26 May 2003




Punishing juries for getting it wrong. Here's a man with a lack of understanding of how things operate in the real world. At first I thought that this was some sort of "Modest Proposal" but after a little consideration I must - sadly - conclude that he is serious.
"Of course, the goal is not to get jurors to convict everyone they think is probably guilty; it’s to get them to convict everyone they think has been proved guilty beyond a reasonable doubt. But it’s easy to adjust incentives to get whatever results you want. If there’s a general sense that juries are too quick to convict, we can either raise the penalty for a false conviction or lower the penalty for a false acquittal. If they’re too quick to acquit, do the opposite. In fact, that’s one of the hallmarks of a good incentive system — it’s easily tweaked when you want it to work a little differently."

Anyone who's tried a criminal case (at least in Virginia) will quickly realize how bad an idea this is. By and large, judges do not come with a great deal of experience from the criminal defense bar. They seem to come from three backgrounds. A significant minority come from the the prosecutor's office with the natural tendencies that accrue to someone from that background. Another group comes from the Attorney General's office where they have spent their career defending the government. A majority seem to come from civil lawyers with some fairly significant political pull. The last two are often scary in court as they lean heavily on the prosecutors to provide them with knowledge and understanding of criminal law. Even those vanishing few with a background defending people's rights tend to change once they have been on the bench for a while. Seeing hundreds, or thousands, of obviously guilty defendants year after year, all offering variants on the same defense, would cause skepticism in the hardiest of souls.

Anyone who's done this kind of work has watched a judge look bewildered or shake his head at a jury verdict for a defendant. In some rare occaisions overt hostility, which had been focused solely on the defense team, manifests itself in the treatment of the errant jury.
"In the end, the jury returned a verdict of not guilty for everyone. [Judge] Hoffman was furious and when one of the marshals reported that after the jury had been discharged he had found a newspaper in the jury room containing an article favorable to [the Defendant], he ordered the U.S. attorney to investigate how it got there. When one of the jurors admitted he had brought in the papaer, Hoffman held him in contempt of court. Thereafter, when he sentenced the juror to a substantial term of imprisonment and the juror's wife cried out in protest, he sent her to prison as well." Trial and Error, John Tucker p. 42.

Now, picture a system wherein that judge doesn't even have to manufacture an excuse, he has the inherent power to punish a jury which "gets it wrong." Does anyone seriously believe that the punishment would be visited upon juries which find for the prosecution in any way near the number of times it would be upon those juries who set a disfavored defendant free? Keep in mind that all defendants are disfavored (I long ago gave up my delusions that "innocent until proven guilty" is believed by anyone in the court but the defendant and jury).

Would I like to see more attentive juries? Sure. But the proffered solution is not the path. Possible solutions: make professionals serve, remove peremptory strikes, give jurors a tablet and pens and tell them to take notes, have jurors choose a foreman at the beginning of the trial and let them adjourn after direct and cross of each witness to determine if they have any questions.

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