L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 121, May 14, 2001
All They Can Do is Stomp Their Feet and say 'We Don't Like It'
by Vin Suprynowicz
Special to TLE
The courts this week took another stab at gutting the traditional power of jurors to refuse to enforce bad or stupid laws, as the seven-member California Supreme Court unanimously backed a Santa Clara County judge's actions in dismissing a juror who expressed the opinion in the jury room that statutory rape shouldn't be a crime.
"Under California's 1998 'snitch' rule," Associated Press writer David Kravets reports, "judges routinely order jurors to inform the court if a juror is not applying the law during deliberations. That is what happened in the case decided Monday."
An alternate juror stepped in to replace the uncooperative member of the panel -- depriving defendant Arasheik Williams of his Sixth Amendment right to a randomly selected jury of his peers -- and the panel, thus reorganized and stacked in favor of conviction by the county judge, duly convicted young Mr. Williams of having sex with a willing 15-year-old girl (the court made no mention of whether the defendant was offered the option of marrying the lass), whereupon the culprit was sentenced to six years in a California state prison, where he will doubtless get plenty more sex, albeit neither consensual nor heterosexual. (The court did not comment on whether this will be considered "statutory" or not.)
"Jury nullification is contrary to our ideal of equal justice for all and permits both the prosecution's case and the defendant's fate to depend upon the whims of a particular jury, rather than upon the equal application of settled rules of law," Chief Justice Ronald M. George wrote for the seven San Francisco lawyer-politicians.
Which is nonsense on several counts.
First, the Sixth Amendment means precisely that a defendant can be acquitted based on "the whims of a particular jury." What else does the dishonored Mr. George think it means? That the government gets to keep trying jury after jury, no matter how many choose to acquit?
Second, no jury can convict a defendant of any charge beyond what prosecutors have presented and the judge has allowed -- any such conviction would be instantly set aside by the court. So this so-called "high court's" stated concern for "the defendant's fate" is pure doggerel. Fully-informed juries can displease the courts only by acquitting when both prosecutors (the one in front of the bench, and the black-robed one behind the bench) would rather cut another notch in their barrels -- they can err only on the side of mercy.
But more significantly, the D.C. Court of Appeals confirmed in 1972, in one of the biggest Vietnam draft-dodger cases, that our modern juries today still retain "an unreviewable and irreversible power ... to acquit in disregard of the instructions on the law given by the trial judge. The pages of history shine upon instances of the jury's exercise of its prerogative to disregard instructions of the judge; for instance, acquittals under the fugitive slave law."
I called Houston appellate attorney Clay Conrad, author of the 1998 book Jury Nullification: The Evolution of a Doctrine (Carolina Academic Press) to ask about this latest pathetic attempt by the professional judges to dilute the traditional rights and powers of the increasingly inconvenient citizen jury.
"This is one area where the courts blunder and stumble and can't figure out what to do," Conrad told me. "All they can do is stomp their feet and say 'We don't like it.' This is one more case where the decision is almost all pure dicta -- dicta is legalese for any language in the decision that doesn't actually affect the opinion -- because there's nothing the court can do to affect what jurors can and cannot do."
In this case, the county judge asked jurors to snitch on one another if any of them started a discussion of whether the law made sense, I pointed out. Now that a state supreme court has upheld that precedent, what's to stop the judge from stationing a bailiff inside the jury room to supervise deliberations ... or simply walking in and sitting down, announcing "I'm going to be your foreman, to make sure you do this right"?
"That's against federal law," Conrad replied. "This dates back to the 1960s, when the book The American Jury was being written. The Chicago Jury Project actually put microphones in a jury room. Congress was so outraged they passed a law that no one can stick their noses in a jury room during deliberations, you can't go in there.
"The judge can't go in, so they're reduced to using fellow jurors as snitches, which is what they did here. But now that you know the other jurors can snitch on you, what's that going to do? Jurors will be less willing to raise a discussion of whether the law is appropriate, but they're still free to just say, 'I refuse to convict; I still think there's a reasonable doubt.' So since there can't be a forthright discussion of the possible reasons to acquit, the chances grow that you'll have hung juries."
Isn't that almost as good for defendants? Few prosecutors will continue to re-try cases where juries are hung time after time.
"What we'll see now are more hung juries, and then their next target will be the unanimous jury rule," Conrad responded. "The Constitution lets them go down to 9-to-3, so that's what you can expect them to start pushing next."
Is there any chance these judges are right -- that jurors aren't supposed to judge the law?
"The way we interpret what trial-by-jury means is by the common law, what the practice was at the time of the Founders," Conrad replied. "And the history is unassailable, that this is a power the jury had, the history is just rock solid on this. ... Indiana and Maryland still have it in their state constitutions, that juries have the right 'to judge the law as well as the facts.' "
Only two states?
"Georgia and Oregon have it in their constitutions as well, but the courts have interpreted it to death, they've just interpreted it away. And then a lot of states are in the situation we have here in Texas. The Texas Constitution says 'In libel cases the jury shall have the right to decide the law as well as the facts, as in other cases.' But the state courts have simply ruled that's no longer relevant, because it's an anachronism. Can you imagine? They've ruled their own constitution is 'an anachronism.' "
Nearly as anachronistic, I suppose, as the words of John Jay, first Chief Justice of the United States, who said in charging the jury in Georgia vs. Brailsford, 1794, "You [the jurors] have, nevertheless, a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy."
Thank goodness our judges, like those in California, no longer have to take an oath of office binding them to "protect and defend" a Constitution written by such men as John Jay. Think how inconvenient that would be.