Guilty, but Can't Be Prosecuted

The January 6th Committee is properly turning over every rock to show that the former president is guilty of planning and preparing for the insurrection on Jan. 6th. But no matter how much they show his guilt - and make no mistake, he is clearly guilty - he can never be successfully prosecuted. Ever. And any unsuccessful prosecution - even if it just ends in a mistrial - will be trumpeted by the former president as vindication. 

The idea that, even in Washington, D.C., a jury can be found that will unanimously agree to convict is nil. Any prosecution is doomed from the start. The best that can be hoped for would be a hung jury. Americans are far too polarized to agree unanimously that anything done by the former president was illegal.

The Committee is thus properly reaching out to the court of public opinion. If they can peel away 10-20 percent of republicans, they can keep Tweety from ever winning re-election. That's the best they can hope for in his divided, fact-resistant environment we find ourselves in.

Random Thoughts on a Changing World...

It will be curious to see whether the Supreme Court's reversal of Roe v. Wade will result in pro-choice advocates embracing jury nullification to oppose prosecutions and civil lawsuits against those receiving or performing abortion services.

It would take very little to make the laws absolutely unenforceable, considering that the majority of the country opposes these laws. 

I think this is the real reason the former President will never be indicted - Merrick Garland is smart enough to know that only one of his supporters on a jury will prevent any conviction, and that a hung jury will be interpreted by MAGA-world as total and absolute vindication.  

I really hope that someone brings a case concerning jury nullification to the present court, as I think it would put them in quite a conundrum. The original intent in 1789 was clearly that juries be allowed to judge the law – in fact, Samuel Chase was impeached for attempting to deprive a jury of its power to judge the law as well as the fact. In his defense, he denied that he had or would ever try to do so. If you believe in original intent, you cannot consistently try to deny the prerogative of jurors to nullify – and as jurors in 1789 were aware of that right, you can’t consistently deny the right of the defense to argue that theory to the jurors.

Reconsidering the Criminal Justice System

Americans are losing faith in the American criminal justice system. In 2001 Lawrence W. Sherman, then Director of the Fels Center of Government at the University of Pennsylvania, reported that "The System Is More Fair and Effective Than Ever." However, by mid 2021, Gallup reported that only 20% of Americans had substantial faith in the criminal justice system -- and that the number of people with such confidence was falling. Are things objectively getting better or worse? And does the low esteem the criminal justice system is held in have an effect on crime rates, safety, and social unrest? 

There are certainly an abundance of reasons to distrust American criminal justice. We claim it to be the "best in the world," but it is hard to reconcile this with America's prison industry leviathan. America leads the world not just in the number of prisoners, but also in the incarceration rate itself. Louis Brandeis wrote in the October 15, 1912 Cleveland Plain Dealer that "[i]f we desire respect for the law, we must first make the law respectable." Is a legal system that incarcerates nearly 1% of its adult citizenry, predominantly those who are either poor or belonging to a racial or ethnic minority. 

Moreover, we have known for many years that the police have been heavily -- and intentionally --  infiltrated by white supremacists. Is that respectable? We've seen numerous police officers killing or assaulting unarmed black men. Is that respectable?

More than a third of US prisoners are mentally ill. Prisons and jails are the largest mental health care providers in America. Is that respectable?

The entire argument about "defunding the police" has been used as a political cudgel by the right, but the real goal of the movement isn't about eliminating the existence of police but about shifting a portion of their budget to provide other, community based, supportive interventions such as emergency mental health care, crisis workers, etc. Not every emergency is best resolved by the use of force. One would shudder to think of sending police, instead of fireman, to put out fires through the use of force and authority. Why do we think it is rational to send police instead of mental health care professionals to assist those whose family members are having a psychiatric crisis? Do we expect the mentally ill to passively submit to authority? 

Policing in America suffers from excessive militarization and an "us v. them" mentality that causes police to use a "maximum force" approach instead of conflict resolution and de-escalation. Is this respectable? 

America has a long way to go before its criminal justice system is once again respectable. We must root out any hint of racism from our police departments. Police officers must feel free to turn in the corrupt, racist, and violent officers in their departments- instead of being punished for doing so. If they can not police their own, they should not be allowed to police the rest of us. We must admit that any cop that knows of another cop employing excess force and not reporting it is committing dereliction of duty, and thus is himself a bad cop. There is no neutral ground here.

Such large cultural changes in American policing are, at this point, pipe dreams - as the attacks on re-directing law enforcement budgets towards force-free alternatives demonstrates. Numerous reforms are necessary, yet too often we see half-hearted, symbolic reforms paraded as if they were some sort of solution to long-standing problems in police culture.

No reform is possible until American police are willing to admit that, too often, cops are in fact the "bad guys" themselves. Instead, when the excess, unnecessary, and often racist violence committed by law enforcement is exposed, police officials simply become defensive and try to change to subject. Arrogance is often accompanied by a lack of introspection. In this case, however, such bull-headedness is often fatal for members the very communities the officers are supposed to protect, and who pay their salaries. 

And that doesn't even begin to address the disaster that is our criminal court system, our sentencing systems, or in many cases even the laws themselves. Those are for another post.

I'm back, Bitches!!!

Alright, this blog has been dormant for over ten years. However, as Facebook has become too damned toxic to deal with, I've decided to resurrect it instead.

I will still discuss juries. But I plan on opining on any damned thing that crosses my mind. Some might be legal. Some might be political. Some might be cultural. Some might be personal.

The world is falling apart. Russia is committing unprecedented war crimes in Eastern Europe. The US finally has a serious president again, but at this time of peril, Americans are blaming him for things that he has no control over such as the price of oil. When the world desperately needs adult guidance, the American government is now up to the task - but the American people are not.

Nearly half of Americans have refused a life-saving vaccine not for medical, but for political reasons. They follow a small-minded tyrant and hypocrite who himself took the vaccine as soon as he could. They are asleep and delusional.

We still have millions of people in jails and prisons across the United States, and perhaps only ten percent of them belong there because they pose a risk to society. The rest are just eating up tax dollars and suffering for the sake of suffering, so that we can show how big and tough we are. The other way of looking at this is that we are cowards, so afraid of inanimate substances and petty crimes that we are willing to go bankrupt to lock people in cages and destroy lives, and not willing to do anything to change our culture so that so many people are not forced into lives of crime. It's sad, sick, and unsustainable. We should do better.

Climate change remains real regardless of what the petrochemical industry wants us to think. By the end of this century, people worldwide will die from its effects. SO long as we feel safe TODAY, though, we simply do not care. Let our grandkids sort it out. We want our V8s and we want to turn our AC down to 68 in the summer. Dammit.

Insecurity, depression, anxiety, fear and hostility are the primary influences on world events. Make no mistake about it - we are all connected. And the war in Ukraine will raise the price of energy and food not just there, not just here, but internationally. Those who live in poorer countries, like Sri Lanka, will be left to rot. This will include millions of the Russian people, whose leader caused this chaos. I realize that blog readers want to come here for answers. At this point, I don't have any. I have concerns, not answers. Deal with it.

Testing the waters...

I'm thinking of blogging again.

I'm inspired by Mark Bennett's Defending People, and I do believe that everyone is entitled to an opinion -- mine. So perhaps I should start sharing it again.

However, I intend to be an occasional blogger -- when something gets my goat, I'll come out of my yurt and yak about it.

Being from Harris County, Texas, my goat gets gotten frequently. Injustices tend to outnumber instances of justice. Yes, Justice is a vague term. But not so vague as some would think. And injustice is as concrete as a heart attack when it hits you.

Ambrose Bierce wrote that injustice is "A burden which of all those that we load upon others and carry ourselves is lightest in the hands and heaviest upon the back." A pretty apt description of sending someone to prison for a minor, or victimless, offense. It is easily done and difficult to endure. How is it that we can dispense cruel punishments so easily?

Perhaps it is fear of the other -- after all, defendants are mostly young, poor, and often minority, hardly the demographic of those who show up for jury duty.

Perhaps it is the fact that we live in a crowded world, and know so few of our neighbors, so it is easy to objectify strangers. Jurors feel like they are dealing with abstractions, not flesh and blood people, much less people JUST LIKE THEM.

Perhaps it is the fact that we feel no personal responsibility for our actions unless we can be punished for them. The ghost of Stanley Milgram continues to haunt our jury rooms.

Have Americans simply become this jaded -- that we think of prison as the first tool of choice to deal with social problems?

In Harris County, prosecutors routinely ask every member of the jury whether the purpose of punishment, in a criminal case, is rehabilitation or retribution. And most people answer the latter.

I have yet to hear a juror stand up and say what a stupid question this is. After all, the death penalty cannot exist for purposes of rehabilitation. And nobody thinks a teenaged shoplifter needs to do hard time. Whether the purpose is one or the other must be decided, by the jury (assuming jury punishment, as in Texas), on a case by case basis.

Yet instead of asking an INTELLIGENT question ("what would determine whether retribution or rehabilitation is the appropriate goal of punishment in this case?") the state resorts to a one-size-fits-all question, seeking jurors who will impose a one-size-fits-all punishment.

And defense lawyers, by and large, let them get away with it. Which, of course, is also stupid.

An Interesting Conversation on Rights, Powers, and Lies

Mark Bennett, a Houston criminal defense attorney, recently started a conversation on State's Rights. His position is that the State has no rights; the State has powers. While his examination of the subject has some flaws (he claims rights cannot be maintained using force, a statement I find questionable: if someone seeks to kill me, do I not have a right to defend myself, thereby maintaining my right to live through violent self-defense?) I think Mark touches on a very real issue, that I like to call the rights/powers dichotomy. It arises quite often in law. It is said that someone has a power to breach a contract, but not the right to do so (hence, they can be sued and forced to pay damages should they exercise their power.)

Clearly, not all powers are rightfully exercised. Others may be. Does the rightful exercise of a power imply, or even prove, the existence of a right?

Specifically, do jurors have rights - or just powers? It is commonly said that jurors have the power, but not the right, to nullify. But is there a substantive difference between a lawfully exercised power and a right? If so, what is this difference? Or is it just a way of saying that we consider some lawfully exercised powers to be on a higher plane than others, so we call them rights -- even though their exercise is indistinguishable?

In other words, is the rights/powers dichotomy a real dichotomy, or a false dichotomy? A false dichotomy exists when a debater attempts to position two things as opposites (either a right or a power) when they are not incompatible. In fact, are rights not powerful things?

The distinction between juror rights and juror powers, viz a viz jury nullification, is used to justify instructing jurors that the do not have this prerogative, and for denying lawyers a chance to voir dire jurors on it or mention it in argument. This does not affect the rights or powers of the jurors, however: it only affects the rights or powers of litigants and their lawyers.

Jurors do not lose any lawful options in the jury box merely because they have not been informed of them: it merely leaves those who were not already aware of their existence in a state of ignorance regarding them. The rights that have been denied are those of the litigants, who no longer have the legal right to demand an instruction on the jury's prerogative, or the right to inform the jurors of the right during voir dire or argument. Nor do they have the power to do so, if they proceed in doing so they may be disciplined by the Court or a mistrial declared.

The real issue, as I see it, is when the ignorance of jurors is replaced with lies. Jurors do retain the prerogative to nullify: they cannot be punished for their verdict, and a substantial number of jurors do decide not to convict on extra-legal grounds. When a trial court tells a jury that they cannot do this, then the jury is being positively lied to. It is hard to respect a legal system that depends on positively lying to jurors in order to maintain control over their verdict.

Merely because Courts have the power to lie to jurors does not mean they have the right to do so. Until the 1970's, most juries in the US were instructed that if the State proved its case, they may convict, but that if they had a reasonable doubt, they must acquit. This is sufficient to acknowledge the independence of the jurors, without raising a distractive debate about jury nullification. It is honest.

Definitional Shift -- Jury Reform Pt. II

It is amazing what the passage of time can do to the meaning of a word. Consider, for example, the simple word "jury." Article III, Sec. 2, the Sixth Amendment, and the Seventh Amendment all guarantee Americans the right to a jury in certain trial situations. And, clearly, the Founders had something specific in mind when they made these guarantees.

A panel of governmental employees wouldn't qualify as a jury. Or would it?
A panel of inquisitors certainly wouldn't qualify as a jury. Or would it?
A computer bank could not qualify as a jury. Or would it?

Of course, the answers to these questions all depend on what a jury IS. Yet, strangely, the jury reformers do not care what the historical meaning and role of a jury is. They want to write on a blank slate to create the "ideal" jury. Or at least, the closest to an "ideal" jury they believe they can get away with.

During the October ABA Jury Symposium, I asked the members of a panel chaired by Professor Stephan Landsman, a jury historian and member of the ABA jury reform committee, whether the committee had considered historical norms in assessing their suggested reforms. The answer was resoundingly no. As a matter of fact, even Prof. Landsman seemed surprised anyone asked such a question. Yet to me, it goes to the very heart of the matter.

Clearly, the Founders had something specific in mind when they thought of trial by jury. They did not think of any panel of any number of people selected by any procedure deemed expedient. They had an image of an ideal jury in their mind - yet instead of attempting to stay true to this image, to perfect it, and to debate what it may have been from the historical record, we have allowed social scientists to play with the system, to re-invent it according to the results of their research.

I should point out that little of this research is even peer reviewed.

I will posit the following concepts, for consideration by readers:

1. Many of the problems with the jury system (lack of respect for juries, failure of people summonsed to jury duty to appear for service, dissatisfaction among jurors) are the fruits of past reforms. Through the years we have disempowered and "dumbed down" the jury. We have limited what can be argued to the jury, micromanaged them, and found every possible excuse (at least on the civil side) to take cases away from them. We have taken many turns in the wrong direction - so instead of reversing course, we have decided to turn to social scientists to blaze a new trail (new trial?). This untried, untested new trial is likely to be far bumpier than the experts are predicting. After all, remember the experts who described the war in Iraq as a "cakewalk?" This is a far more serious proposition, however, than a mere war: this is the American Jury System, a cornerstone of American democracy.

2. The American Jury System has existed for over 230 years. There is a lengthy historical record that can be studied to see what procedures have been applied over the decades, and how jurors have responded to them. We can see what worked, what didn't, what changed, and why. Must we not avail ourselves of that record as fully as possible before resorting to blind faith in the social scientists who would re-define the historical jury system nearly out of existence?

3. If we allow the jury system to be dramatically re-defined now, will it be re-re-defined in another five or ten years? How many dramatic re-definitions can it survive? Is a call for specialized training on the horizon? A call for a Juror's Union, or perhaps aptitude tests? Perhaps a "jury" should merely be a panel of government employees - Judges Light - or perhaps they should be specially trained fact-finders. Perhaps a computer connected to a polygraph machine (to test the witnesses) could be called the JURY (Justice User Resource for YOU). The computer could generate the questions AND test the witnesses, and be programmed with the law. (With a little work it could impose electric shock therapy to both punish AND rehabilitate criminals on the spot, as legal error would be impossible...)

Now, suggestion 3 ended on a creative note, but if anyone believes no social scientists or political scientists can be found who would applaud such a machine, they are incredibly naive. IF the sole job of a jury is to find the TRUTH, as the social scientist consensus runs, then there is no need for a lay jury of average citizens. A machine can do a much better job...

The ABA JURY PROJECT is headed down a slope that is far steeper and far more slippery than those intimately involved in it will admit - because they refuse to look at either their own fallibility or the fallibility of their disciplines. Let us be a little more humble. Let us trust in the wisdom of the Founders, and not in the wisdom of the statisticians, and let us return to their version of the Jury.

It is, after all, our legacy. We have failed in our duty to protect it, but the fact that it is tarnished is not enough to destroy its value. It can be polished right back up to its original condition and operation, with no more work -- and with far better results -- than those involved in its reinvention.