Some good news for jury independence. Three terrific rulings in three weeks. I don’t know if this is an indication of anything significant, but I’ll take it.
First, some background. The Sixth Amendment to the Constitution says that in all criminal prosecutions, the accused shall enjoy trial by jury. The government has undermined that right in several ways. First, it uses plea bargaining tactics [.pdf] to deter the accused from exercising the right to trial. Second, the government tries to stack juries with people who will not question the law. A prosecutor, for example, might ask a pool of potential jurors, “Anyone here have a problem with the war on drugs?” After a show of hands, the prosecutor judge will then say something like, “Thank you for your candor. Everyone who raised their hand is excused from jury service today.” Third, after a jury is finally selected, the jurors will be told that they may not vote their conscience. They must instead “follow the law” as it is explained by the trial judge. Jurors are told that their job is to determine “the facts” — did the defendant initiate the attack or was she acting in self-defense, as she claims? Sometimes that neat separation between the facts and the law breaks down, such as when a prosecutor wants to enforce a ban on handguns. There is no factual dispute for the jury to decide when the defendant openly admits “Yes, I brandished a handgun. But it was only to stop that guy from raping me.” We rarely see such cases because prosecutors are clever enough to dispose of the case with a plea bargain. “Ma’am, we understand you might have been raped, but what you did was against the law. We don’t want you to go to prison for two years in these circumstances. If you waive your right to a trial and plead guilty, we’re prepared to offer you five hours of community service, okay?”
The government uses these tactics every day and the courts have ruled that they are perfectly legal and constitutional. This was not always the case. Our second president, John Adams, said “it is not only the juror’s right, but his duty, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” American law has drifted so far from that idea, that if I put John Adams’s statement on a sign and walked outside a criminal courthouse, I might get arrested if I were to try and hold my ground against overzealous “security personnel” from the courthouse. Still, Cato publishes articles and books that make the case that the modern legal trend is wrongheaded. Prominent academics, most notably, Amar, Green, and Reynolds, seem to agree, but the opposing view remains fairly dominant.
That’s the bad news. Now to the good news. Under modern law, it is still verboten for a trial judge to issue a direct order to the jury, such as “We will take a short recess now and I want the jury to retire and then return with a guilty verdict in twenty minutes.” Similarly, it is also illegal for a judge accomplish the same end, but after-the-fact by overturning an acquittal and declaring the defendant “guilty.” Those legal propositions are not disputed, but from time to time courts must decide cases where there is an allegation that the jury was “coerced” in some way. The good news is that over the past few weeks there have been three such rulings and in each instance, the court came to the defense of jury independence.
Here’s a quick and dirty summary.