The Criminal Lawyer

In more than a dozen years of conducting and observing felony jury trials, at both the state and federal level, we’ve seen enough jury nullification to know it’s a real phenomenon, and not merely anecdotal.  We’ve seen jurors refuse to convict the most obviously guilty defendant, because they felt sorry for her, or because they didn’t want to put another young black man in prison, or because they had some random political or religious agenda.  We’ve seen jurors vote to convict, even though they had reasonable doubt, because it was obvious to them that the guy must have committed the crime, even if the evidence wasn’t really there.

In other words, jurors’ assessment of the evidence often has nothing to do with their actual vote on guilt or innocence.  They take it on themselves to act as a “conscience of the community,” and frustrate the whole point of their role.  (For more on how our jury system defeats justice, see our previous post here.)

The purpose of a trial jury is nothing more nor less than to decide the official version of the facts.  That’s all.  Society needs to make a decision about what to do in this case.

The decision is purely formulaic, in criminal law: if and only if we have facts A, B and C, then the defendant has committed crime X.  If fact B is missing, crime X did not happen.  It’s up to the jury to decide whether A, B and C really are what happened.  Whatever the jury decides, that is the official version of the facts.  The system can now take whatever action is appropriate under those facts, and both the parties and society can turn the page and get on with their lives.

[Truth — that’s “Truth” with a capital “T” — is not the goal.  It’s (more…)

The news is full of reports today about the hung jury in the Blagojevich trial — they found the governor guilty of a single count of lying to federal agents something like five years ago, and hung 11-1 in favor of conviction on the remaining counts.  All kinds of pontificators are pontificating about why this happened.  Scott Turow, for example, says it’s because corporations have too much freedom to contribute to political campaigns, so bribery becomes perceived as the norm. 

That’s a bit of a stretch.  It’s hardly likely that the jurors were considering such things as the corrupting consequences of the extension of First Amendment protections to corporate campaign contributions.  Like most commentors, Turow seems to be slapping his own politics on top of a more prosaic observation — that to some, the governor’s actions just don’t seem criminal.  This observation, without all the other nonsense attached to it, was actually quite astute.  According to the jury foreman, the holdout appears to have thought Blagojevich’s actions were “just talk,” and nothing criminal.

From what we’ve seen in the newspapers, that’s not an insane perspective here.  It sure reads as if Blagojevich was just thinking out loud sometimes, or bouncing stupid ideas off people that never got carried out.  And the forman says the other jurors respected the holdout’s right to her position here.  It doesn’t seem like an unprincipled, irrational vote.

But other reports highlight a different take on the holdout’s position.  Another juror is on record saying that the holdout wanted more clear-cut evidence, tantamount to a videotape of a murder, before she’d ever have convicted.  And if, as is likely, the holdout was Jo Ann Chiakulas, then she had already made up her mind weeks beforehand that the governor was innocent.

Both takes ring true to us, and are not mutually exclusive.  It seems probable that the holdout had decided weeks ago, after the close of the prosecution’s case, that the government hadn’t given her that whatever-it-is she would have needed to vote to convict.  Jurors vote to acquit all the time, in even the most solid rock-crusher cases, and the most common reason given is that “there just wasn’t enough evidence,” or they “needed more.” 

Jurors can never articulate what “more” they would have needed.  That’s because this is humanspeak for (more…)