the likely scenario was not accused dude taking a focused' I'm going to fuck you up type swing' but more two totally high, angry guys rough and tumble fighting around a room with one picking up and swinging a hockey stick like a drunk person would, while telling the other guy to stay away. It wasn't assault just because one guy ended up getting hurt the worst. Some times a fight is a fight with both people being responsible for it and it's consequences.

We made the correct decision in that case. I'm proud of what our group of strangers managed to do even with jerk guy. It was a complex scenario about was essentially a personal relationship gone wrong due to a whole bunch of different factors. There weren't any easily determined 'bad guys' or 'good guys'. The thing I'm most proud about is that the other people at the table did not react with stereotypes and just write the defendant off because of the crack issue. Many people would and punish for it. Neither was it some sort of bleeding heart type excuse. It was treated as a factor in the whole scenario, a sad factor, a factor that people didn't like but not something the guy deserved to get years of punishment for.

I hope the guy was able to get his life together after the trial and looked at it as a second chance. He broke down and cried at the verdict and promised us that he would. At the time I knew he meant it. You never know with drug addiction though. It derails even the most sincere intentions. I hope the guy that got hit got on a better path as well.

There were no over-all winners in this trial as I said before it was just sad. Though without trying to sound too pompous and cliche I do feel that justice won in this case. Even jerk guy ended up doing the right thing in the end no matter what his reasoning.
posted by Jalliah at 6:17 AM on December 5, 2015 [10 favorites]

Can somebody (Eyebrows?) unpack the whole "back injury" thing? I might wind up in a jury in a few months, and in reading this thread, I'm starting to think I haven't watched enough Law & Order. (Or that I haven't watched too much Law & Order...)
posted by CheesesOfBrazil at 6:26 AM on December 5, 2015

CheesesOfBrazil: “Can somebody (Eyebrows?) unpack the whole "back injury" thing? ”

One presumes it's because stories of fraud like “Caught in the Act: Workers Collect Thousands in False Injury Claims” and “‘The Price is Right’ contestant busted for disability fraud after spinning the ‘Big Wheel’ on TV ” seem to be an staple on news programs and among medical practitioners.
posted by ob1quixote at 9:08 AM on December 5, 2015

I hasten to add: Not that I agree. I know too many people permanently injured on the job to take allegations of widespread malingering seriously.
posted by ob1quixote at 9:13 AM on December 5, 2015 [3 favorites]

I have to admit that Jalliah's story is one where I would personally nullify in favor of conviction, so it does happen.

I apologize for being pedantic and continuing to hammer on this, but jury nullification has a specific definition and it does not in any way, shape, or form include voting in favor of conviction when you technically believe the suspect does not satisfy the required elements of the crime under the law. This is not jury nullification and is in fact counter to the entire philosophy of jury nullification, as grobstein explained so well above. Jury nullification does not mean "I disagree with the law so I do what I think is right." It applies only to acquittal.

Please, anyone reading this, do not serve on a jury and think it is accepted practice or anything short of reprehensible to convict a defendant when the prosecution has failed to meet its burden to prove the required elements of the crime (the required physical acts, actus reus + the required mental state, mens rea). This is not jury nullification, it is a miscarriage of justice and it is not permitted in our system of laws.
posted by sallybrown at 9:35 AM on December 5, 2015 [9 favorites]

This is not jury nullification, it is a miscarriage of justice and it is not permitted in our system of laws.

It seems a bit odd to juxtapose "miscarriage of justice" and what's "permitted in our system of laws" against jury nullification, which by definition is a jury choosing to disregard the law to acquit a defendant they believe is guilty of the crime charged. This is a possibility within the system. But another possibility is for a jury to convict a defendant they think is technically innocent. In both cases a jury is disregarding the law, just for the former, jury nullification, there is no recourse whatsoever.
posted by cheburashka at 10:03 AM on December 5, 2015 [1 favorite]

Jury nullification is explicitly permitted. The practice has been challenged and upheld in court many times over literally hundreds of years. It is a juror's right and does not violate the oath the jury takes. It is thus a permitted choice in our judicial system. In contrast, convicting a defendant when the prosecution has failed to meet its burden of proving the elements is not permitted and is a violation of the jury's sworn duties. Both are obviously "possible," but one (jury nullification) is allowed and the other is very much not allowed. To assert that they are equivalent choices is factually incorrect.
posted by sallybrown at 10:16 AM on December 5, 2015 [6 favorites]

Both are obviously "possible," but one (jury nullification) is allowed and the other is very much not allowed. To assert that they are equivalent choices is factually incorrect.

I was looking for a citation for this, but I'm not turning anything up. Can you point me at something which confirms it? This article by an academic lawyer, doesn't mention the different legal statuses of the two practices, for example, which I found surprising in light of your remarks.
posted by howfar at 11:28 AM on December 5, 2015

Both are obviously "possible," but one (jury nullification) is allowed and the other is very much not allowed. To assert that they are equivalent choices is factually incorrect.

I was looking for a citation for this, but I'm not turning anything up. Can you point me at something which confirms it? This article by an academic lawyer, doesn't mention the different legal statuses of the two practices, for example, which I found surprising in light of your remarks.


The article is by a law student just out of 1L. Not that that makes it bad. Just, I don't necessarily expect an online magazine article by a law student that's only kind of about jury nullification to tell me everything about jury nullification.
posted by grobstein at 12:17 PM on December 5, 2015 [3 favorites]

The article is by a law student just out of 1L. Not that that makes it bad. Just, I don't necessarily expect an online magazine article by a law student that's only kind of about jury nullification to tell me everything about jury nullification.

I wasn't reading carefully enough. But...still, is there a source for the view that "reverse nullification" is unlawful?
posted by howfar at 2:42 PM on December 5, 2015 [1 favorite]

I recognise that, if it happened, it would likely be susceptible to remedy on appeal, but is there case law on the point?
posted by howfar at 2:45 PM on December 5, 2015

edeezy: "I don't really understand the jury selection process; I thought cops would be pretty much automatically excluded from criminal juries, or do defense attorneys have to use one of their no-cause strikes?"

Most jurisdictions have drastically reduced who is "automatically" excluded both due to a decline in the belief that any juror is particularly biased based solely on their employment, and due to increasing difficulty getting enough people to show up. When I was little, Cook County automatically excluded lawyers' spouses, in addition to lawyers, cops, etc. These days, while you may get pre-emptively struck, you can pretty much only get excluded automatically if you're breastfeeding an infant. There was a murder trial when I was in law school, during the summer break, where THREE law professors from two different law schools got seated on the same jury! (That county had a terrible time empaneling a jury.) My county has such a small bar that it would probably save everyone a lot of wasted time if they DID automatically exclude lawyers from being called, since we all know each other and we've all been in court with or against each other and we all know all the judges and have strong opinions, but we still have to show up and go through voir dire and get struck by the judge then. ("Do you have any preexisting relationships with any court personnel?" "Well, I campaigned against the prosecutor and called him a brainless dickhead in the press, I used to work for the defense attorney although to be fair he is also sort-of a brainless dickhead, and I helped run a fundraiser for the judge's last campaign. So YES.")
posted by Eyebrows McGee at 5:46 PM on December 5, 2015 [4 favorites]

Jury nullification is explicitly permitted. The practice has been challenged and upheld in court many times over literally hundreds of years. It is a juror's right and does not violate the oath the jury takes. It is thus a permitted choice in our judicial system. In contrast, convicting a defendant when the prosecution has failed to meet its burden of proving the elements is not permitted and is a violation of the jury's sworn duties. Both are obviously "possible," but one (jury nullification) is allowed and the other is very much not allowed. To assert that they are equivalent choices is factually incorrect.

I would be interested to see any authority you can cite for the suggestion that there exists a difference in how a juror can get in trouble when reaching a guilty verdict while believing the prosecution did not carry its burden as opposed to when engaging in jury nullification.

Obviously jury nullification exists as a consequence of acquittal verdicts being unreviewable, whereas a conviction is appealable. And certainly one can make arguments why a jury convicting a defendant who is innocent under the law is in every instance worse than a jury acquitting a defendant who is guilty under the law. But, it seems to me, to deny that there is a parallel between a jury that disregards the law in order to convict and a jury that disregards the law in order to acquit by simply reiterating that the latter is "explicitly permitted" or "allowed" or a "juror's right" or "does not violate the oath" is begging the question.
posted by cheburashka at 7:07 PM on December 5, 2015 [1 favorite]

I've never heard of jurors in a modern court being punished for reaching a "false" verdict, but I understand that acquittals in many Common Law jurisdictions may be set aside when the judgment was perverse: that is, when no reasonable jury faced with that evidence could have come to the same conclusion. So jury nullification is still a thing, but it could only apply when there is some basis for the acquittal. If that law had applied to the notorious acquittals of defendants in lynching trials, the defendants could have been tried again without being able to plead double jeopardy.
posted by Joe in Australia at 7:22 PM on December 5, 2015

I would be interested to see any authority you can cite for the suggestion that there exists a difference in how a juror can get in trouble when reaching a guilty verdict while believing the prosecution did not carry its burden as opposed to when engaging in jury nullification.

This is extraordinarily easy to find via Google and/or Wikipedia. Do your own work.
posted by sallybrown at 9:34 PM on December 5, 2015

This is extraordinarily easy to find via Google and/or Wikipedia. Do your own work.

Well, no...it isn't. I've looked.
posted by howfar at 3:53 AM on December 6, 2015

If you want to know about how the courts feel about jury nullification vs convicting people without adequate prosecution, look at how hard it is for the court to undo them.

But that's a direct consequence of the double jeopardy clause of the Fifth Amendment. I don't personally see why it would tell us anything about whether jurors can be held in contempt or similar for convicting when they believe the offence is not made out.

I'm not arguing that people should do this. My question is legal, because I am curious to understand the basis of a very strong assertion that was made, which I haven't yet been able to turn up support for.
posted by howfar at 4:08 AM on December 6, 2015

I don't personally see why it would tell us anything about whether jurors can be held in contempt or similar for convicting when they believe the offence is not made out.

My point was not that a juror can be personally punished for one thing and not the other. It is that our system of laws recognizes the validity and legality of one of these behaviors (jury nullification - which again, if you google "cases upholding jury nullification" or the like, is super easy to research), and our system of laws does not recognize the validity and legality of the other (convicting in the absence of the prosecutor meeting the burden of proof).
posted by sallybrown at 5:03 AM on December 6, 2015

The part I found most unnerving in this was near the beginning, where the author explains how the jury selection process specifically excludes those who do not trust the police. I just don't see how this is a defensible approach.

On the one hand, we've just seen too many instances by now of toxic police behaviour to make mistrust of the police a dismissable canard. On the other, seeking only to include people who trust the system does not seem to square with wanting to have a jury comprised of people who will reflect objectively on the evidence and interpretations brought forward by the prosecution and the defence.

To me, this seems yet another instance of the justice system seeking to safeguard its institutions, rather than support its mandate.
posted by The Outsider at 5:30 AM on December 6, 2015 [4 favorites]

(jury nullification - which again, if you google "cases upholding jury nullification" or the like, is super easy to research)

Ah. I'm right v. Do your own research. I remember that case.

You're the attorney here. I'm not. If, as you say, the courts have so clearly upheld the legality of "jury nulification," why don't you tell me the name of the case (or even one of the cases) that demonstrate that.
posted by octobersurprise at 5:53 AM on December 6, 2015 [2 favorites]

Here, let me Google that for you
posted by shakespeherian at 6:03 AM on December 6, 2015 [1 favorite]

That link, shakespeherian, says that the U.S. Court of Appeals for the Second Circuit stated: "We categorically reject...that courts may permit [jury nullification] to occur when it is within their authority to prevent."

Hardly a ringing endorsement of the practice, or even a clear statement of its legality. So...maybe a little more constructive engagement and a little less terse dismissal would be useful here?
posted by howfar at 6:18 AM on December 6, 2015 [1 favorite]

I'm not arguing for anything or attempting to establish ringing endorsements, I just think it's silly to suggest someone needs to have passed the bar to look something up on Wikipedia.
posted by shakespeherian at 8:03 AM on December 6, 2015 [2 favorites]

But it's tricky when Wikipedia doesn't really seem to support the clear cut view of support and endorsement for acquittal by jury nullification that sallybrown seems to be presenting, or the obvious distinction they draw between that and conviction by the same means. I don't think it's unreasonable for people outside the field of US law to make inquiries of the expert making the assertion for clarification and support, when the obvious secondary sources seem to be, to a certain extent and in some respects, at odds with the assertion made.

It looks to me, from the Wikipedia article and this article, like the position is not that the courts recognise the validity of jury nullification, but rather that there are some circumstances in which other constitutional protections prevent them from intervening to stop it. Hence we have a Supreme Court judgement stating that: "[Juries] have the physical power to disregard the law, as laid down to them by the court. But I deny that … they have the moral right to decide the law according to their own notions or pleasure. On the contrary, I hold it the most sacred constitutional right of every party accused of a crime that the jury should respond as to the facts, and the court as to the law … This is the right of every citizen, and it is his only protection".

So, from my perspective, it's a bit unhelpful for someone speaking from a position of authority to refuse to support an assertion that looks, from my perspective, somewhat overstated. Given that my reading, lacking appropriate experience of the jurisdiction, may well be wrong, exhortations to just Google it don't help me. I recognise it's not anyone's responsibility to help any of us understand, but sallybrown's initial engagement with the thread appeared to intended to offer precisely such help.
posted by howfar at 8:22 AM on December 6, 2015 [2 favorites]

I'm happy to explain based on personal knowledge (which I did), but putting in unpaid labor to assemble primary sources for you on a point of law that is not so easy to explain to non-lawyers to begin with is not something that feels productive to me, and is uncomfortably close to the work I get paid to do for more than enough hours every day already. If you want to disregard my authority for that reason, you are more than welcome. But I find this to be a tiresome derail - it just concerns me that someone may read this thread and come away with the impression that he or she is "allowed" to convict a defendant when the burden of proof is not met. Thankfully most jury instructions are pretty explicit and clear that jurors cannot do that.
posted by sallybrown at 9:35 AM on December 6, 2015

Seems like we're spinning in an is-ought problem. The is: a jury can, for all practical purposes, either convict or acquit with conscious disregard of the law, in the sense that this is something that just can happen. One may insist that when a jury ignores the law in acquitting that's not really disregarding the law because nothing can be done about this result within the legal system as it now exists (jury nullification), whereas a jury verdict that convicts while disregarding the law can be overturned. But that's not an actual argument or a reason for whether this ought to be the case, just a description of what is the case.

The ought: should a jury ignore the law when acquitting or when convicting? There may be reasons to say that it's a good thing for a jury to ignore the law in order to acquit, but a bad thing to ignore the law in order to convict. But to reiterate that jury nullification exists does not actually contribute anything to the discussion of whether it ought to exist, whether it's a good thing in itself, or whether it's a bad thing in itself but accomplishes something that's worth it.
posted by cheburashka at 10:25 AM on December 6, 2015 [2 favorites]

I've been lurking in this thread, also interested in the answer to howfar's question. I haven't found explanation for the explicitly allowed/not allowed assertion and would really like to know. I haven't had to serve on a jury yet due to being out of the country, but may have to now that I've repatriated.
posted by damo at 11:21 AM on December 6, 2015

I don't drive (the DMV being the primary source of jury duty lists in the US), and I've moved often enough that I've never been successfully called up for jury duty. I once had to phone in and found my number hadn't been picked, or something, but that's it.

But my mother once told me of a juror who insisted that the defendant was guilty solely because he was arrested. Why would the police catch someone who wasn't guilty? When the other jurors tried to explain, this man put his hands over his ears and actually shouted "LALALALALALA" so he wouldn't have to hear them.

In this way, we sentence people to death.
posted by rum-soaked space hobo at 1:55 PM on December 6, 2015 [1 favorite]

A rather long law review article on jury nullification. Part I is a historical survey (parts quite moving). Part V is a survey of current law. I would have more to say but I'm busy and folks can chew their own food.
posted by grobstein at 1:45 PM on December 12, 2015 [1 favorite]