Beyond a Reasonable Doubt

November 22, 2010 7:22 PM

I’ve spent the better part of the week serving as the foreman for a jury in a criminal case. As they tell you, you’re not allowed to talk about it with anyone, not even your fellow jurors, during the trial. As they also tell you, once the trial is over you can talk about anything you want. So, here goes.
posted by DarlingBri (80 comments total)

On the other side, the only alibi for the defendant is his mother, who says her son was with her the whole morning and couldn’t have committed the crime in the timeframe given.

This is actually one of the most interesting parts of the piece to me, as a criminal defense attorney. Whether or not to present a defense case in a criminal trial is always a big question, and conventional wisdom is that you usually don't want to present a case. The reasoning is that if both sides present a case, juries and judges have trouble not simply deciding deciding which side they think is more believable and ignore the fact that the burdne is on the prosecution to prove their case. That reasoning seems to be supported by the writer's description of his response to the mother's testimony.
posted by Bulgaroktonos at 7:43 PM on November 22, 2010 [9 favorites]

I find this story rather heartwarming. The jurors did their job and applied the law, and that resulted in some resources being devoted to a kid who sounds like he could use them.
posted by bearwife at 7:44 PM on November 22, 2010

That's a neat insight, Bulgaroktonos. I'd always heard of that happening but assumed it was a little akin to giving up. Never realized it had such a strategic purpose. Thanks for sharing.
posted by auto-correct at 7:46 PM on November 22, 2010

But it’s at least palatable.

In this particular case, with this particular judge and DA. I'm sorry to say that sometimes it's NOT palatable.
posted by muddgirl at 7:46 PM on November 22, 2010 [1 favorite]

Instructions or no, if the punishment is out of scope to the crime I'll be voting not guilty.
posted by LastOfHisKind at 7:47 PM on November 22, 2010 [19 favorites]

Great fpp.

That stubborn woman juror reminded me if something I heard today:

"A belief is a thought you keep thinking... a conclusion is merely when you stopped."
posted by Bathtub Bobsled at 7:50 PM on November 22, 2010 [8 favorites]

Lastofhiskind, that's probably why the sentencing takes place after the jury's work is done.
posted by anigbrowl at 7:56 PM on November 22, 2010 [2 favorites]

I was elected as jury foreman not because I'm a natural leader, but because I was juror #12 and was last in the deliberation room. All the seats except the one at the head of the table were taken.

I have to wonder about the effectiveness of a criminal justice system that has "Not It" at its core.

(Hung jury because one ex-911 operator didn't trust the police's testimony and one immigrant presumably thought that domestic violence was the natural order of things.)
posted by infinitewindow at 7:59 PM on November 22, 2010

I think many people really don't understand the concept of reasonable doubt. I mean that seriously - they really fail to comprehend that the world is not strictly black and white.

"Reasonable doubt" is the term that is used when one really wants to say "certainty". Obviously, certainty is a standard that would be very hard to meet, if not entirely impossible. Unreasonable doubt would be the obverse of reasonable doubt. Excluding unreasonable doubt is tantamount to certainty, and that's why they qualify the burden of proof to be beyond a "reasonable doubt". I think when some people hear this, they don't quite grasp how heavy a burden the prosecution actually bears. They vote for guilt because it "sounds reasonable" - which is not even close.

It seems to me, based on this article alone, that they probably got the right kid - but the prosecution fell well short of proving the case beyond a reasonable doubt. I think it's kind of odd that the prosecution felt they had enough to go to trial on. How many people go to prison on evidence this shaky?

Two things that struck me after some time reflecting on this: I wonder how I would feel if the defendant had not been described as a good kid gone astray; and working on a defense strategy could be the kind of thing that keeps you up all night, every night.
posted by Xoebe at 8:05 PM on November 22, 2010 [1 favorite]

I think many people really don't understand the concept of reasonable doubt. I mean that seriously - they really fail to comprehend that the world is not strictly black and white.

This exactly. They have no clue.
posted by odinsdream at 8:11 PM on November 22, 2010

Good post, thank you. I would be most interested to participate in jury duty. To be honest, though, in Australia it's quite easy to get out of it, which I think is a damned shame as it means the people most likely to show up are not necessarily representative of the population at large - which, please correct me if I'm wrong lawyerfites, I believe it one of the goals behind the concept of juries.
posted by smoke at 8:12 PM on November 22, 2010

I think many people really don't understand the concept of reasonable doubt. I mean that seriously - they really fail to comprehend that the world is not strictly black and white.

This exactly. They have no clue.

Have either of you been involved with jury trials? I have, for the past twenty plus years, here in the U.S., and am glad to report that the hundreds and hundreds of juries I have observed have been very intelligent about applying the beyond a reasonable doubt burden of proof, and very serious about it too. People who report to jury duty and see the world solely in terms of black and white tend to get weeded out during jury selection.

Also, it is not a misapplication of the reasonable doubt standard for a jury to conclude that a fabricated alibi . . . if they think it is fabricated . . . may indicate consciousness of guilt. Jurors are allowed to consider all evidence provided, no matter who calls the witness, in determining whether the state has carried its burden of proof. (In this case, I agree with the judge and majority of the jurors that the state didn't have enough.)
posted by bearwife at 8:21 PM on November 22, 2010 [6 favorites]

bearwife, from your experience do you think jury populations are representative, or do they tend to skew one way or the other through either selection or simply those that show up?
posted by smoke at 8:23 PM on November 22, 2010

i have a friend who said, is jury duty rewarding as when i give blood? if itis, he said sign me up!
posted by tustinrick at 8:24 PM on November 22, 2010

"Reasonable doubt" is the term that is used when one really wants to say "certainty".

This is fantastically wrong, though I do not doubt your intelligence in the slightest. Certainty would amount to belief beyond all doubt whatsoever, reasonable or otherwise (see, e.g., Descates, et al.). Not trying to pick nits, here, but this is just wrong.
posted by joe lisboa at 8:26 PM on November 22, 2010 [1 favorite]

* Descartes, obviously. Whoo-boy.
posted by joe lisboa at 8:27 PM on November 22, 2010

When thinking about reasonable doubt, it is interesting to consider the earlier and related term "moral certainty." One is explicitly probabilistic while the other refers to other notions of moral comfort with the decision reached.

I'm always fascinated by juror's reports like this. Here in Canada jury deliberations are privileged so we don't have this kind of thing to help us understand what goes on in the jury room.
posted by sfred at 8:30 PM on November 22, 2010

bearwife, from your experience do you think jury populations are representative

No, not truly representative. Jury venires lack the same proportion of people of color and are particularly deficient in people who are poorer. Although I have seen diversity improve greatly over the past two decades. Here are some reasons I think these problems persist: 1) jury summons tend to miss people whose addresses are less stable; 2) people who feel less connected to the "system" seem less likely to respond to their summons, even if they get it and 3) it is a real hardship for people who are paid only for the time they are at work, or on commission, to serve, and they tend to get excused.
posted by bearwife at 8:34 PM on November 22, 2010 [8 favorites]

Thanks bearwife, I find this very interesting, and really appreciate your responses. Do you think that lack of representation is problematic, does it tend to lend juries are particular "character", or are they often quite different? How predictable do you find them?
posted by smoke at 8:37 PM on November 22, 2010

I was a jury foreman when I was a 19 year old college dropout. Like the writer, I am also a huge civics nerd. This, like, respectable, bespectacled 54 year old engineer from GM subtly implied he should be foreman, because no one else wanted to, so I said that I wanted to. It would have been too awkward for him to take it, so BAM, foreman.

It was a marijuana case. Sort of. A conspiracy to distribute marijuana, on the girlfriend who lived with the dude, who actually distributed marijuana, and who had escaped to Canada.

One lady on the jury was from a chi-chi suburb, and complained about the poor quality of the dining and shopping options around the courthouse. There were three 40-60 year old automotive engineers. A mechanic who eerily resembled Frederick Douglass. A lady who went to church with my boyfriend at the time. Another young'un. The other people have faded from my memory. The mechanic and the shopper were both advocating for guilty, but I was strongly opposed to a guilty verdict.

I found that having a forceful personality and being willing to speak up went a long way in changing votes. I remember it feeling more like personality dynamics and 'values' mattered more than the cold, hard facts of the case an the law. Is a lawyer sleazy? Does the lady look like she needed the money? Is this guy arguing with me a total jerk or what? Sometimes, it was hard to argue my position of the reasonable doubt threshold not being met, when the mechanic kept creating scenarios never even posited by the prosecution.

Anyway, I'm sure it was very reassuring to the defense attorney when I stood up as the foreman for the verdict reading while wearing green flip flops and a fancy Spongebob Squarepants t-shirt.

Later, the judge for the case came by and gave us a talk that spanned from the Magna Carta to our rendering of the verdict that very afternoon. He tried to involve us in the tradition of democracy and remind us that maintaining a society requires responsibility on the part of its members. He also told us that we made the right choice.

Everyone grudgingly admitted it was a worthwhile experience. Except for me. Because being a foreman on a jury is sweet.
posted by palindromic at 8:37 PM on November 22, 2010 [25 favorites]

Whether or not to present a defense case in a criminal trial is always a big question, and conventional wisdom is that you usually don't want to present a case. The reasoning is that if both sides present a case, juries and judges have trouble not simply deciding deciding which side they think is more believable and ignore the fact that the burdne is on the prosecution to prove their case.

If the defense does not put on any evidence, then I get the final closing argument to the jury. The prosecutor doesn't have the opportunity to rebut what I am saying. She has to anticipate what I am going to say and argue against it before I even say it. That is an extremely valuable advantage to have. It is not one I like to give up unless I feel that putting on evidence will be to the clear advantage of my client. I am not likely to present evidence if it is only to have people say what a good guy my client is. That isn't worth giving up the final argument.

Probably the most important factor in determining whether to put up my client as a witness is whether my client has a record or not. If he has a record, it is not admissible unless he testifies. If he testifies, his record is admissible because it goes to the credibility of my client. If he does not testify, the jury never hears about his record. If I am trying a B&E and my client has a decent story to tell but has four prior B&E convictions, there is a good chance I am not going let him tell his story. Once the jury hears about the four priors, they are not likely to believe a word he says.
posted by flarbuse at 8:39 PM on November 22, 2010 [10 favorites]

Thanks bearwife, I find this very interesting, and really appreciate your responses. Do you think that lack of representation is problematic, does it tend to lend juries are particular "character", or are they often quite different? How predictable do you find them?

I wish we had juries that reflected the community perfectly. We'd have to perfect our summons sending, our followup on response rates, and greatly increase juror pay to get that result -- none of which are affordable options in the current economic climate. Courts are having trouble even staying open each day.

But although juries are not perfectly representative, and each jury, composed as it is of 12 distinct individuals, does seem to have its own character, jury outcomes tend to be quite predictable. Really, if the state doesn't have enough evidence, jurors hang or acquit. Two of the most potent defenses are ID, because jurors dread convicting the wrong man, and self defense.

Also, flarbuse's comments are right on the money about important defense considerations about whether the defendant will testify. (Though I'd add that in the end, though smart ones listen very closely to their counsel, it is the defendant's own call, not his attorney's, whether or not to take the stand.)
posted by bearwife at 8:51 PM on November 22, 2010 [1 favorite]

I was called to jury duty back about ten years ago. It was for a criminal case, and I ended up having a panic attack in the courtroom - I did not want to be the one (well, one of the twelve) to decide if a person was innocent or guilty. What made me so special, to be given that sort of power, that sort of control over someone else's life? To possibly send someone to jail?

The bailiff (or whomever) saw me freaking out, got everyone out of the courtroom (it was just about time for a break), I explained my situation, and was excused.

A few days ago I got another summons in the mail, and I don't feel any differently about it. Just talking about it is making me cringe up and get nervous. My brother-in-law works for the county sheriff as a ballistics expert; I'm hoping that's enough to get me off a criminal case.
posted by Lucinda at 8:56 PM on November 22, 2010

I have all kinds of opinions about this (did the defendant really call to apologize? did the victim really say "I hope I didn’t pick the wrong little dude."? Was the juror obviously biased in the victim's favor? Is it really fair to choose between 0 or 10 years in prison for a 17 year old?) but I really don't think we're getting a full picture of the trial from this single perspective.
posted by simms2k at 9:02 PM on November 22, 2010

I took a class on Plato in university. The professor related a story on being selected for jury duty--or rather, in his case, being peremptorily dismissed by the defense. Shortly afterwards, the prof ran into the lawyer who dismissed him, and asked why. It took the lawyer a minute, but he remembered my prof as one who put "Philosophical Quarterly" on his list of periodicals on the jury questionnaire.

The lawyer said he dismissed the prof because he was "too smart", and that if he hadn't, the prosecution likely would have dismissed him because, if you're too smart, you apparently don't listen to the lawyers. You think you're in a detective novel, you try to figure it all out on your own, and you don't pay any attention to the case being put on by either side. At best you're a wild card; at worst, you come up with your own hare-brained interpretation that totally derails normal jury deliberations where people actually follow the judge's instructions and apply the arguments of the prosecution or the defense.
posted by fatbird at 9:08 PM on November 22, 2010 [13 favorites]

I was an alternate juror on a five-week murder trail last year; even without being able to go into deliberations, it was one of the most intense experiences of my life. Our foreman still emails us all once in a while; he continues to follow the case through its appeals, and keeps us updated.

One juror dropped out on the first day of deliberations; she was pregnant, and had what sounded like a panic attack when she went into the deliberation room. I held my breath as we alternates (there were four of us) were called back, but another alternate was chosen.

I have no idea if we were typical. We spent a lot of time together outside the courtroom, waiting to be called back when the sidebar conferences - which were numerous and often lengthy - were done. We did not talk about the case, ever.

It was a 10-year-old case. I think the defense was genuinely (not theatrically) surprised when the verdict of guilty was returned; the defendant did not take the stand.

Our judge was methodical and firm, but not humorless. And I think we were all a little in love with both our clerk and the court reporter by the end of the trial. Our bailiff was pretty awesome, too.

It was strange to see this process from the inside, after so many years of crime shows. When I read about a murder - particularly high-profile cases, like this one in Connecticut (warning: really disturbing) - I find myself thinking mostly about the people on the jury, and being grateful that I don't have to be one of them.
posted by rtha at 9:16 PM on November 22, 2010

I've been summoned a few times, but absolutely would lose business (and perhaps my entire one-person business if a case was something that required more than a single afternoon) by being a juror. $10 a day doesn't cut it, and clients are absolutely willing to say "uh, we'll use someone else" if you try and tell them you'll be out for a week on jury duty.
posted by maxwelton at 9:18 PM on November 22, 2010

fatbird, your professor's anecdote reminds me of something my Grandpa once told me:

"Never let your boss know that you're smarter than him*, but make sure that your boss' boss knows that you are."

In the case of your professor, though, it seems like a bit of a stretch to assume that intelligence = not playing by the rules.


*I'm pretty sure Grandpa thought "boss" was a gendered noun
posted by jet_manifesto at 9:26 PM on November 22, 2010 [3 favorites]

$10 a day!? You are kidding me! In Australia, I believe you get $20 a day, however, if you suffer monetary loss or expenditure as a results you can apply for an additional $117 per day on top of that $20 per day.

Also employers are legally obligated to keep paying you for jury duty whilst you are away, it's illegal not to if you're a salaried worker.
posted by smoke at 9:27 PM on November 22, 2010

$10 a day does not include meals or tansportation, I don't think.

Employers are NOT obligated here in WA to pay your normal salary (if you are indeed a salaried employee). The better ones do (though, hysterically, nearly every one requires you to remit to them that $10 a day).

Employers, in theory, cannot fire you for serving on a jury...though I have had friends tell me of their employers putting a great deal of pressure on them to not accept jury duty, with unknown consequences if they did.
posted by maxwelton at 9:34 PM on November 22, 2010

In the case of your professor, though, it seems like a bit of a stretch to assume that intelligence = not playing by the rules.

Seems pretty obvious the smarter you are, the more likely you are to question whether or not the rules are a good idea. And when you're on a jury, there are no personal consequences for ignoring them.
posted by delmoi at 10:03 PM on November 22, 2010

Instructions or no, if the punishment is out of scope to the crime I'll be voting not guilty.

Counter-argument: I feel a jury should concern itself with the facts of a case and determining what most likely did or did not happen, not worrying about what the potential sentence might be. The possibility that someone could get a 50 dollar fine or 50 years in prison at the end of a trial does not impact whether or not a crime occurred.

If you want to impact how crimes are punished, vote on mandatory minimum sentence propositions/measures, vote to elect fair judges, lobby to change how a crime is classified, or try to decriminalize it altogether by working within the system.

Ignoring the facts of a case because you personally disagree with how a crime is punished puts your personal bias before the truth of what happened, and ignores what the majority of your state voted on and has agreed to be a reasonable punishment. Who are you to impose your will over the will of the people? That goes against the fundamental principles of democracy and is, dare I say it, un-American.

(Menthol bends to kiss a baby swaddled in an American flag, then flips a switch executing a criminal in an electric chair in the background)
posted by Menthol at 10:09 PM on November 22, 2010 [2 favorites]

I was Juror #6 on a DUI trial, and in the closing arguments, the defense attempted to tell us that the cop was biased against the defendant...

...because the other guys in the car were drunk too, why weren't they arrested?

I had to jam my entire hand in my mouth before I said "Wait, how much is this guy fucking paying you, Einstein? It's too much, whatever it is" and got my ass ejected from the courtroom. I, just, really? That's the trade of the barrister in action these days?

no, rly, wut
posted by fairytale of los angeles at 10:27 PM on November 22, 2010 [1 favorite]

I tried about 20 criminal cases this year, and I wish we had more jurors like this guy. It's amazing how many jurors just don't care, don't understand what's being asked of them, or just plain sleep through a substantial portion of the trial. When speaking with jurors after each trial, I was appalled by how many jurors simply hadn't a clue what was going on. I thought, at least at first, that I was just being a really bad, or at least inexperienced, lawyer. But no, the other lawyers regularly trying cases, both prosecutors and defense counsel, agreed that was pretty much par for the course.
posted by monju_bosatsu at 10:27 PM on November 22, 2010 [1 favorite]

Oh, and I could write pages about the insanity of the particular courthouse I worked in--maybe I'll put that together sometime.
posted by monju_bosatsu at 10:28 PM on November 22, 2010

I was on a jury in 1993 for a murder case that had more twists than a bad episode of "Law & Order", and which I considered trying to sell a L&O script based on - but the whole process made the detectives and prosecutors look so bad, they'd never want it.

The lessons I learned:

Eyewitness testimony is crap, but it's crap most people believe is gold.

Putting somebody on trial for a murder his brother committed is not always a good way to get the real murderer (it may depend on the family's cultural background... or maybe the good brother was scared shitless of the bad brother)

DNA evidence technology in '93 was barely good enough to provide a fairly definitive answer to a geek like me, but I couldn't explain it to more than 1 of the 11 other jurors.

If you're looking for somebody on a jury to REALLY stand up for justice and the rights of the accused, sometimes that person will be a multiple crime VICTIM. I have never admired anybody more than I admired him.

Still, it was like spending three weeks of your life in a TV crime show... and if I'm ever on another jury, it'll be near impossible for me to have anything less than "reasonable doubt" of anything and everything... so I will likely never be allowed on another jury.
posted by oneswellfoop at 10:42 PM on November 22, 2010 [1 favorite]

Employers are NOT obligated here in WA to pay your normal salary (if you are indeed a salaried employee). The better ones do (though, hysterically, nearly every one requires you to remit to them that $10 a day).

I never understood the logic behind this. First, how can the state/county get away with paying a mere $10/day, which is well below minimum wage? And second, how do they expect to assemble an impartial jury this way? I agree with not making employers pay, I mean, you're not actually working for them during that time, so why should they have to pay? But $10 a day? When state minimum wage is $8.55 an hour? How is this legal?

I've served a couple times, and yes they pay mileage if you're outside a certain radius (which I'm not, so no money there), and provide a catered lunch (which was awful). It's bad enough losing a day's wage; if I got stuck with a murder trial or something else that went on for weeks, I'd lose my house! The state (WA) does NOT grant financial hardship exemptions, unless, it seems, you are a single mother. I've tried every time and failed every time. So when I get a summons, I show up and act like a complete asshole. I make it clear that I'm going to vote guilty, because dammit if they're ruining my life like this, someone's going to pay. Which is a shitty thing to do, I know, but I seriously cannot afford to do jury duty. Which sucks, because I think it could be a very interesting experience, especially in a major trial.

It also makes me paranoid, thinking about my chances should I ever find myself in the unfortunate position of having my fate decided by a jury, wondering if these people are just as pissed off as I would be at losing their livelihood and being tossed a measly $10 a day and served a stale lunch.

In all seriousness, how do they get away with this? And how do they think this is a good thing? I have a good friend who works at the county courthouse, and the juries that actually show up and "make it" are predominantly retired well-off white people, who can afford to serve. How is that supposed to be a jury of one's peers, when our local population is so much more diverse?
posted by xedrik at 10:42 PM on November 22, 2010 [6 favorites]

Menthol, you may want to do some reading on America's proud, patriotic history of jury nullification.
posted by darksasami at 12:09 AM on November 23, 2010 [4 favorites]

Menthol, you may want to do some reading on America's proud, patriotic history of jury nullification.

So when a racist white jury acquits a white man for murdering a black man because they don't think the white man should go to prison for that, that's proud and patriotic?
posted by Menthol at 12:16 AM on November 23, 2010

I served on a jury once and thought the whole process was fascinating. I was 18, and the only female on the jury in a trial for indecent exposure. We managed to return a verdict by the end of the day, and I was paid $25. I think he was guilty, but I don't honestly remember--what I remember are snippets of uncomfortable conversation about whether or not this guy was masturbating in public. I'd do it again in a heartbeat, though.
posted by impishoptimist at 1:07 AM on November 23, 2010

More FPPs like this. Seriously, very intriguing reading. If it weren't for the stupidly-meager wage, I'd almost want to volunteer for jury duty after reading this.
posted by Night_owl at 1:18 AM on November 23, 2010

Having just recently done jury service in the UK I found this interesting, unsurprising and frustrating. Because this...

"The judge even told us that he had predicted a hung jury, that the evidence, while convincing, just wasn’t solid enough in either direction."

...should - certainly under British law, have resulted unquestionably in a verdict of not guilty.
posted by Decani at 1:41 AM on November 23, 2010

Ignoring the facts of a case because you personally disagree with how a crime is punished puts your personal bias before the truth of what happened, and ignores what the majority of your state voted on and has agreed to be a reasonable punishment.

That's moronic.

Who are you to impose your will over the will of the people?

The person selected for jury duty. (which so far hasn't happened) Juries are part of the democratic process, there's no moral obligation to participate in something you don't believe is a good idea.
posted by delmoi at 1:53 AM on November 23, 2010 [1 favorite]

...that the evidence, while convincing, just wasn’t solid enough in either direction.

It only needs to be solid in one direction. Why aren't hung juries "not guilty" by default? I'm actually asking.
posted by doublehappy at 2:28 AM on November 23, 2010 [1 favorite]

I find this story rather heartwarming. The jurors did their job and applied the law, and that resulted in some resources being devoted to a kid who sounds like he could use them.

10 out of 12 jurors didn't think there was enoug evidence to be sure he did it and now he has a conviction? I don't share your warmed cockles.
posted by biffa at 3:27 AM on November 23, 2010 [1 favorite]

Menthol : Who are you to impose your will over the will of the people?

Who? The second-to-last protection of a free society against a tyranny of laws.

Jury nullification, plain and simple. It only takes one out of every twelve people to make a reprehensible law totally unenforceable.


That goes against the fundamental principles of democracy and is, dare I say it, un-American.

Then you need to go back to remedial civics class. We don't have a second amendment just because the founding fathers liked hunting. Soap box, ballot box, jury box, ammo box. Apply, in order, as needed.
posted by pla at 3:39 AM on November 23, 2010 [4 favorites]

As another former jury foreman, I want to ask others who've served on a jury what that meant in your jurisdiction. When I served, all that it meant was that I was in seat number one when it came time to pick a foreman and that I was the one that announced the verdict after we'd come to a decision. That's all. I was fairly active in the deliberations, but that would have been the case had I not been the jury foreman.

We also had our share of jurors who didn't give two shits and just wanted to be done with it. They saw which way the wind was blowing and went with it, but that was just two or three of our twelve.
posted by ursus_comiter at 4:16 AM on November 23, 2010

"The lawyer said he dismissed the prof because he was "too smart", and that if he hadn't, the prosecution likely would have dismissed him because, if you're too smart, you apparently don't listen to the lawyers... At best you're a wild card;..."

I have heard the point of a potential juror seeming to be a wild-card, and maybe excused by either prosecution or defense. My buddy at work (engineering firm) says he always wears a jacket and tie to jury duty, and mostly gets excused during the voir dire process because of that.
posted by JimDe at 4:24 AM on November 23, 2010

Soap box, ballot box, jury box, ammo box. Apply, in order, as needed.

If people aren't doing what they tell you to, try and convince them rationally; If that doesn't work, bribe a politician; If that doesn't help, have them arrested; Still no go? Have them shot.
posted by Grangousier at 4:40 AM on November 23, 2010 [1 favorite]

That's moronic... Juries are part of the democratic process, there's no moral obligation to participate in something you don't believe is a good idea.

Then don't participate, refuse to serve on the jury. That's different than serving with intent to subvert the law because you don't agree with it.

[Jury nullification is] The second-to-last protection of a free society against a tyranny of laws.

Who do you think makes these laws, man? We do, either directly or via representative. If most people think a law is unjust, we change it. It takes time, but it happens frequently, and is a FAR better solution than jury nullification, which does nothing to actually change a flawed or unjust law.

Then you need to go back to remedial civics class. We don't have a second amendment just because the founding fathers liked hunting. Soap box, ballot box, jury box, ammo box. Apply, in order, as needed.


And where is jury nullification mentioned anywhere in the Constitution or Bill of Rights? Nowhere? And is, in fact, not protected at all? Hmm.

Jury nullification can be used for good, but it is also the same power that allows a jury to acquit a rapist because the victim a was "asking for it," and can be used to let bigots get away with beating gays, etc.

Should the policeman only enforce the laws he agrees with? Should the ballot counter discard the votes for a candidate they believe is unfit? Shouldn't a jury also leave their personal views behind and simply apply the law as it is written, then fight to change the law outside of the courtroom if they feel it unjust?

(Also, I'm just debating y'all, no need to get all upset or call names).
posted by Menthol at 4:46 AM on November 23, 2010

"A belief is a thought you keep thinking... a conclusion is merely when you stopped."

Uh...this is exactly wrong. A conclusion is a partial sum. You reached the end of the input and that's what you got, but if more input arrives you'll have a new conclusion.

A belief is, by definition, something that input cannot change.
posted by DU at 5:53 AM on November 23, 2010

One of the potential jurors in the jury pool I was in for the murder trial was dismissed because he had been, at various points in his life: a public defender; a prosecutor; a private criminal defense attorney. He told the judge he thought he could be objective about the case itself, but didn't think he'd be able to keep from second-guessing decisions made by the prosecutor or defense attorney (or the judge herself). Other folks were dismissed because they had had relatives who were victims of violent crimes. One guy was dismissed because he was the sole owner of a business (and I suspect because he was so irritating with his blackberry, checking it every three seconds, that the judge figured he would make the rest of us crazy). Other folks were dismissed for reasons unknown.

The foreman was chosen because he'd been a jury foreman before, and because he was a steady, low-key, non-yappy kind of guy.

Our jury was a mix of students and people with jobs; we ranged in age from 20s to 60s; all of us were (of course) citizens, but some of us were immigrants (Russia, Korea, the Philippines); we were black, white, Latino, Asian. We were about evenly divided between male and female. The disparity that was most noticeable to me was that more of us lived in the Richmond or the Sunset than in other parts of the city - I think I was the only one from the Mission, which was where the murder took place. We didn't fill out detailed voir dire forms, as I'd had to do when I'd been called before for civil cases - the forms we filled out were basic name-address-age-education. The detailed questioning came in court, with the attorneys for both sides, and the judge, asking us about prior jury service, experience with crime, police, etc.

Regarding jury nullification: in some (maybe a lot or all - no idea, because I've only ever served on one jury), the jury has no idea what the sentence will be. For a murder charge, you can kind of figure that a guilty verdict will bring a multiyear sentence, but for something like a drug charge, you really can't know.
posted by rtha at 6:20 AM on November 23, 2010

I've served a couple times,

I've been a legal adult for...what....35 years. During that time I've always voted and held a driver's license but never once been called to jury duty.
posted by Secret Life of Gravy at 6:21 AM on November 23, 2010

I've been on jury duty a few times and always enjoyed it. It kills me that so many people see it as a burden to be avoided. It's one of the few times when you can actually take an active part in "the system".

If something ever happens and I find myself on trial, I hope that the jury consists of people who are engaged and interested and not just twelve poor schlubs who couldn't get out of it and would rather be elsewhere.
posted by Legomancer at 6:38 AM on November 23, 2010

To me, the most important thing in this blog post was the crappy police work, probably because who cares what one poor black person does to another?

From what I've seen, the jury system, while it has problems, mostly works. Sloppy police work, though, is really causing problems.
posted by QIbHom at 7:20 AM on November 23, 2010

Menthol wrote: "Should the policeman only enforce the laws he agrees with? Should the ballot counter discard the votes for a candidate they believe is unfit? Shouldn't a jury also leave their personal views behind and simply apply the law as it is written, then fight to change the law outside of the courtroom if they feel it unjust?"

That defeats the purpose of a jury, which is a check on the state's power to criminally sanction a person. A jury has the unlimited right to decide whatever they like, even if it flies in the face of reason. Ideally, that decision should be made solely on the basis of whether the prosecution proves their case. Sometimes, the decision is made because the jurors are racist or sexist or whateverist. It's one of the costs of living in a society where the government doesn't get to decide on its own whether to incarcerate you.

I was once summoned for jury duty, but I had moved to a different state, so I didn't end up doing it.
posted by wierdo at 7:26 AM on November 23, 2010 [2 favorites]

My last stint as a juror was fascinating but left me feeling less cheery than this guy.

Defendant and victim (his girlfriend) were both about 60 and mentally ill/retarded. She claimed he'd raped her in her bed one night while her adult kid, brother and friend were asleep in the next room. The defendant said it was consensual (and it had been in the past). She didn't report it to the police for a couple days, during which time he had breakfast with the family, visited once or twice and generally carried on as if nothing bad had happened.

During the trial it came out that he defendant and victim had been dating for around 15 years, but that there was a 5 year separation at some point. The judge didn't let the lawyers discuss this separation.

There was no physical evidence. It wasn't clear that she'd really told him to stop. There were people in the next room who didn't hear anything or even sense that something was amiss the next day. There weren't any threats made. He was sleeping there frequently already. The next morning everyone had breakfast together. The fact that all these people had trouble communicating with each other and with the courtroom didn't help. Everyone in the jury room knew something bad had happened and that this guy was a skeezeball, but it only took a few minutes to decide we couldn't convict him. I was honestly surprised and impressed that no one put up a fight about it. I definitely felt like we'd done the right thing.

After we acquitted him, the judge came in to debrief us. He told us that the 5 year separation was a prison sentence for sexually assaulting an 11 year old boy. The judge was right for not letting us know this little tidbit, since it's pretty hard to see more than a pedophile when you hear that, but I'm sure everyone on the jury still feels like they let a rapist walk.

I've got jury duty next Monday. I really hope the next trial I'm on involves a kitten thief or a miniature horse custody battle or someone suing for getting licked by puppies.
posted by pjaust at 7:29 AM on November 23, 2010 [2 favorites]

She refused, said that she didn’t have to share her reasons, that she just knew he was guilty.

I want to shake this lady. I know her type and she infuriates me from afar.
posted by morganannie at 7:46 AM on November 23, 2010

Who do you think makes these laws, man? We do, either directly or via representative. If most people think a law is unjust, we change it.

Why assume that 'we' are good decision makers? That's the obvious problem with your proposal. Just because "we" decide something doesn't make it a good idea.
posted by delmoi at 7:49 AM on November 23, 2010

I did not want to be the one (well, one of the twelve) to decide if a person was innocent or guilty.

You're not deciding if the person is innocent or guilty; you're not even deciding if the person did it or not. You're deciding if the prosecutor proved the person was guilty.
posted by kirkaracha at 8:19 AM on November 23, 2010 [3 favorites]

Interesting to read this post and comments just before I have to report for jury duty for the first time in many years. I have a lot to think about if I get called.
posted by immlass at 8:23 AM on November 23, 2010

The most memorable part of my experience on a jury was when we decided to each write what we thought the verdict should be. It was eleven guilty and one not guilty on the major charge. The woman who had written not guilty seemed surprised for a moment and then said "Ok" and changed her vote instantly.
posted by callmejay at 8:34 AM on November 23, 2010

one immigrant presumably thought that domestic violence was the natural order of things

Yeah. It's a good job native-born Americans don't have cultural prejudices that might lead them to unpleasant and unsupportable beliefs.

Oh.

To be fair, infinitewindow, I can appreciate that maybe that just came out sounding bad. But it still sounds bad.
posted by howfar at 8:41 AM on November 23, 2010

"I really hope the next trial I'm on involves a kitten thief"

Re-enactment of the arrest.
posted by Dipsomaniac at 9:18 AM on November 23, 2010

I was on a jury for a DUI and the defendant didn't testify, and I was surprised at what a big deal it was for some of the other jurors. They also made a big deal about the fact that the defendant hadn't offered his explanation for the events until three months before the trial, when his arrest had taken place almost a year prior. Only after the trial did we find out that the charges weren't filed until around three months before the trial.

We ended up finding the kid not guilty because the prosecution simply couldn't prove its case. I felt bad for the prosecutor, though she didn't stay for the verdict nor for the question and answer session afterwards. The defense attorney did, as did her boss (who came in for the verdict), and I don't know if that's the usual thing, but it'd seem fairly humiliating if my boss went and asked a bunch of people why I failed every time I did.
posted by klangklangston at 9:38 AM on November 23, 2010

I did mock trial in high school, and always thought it would be both cool and my civic duty to serve on a jury. Never been called. *sigh*
posted by wenestvedt at 9:51 AM on November 23, 2010

A couple of questions for the lawyers out there...

conventional wisdom is that you usually don't want to present a case

Is it implicit in that thinking that most of the time the defense wouldn't have a very believable case to present anyway? I've never been a juror myself, but my guess is that if no defense case was presented, I'd probably assume that they didn't have a plausible story to tell.

It is probably true that despite that assumption, absent any other information, all that I'd be left to think about is whether the prosecution case was established beyond reasonable doubt or not.

Apparently, once the prosecution realized that there was a hung jury, they became nervous that the tide would turn

From the account given, it sounds like there certainly wasn't going to be a guilty verdict from that jury on that evidence. Which leads me to wonder why the defense would accept the plea bargain that was reached. Any thoughts?
posted by philipy at 10:20 AM on November 23, 2010

I've been called a couple of times but it's always been pretty boring around here. There aren't many criminal cases, mostly civil, and often they get settled the morning the trial is supposed to start. So the state brings in 200 jurors, because there are 5 cases on the docket, and then only one goes to trial. They just dismiss people throughout the day without even interviewing them. A waste of time, even if you are "excited to do your civic duty".
posted by smackfu at 10:30 AM on November 23, 2010

My HS Math Professor's jury selection story, in total.

"Mr. Thibodeaux, it says here that you teach mathematics."
"That's correct."
"Tell me, is it hard to prove something?"
"Oh yes, it's very hard."
"We would like to thank and excuse Mr. Thibodeaux."
posted by persona at 2:41 PM on November 23, 2010 [21 favorites]

She refused, said that she didn’t have to share her reasons, that she just knew he was guilty.

I want to shake this lady. I know her type and she infuriates me from afar.

Me too. I'm probably biased by my guilty pleasure (48 Hours Mystery, Dateline, etc.), but it seems like far too often, a juror explains his/her "guilty" vote by saying something like, "I just knowed by the way he looked at the witness that he done it, and my mind was made up."

Which has made me seriously consider whether, if I were tried for a crime I did not commit, waiving my right to a jury trial wouldn't be a bad idea. Seriously, I'd be interested to know.
posted by Rykey at 3:01 PM on November 23, 2010

...and by "waiving my right to a jury trial," I mean opting for a single judge to make a ruling instead.
posted by Rykey at 3:03 PM on November 23, 2010

In my town, they don't excuse people for being professors, for having PhD's, for being lawyers, etc. There are just too many of them, apparently, in the permanent residents of this college town. I know professors who have served on multiple juries.

On the other hand, my husband's experience:
Assistant DA: "[Mr. G], we went to law school together, isn't that right?"
[Mr. G]: "That's right."
Defense attorney: "Dismissed!"

I can't sit without increasing, eventually incapacitating pain, so I can't serve. I always thought it was something that good citizens should do from time to time, and never planned to try to get out of it if called. Disappointing, because I figure someone who's been accused of something should at least have one person on the jury who isn't resentful of being there. But now I simply physically can't.
posted by galadriel at 3:41 PM on November 23, 2010

callmejay wrote: "The most memorable part of my experience on a jury was when we decided to each write what we thought the verdict should be. It was eleven guilty and one not guilty on the major charge. The woman who had written not guilty seemed surprised for a moment and then said "Ok" and changed her vote instantly."

That's terribly depressing. Not because your jury convicted, but because there was (apparently) no discussion about why she felt the way she did.
posted by wierdo at 10:28 PM on November 23, 2010

Good point wierdo. I got the impression that she didn't really have reasoning of any kind behind her vote, but we should have asked.
posted by callmejay at 6:37 AM on November 24, 2010

Menthol : If most people think a law is unjust, we change it. It takes time, but it happens frequently, and is a FAR better solution than jury nullification

I happen to believe our "leaders" have fallen so far out of touch with what We The People consider right and wrong that they wouldn't know a bad law unless it ended up putting their own kids on death row. So in that context, I would say nullification accomplishes two things - One, it sends a message when for some inexplicable reason, unpopular-law-X has a near zero conviction rate (I've heard that this worked as a major factor in the revocation of prohibition - Though I've also heard arguments to the contrary, so take that as you will); And two, it can keep innocent people out of a cage while a glacial system comes to terms with its mistakes.


And where is jury nullification mentioned anywhere in the Constitution or Bill of Rights? Nowhere? And is, in fact, not protected at all? Hmm.

It comes implicit with having a jury in the first place - Why on Earth would we ever want laymen to decide on the winner of an argument in a language with only a superficial resemblance to English? Why do we even have a separate prosecution and defense, at great expense to both sides? A panel of judges or lawyers could far more efficiently and effectively weigh the available evidence against the relevant laws.

Or to put that another way - Would you rather have me make your computer work; or have me debate the merits of rebooting your router in a conference call with a gentleman from Bangalore, and a panel of a dozen average Joes listening in with the responsibility of actually implementing a fix based on their interpretation of the call?


Jury nullification can be used for good, but it is also the same power that allows a jury to acquit a rapist because the victim a was "asking for it," and can be used to let bigots get away with beating gays, etc.

"it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death". Thus spake Maimonides a millennium ago, and it holds every bit as true today.


Should the policeman only enforce the laws he agrees with?

To a degree, yes. Does it serve justice to arrest every 8YO that pockets a pack of gum without paying? Without some degree of personal discretion, you end up with RoboCop, doling out on-the-spot death sentences for escalations of routine traffic stops into conspiracy to commit mass vehicular homicide.

At the same time, they have a job to do, and should try to do so to the best of their ability. Sometimes that might mean enforcing laws they don't like.


Should the ballot counter discard the votes for a candidate they believe is unfit?

Based on this past election (*cought*Murkowski*cough*), they seem to do exactly that. ;)
But again, they have a job to do, and don't have much discretion in how they do it.

Also, I'm just debating y'all, no need to get all upset or call names

Sorry, I didn't really mean that personally, more as a snarky aside. I need to work to control my tone, some days.
posted by pla at 5:26 PM on November 24, 2010

Unfortunately for the rest of us, the federal government is coming to realize that "trial by jury" is inconvenient for the purposes of locking people up without actually proving that they're guilty.
posted by muddgirl at 7:33 PM on November 24, 2010

I meant to say that the feds are coming to agree with pla about the uselessness of trial by jury.
posted by muddgirl at 7:34 PM on November 24, 2010

I was an alternate on a murder trial in L.A. some years back, a night time gang shooting from a car. The public defender had her young client show up with a shaved head revealing extensive gang tattoos on his skull on the last day of trial, but she did not explicitly explain that this was an attempted haircut defense similar to that in the case being discussed.

The shooter had been ID'd--by a cowering witness hiding behind a bus bunch who only saw an upper face above a muzzle flash--as definitely having had a shaved head. But the suspect worked in a hotel where he was not allowed to wear his hair shaved close. Had the PD explained to the jury "this can't be the shooter, because at the time of the killing his boss testified he had hair long enough to hide any tattoos" he would likely have been found not guilty. There was no direct physical evidence, and the police investigation was sloppy.

But the jurors were bored civil servants, and eager to reach a verdict. I assume the skull full of gang tattoos convinced them of something black, and they convicted. The only positive spin I could put on it was thinking that if the kid had gone back to the neighborhood, the victims' friends might have retaliated.

A couple years later I saw the PD walking down the street by the courthouse, and without even realizing where I knew her from, was enraged. Those who cannot afford to pay for their defense deserve so much better than what they sometimes get.
posted by Scram at 9:30 PM on November 25, 2010

Not every state pays a mere $10 a day. Here's a (rather outdated) list of remunerations for jury duty. I looked up a half dozen of the states and the values in the table were true, so it's at least a somewhat reliable guide for a ballpark figure.
posted by stoneweaver at 7:10 PM on November 26, 2010

On the subject of pay, this is what I read about pay for my upcoming jury service in Travis County (Austin TX):

Depending upon the court to which you are assigned, you may be paid $6.00 per day that you are going through jury selection. If selected, you will be paid $40.00 per day beginning the second day of service.

There's also an option to donate your pay to various charitable funds (victim compensation, child welfare, etc.), which is nice if you don't need the money. In Texas jury pay varies by county. I don't know what the current pay is in Houston, but it used to be $6.00 for the first day and $5.50 of that would cover your parking. There's no visitor/juror parking at the downtown Austin courthouse; they recommend you take the bus.
posted by immlass at 8:36 PM on November 26, 2010