The Proper Function of A Jury In America

What's the proper function of a jury in the American criminal justice system?

If you listen to some people — me, for instance — it's to act as a bulwark between the overwhelming power of the state and the individual, to hold the government to its burden of proving guilt beyond a reasonable doubt to a (nominally) neutral body.

That's not a particularly popular view. Expressed or not, the more popular view is that the role of a jury is to delivery a guilty verdict when the government accuses someone of a crime.

I give you two examples of this viewpoint from the past week:

In Ohio, Judge Amy Salerno berated a jury for returning a non guilty verdict in a case where she believed a guilty verdict was called for.

Salerno criticized the jurors in front of other people in the courtroom, according to the complaints. She also suggested that there would be another opportunity to convict the defendant because he was charged in another case in front of her, according to the jurors.

Salerno later sort of apologized, saying she was "surprised" by the verdict:

In an interview yesterday, Salerno said the verdict had surprised her; she echoed a printed statement she provided to The Dispatch that read: “(I) failed to contain my surprise at this particular meeting (with jurors).”

A jury's failure to convict is often a surprise to people who believe that a jury's role is to convict.

Meanwhile, at 'In These Times," Richard Baker explains why jurors are simultaneously stupid and pseudo-intellectual, and how this explains jurors frustrating justice by returning not guilty verdicts in cases like People v. Zimmerman:

The defense attorneys work their magic by convincing the jurors of their own sophistication. The jurors are lead to believe that there is much more to the case than most people realize and only a select few people with their intellectual complexity can see through it all.

Jurors, Baker feels, fail to see the simple truth that anyone should grasp: the state has accused someone, the state has claimed a set of facts, the defendant is guilty.

I don't have the stomach today to fisk this excrescence. Fortunately Gideon has done it for us.

Last 5 posts by Ken White

Comments

  1. Felsi says

    Many years ago I worked with a very arrogant man. He was on a jury, and I asked him about the experience. Much to my surprise he began talking about how thoughtful and careful the other jurors were, and how impressed he was.
    That is what we should all wish for. Thought and care.

  2. Davey says

    Fortunately, jurors are a part of a society that is starting to be disturbed at prosecutorial excesses. My legal-to-oilfield translation book tells me that "not guilty" can sometimes mean "this is bullsh*t"

  3. assemblerhead says

    If you have ever been falsely accused of something, you are real sensitive to a "railroading".

    Its good that some juries are figuring this out.

  4. Pete says

    "Lawyers are trained in theatrics, illusion and magic."

    Shit, if I'd known that I would have gone to law school.

  5. ZarroTsu says

    the state has accused someone, the state has claimed a set of facts, the defendant is guilty.

    Like an episode of SpongeBob, only less sophisticated.

  6. Aelfric says

    Is the judge in Ohio not able to set aside the verdict? (I am in fact a lawyer, though Ohio law is not in my ken.) More likely, she's not willing to put herself on the line by doing so. Sadly, that's not all that surprising.

  7. Ryan K says

    A major part of a trial is deciding exactly what the jury gets to see. Often what's reported in the news was not seen by the jury, or they saw things that weren't reported.

    When I was in college I served on a jury. The case was drug trafficking, and the defendant was basically a poor schmo who'd been put up to the act by a slime ball who turned out to be a govt informant. His crime was taking drugs above a certain volume from a car at one side of a parking lot, walking across the lot, and handing it into a car on the other side. We heard the evidence, we were told the law, and basically, the facts as we determined them to be true, fit the defininition of the crime as it was explained to us. I felt terrible about it, I really didn't want to way he was guilty. I still feel bad, especially now that I understand the concept of "jury nullification."

    But what the experience taught me was, unless you're sitting in that jury box, seeing exactly what that jury is seeing, no more, no less (aka the admissible evidence), and hearing the jury instructions exactly as read to the jury, then you really aren't in a position to say the jury got it right or wrong.

  8. Ryan says

    I'm going to steal inspiration from Winston Churchill when I say the following:

    The adversarial system's jury is the worst system for determining criminal guilt or not guilt in the world, except for all the others.

    Juries are the only people who are truly not invested in the case AND see and hear all the evidence. They are generally owed a level of deference because of that.

  9. En Passant says

    Aelfric wrote Aug 9, 2013 @9:44 am:

    Is the judge in Ohio not able to set aside the verdict? (I am in fact a lawyer, though Ohio law is not in my ken.) More likely, she's not willing to put herself on the line by doing so. Sadly, that's not all that surprising.

    Can a judge anywhere in the USA JNOV an NG verdict? I've never heard of such a rule. I've heard of JNOV on a guilty verdict, but it's subject to appeal by prosecution.

  10. En Passant says

    Ryan K wrote Aug 9, 2013 @9:46 am:

    But what the experience taught me was, unless you're sitting in that jury box, seeing exactly what that jury is seeing, no more, no less (aka the admissible evidence), and hearing the jury instructions exactly as read to the jury, then you really aren't in a position to say the jury got it right or wrong.

    If your gut says "the prosecution's case is bushllit but it appears to be the law, at least as the judge told us the law", then focus on the testimony presented. Focus hard.

    Did a witness briefly flash a smug smirk when he gave some particularly damning bit of testimony? Maybe he's smirking because he's lying.

    Did he testify to something inherently difficult to believe (say, that the 100 pound defendant made a "furtive movement" to attack his jackboot)? Did any other prosecution witnesses do something similar?

    Did any prosecution witness give you any reason whatever to disbelieve that he was not telling the truth, the whole truth and nothing but the truth?

    If so, a juror is free to conclude that the witness lied about whatever fact that they testified to.

    If you conclude that a witness lied about one material fact, you are free to conclude that they lied about every material fact they testified to. A judge's jury instructions are likely to include that one.

    You don't need to invoke "jury nullification", ie: that the law is wrong or wrongly applied. You simply conclude that the prosecution presented insufficient credible evidence for you to believe that the defendant is guilty beyond a reasonable doubt.

  11. Matthew Cline says

    From the Richard Baker on the Zimmerman trial:

    No one knows what happened during that time nor does it make any difference. [emphasis added]

    Then Baker's problem is with the law that the jury applied, not the jury applying that law. Unless he's saying that the jury should have done something like a reverse Jury Nullification, and decided to hand down a guilty verdict based on what they jury thought the law should be.

  12. En Passant says

    Aelfric wrote Aug 9, 2013 @10:14 am:

    En Passant–See above. Chalk it up to a civil attorney in Friday mode!

    Done! Chalk my reply up to insufficient caffeine to inspire me to refresh fast moving comments before clicking the "submit comment" button.

  13. says

    >No one knows what happened during that time…

    Not true. Zimmerman knows. (He testified.) Trayvon knows (but is not available to testify.) God knows (and reserves the right to judge a new trial at any time.)

    … nor does it make any difference.
    It doesn't make any difference what happened? [that defies any conceivable concept of justice!]
    It doesn't make any difference that nobody knows what happened? [that defies any conceivable concept of judging!]

    What was his point?
    I personally suspect it was pure racism–for some people, "White" person (i.e. non-sub-saharan-african descent) is always the oppressor, "black" person always the innocent victim. In other words, inherited total depravity everywhere except Africa.

  14. Dan Weber says

    “I try to treat everyone courteously,” Salerno said yesterday. “If someone found it offensive, I am sorry.

    Perfect non-apology right there.

  15. En Passant says

    Stephen Hutcheson wrote Aug 9, 2013 @10:46 am:

    In other words, inherited total depravity everywhere except Africa.

    Nice broadside blast from the Canons of Dort.

  16. Curmudgeonly Ex-Clerk says

    "Lawyers are trained in theatrics, illusion and magic."

    True fact: The University of Texas School of Law issues graduates a wizard's cloak, cap, and wand upon graduation. Whenever the law or facts are against me, I just take off my cap and pull out a rabbit. Presto: Justice! Never fails to impress judges, juries, or the ladies.

  17. Moebius Street says

    I once served as a petit juror. It was a really trivial matter — at least to me, but the very fact that we were in court demonstrates that it was significant to *somebody*.

    What really struck me was the bad job that the attorneys seemed to be doing. There were lines of questioning that seemed to be leading somewhere, and if they'd just get through it all there might be pieces that would fit together to make the plaintiff's case. But his attorney just didn't follow through on those lines, so the pieces didn't fit together, so I couldn't find for the plaintiff.

    My conclusion was that either the plaintiff's attorney was incompetent, or he also felt that the case was trivial and not worth any effort.

  18. manybellsdown says

    "Lawyers are trained in theatrics, illusion and magic."

    My last time sitting on a jury, the defense attorney did the biggest smoke and mirrors act I have ever seen, comparing the "burden of proof" we needed to find her client guilty to the amount of evidence the state needs to take away your children. Think of the CHILDREN!! On top of that, our jury foreman acted like she was the lead in a production of "12 Angry Men", determined to convince us of the defendant's innocence – even though he'd demonstrably lied at least once.

    All this for a drunk driving case with no injuries and one dented vehicle. I hope I don't have to do that again soon.

  19. Mike says

    I tend to feel that "the jury is a bulwark between the overwhelming power of the state and the individual is an over-correction, albeit preferable to the counter-position you identify (if you're going to miss, miss low). To me, analogizing the jury as a bulwark against the state invites (as distinct from suggests or asserts) the interpretation that a guilty verdict is to some degree a failure.

    Rather, I see the standard of proof (beyond a reasonable doubt) as the counter-balance to the state's power. The jury is merely neutral, tasked only with applying the facts to the standard of proof and making a determination.

    But again, aside from that nit, I think the system would be much improved if your viewpoint prevailed over the stated alternative.

  20. Mark says

    Seriously, if you look at Michael Peterson's case that was documented on Jean-Xavier de Lestrade's Death on the Staircase you realize how much power the state wields over the fate of the accused. I highly recommend that documentary.

    In Michael Peterson's case it took 10 years for him to get a new trial after being convicted of murdering his wife. And only because there was a journalistic investigation that questioned the some of the state analysis.

  21. James Pollock says

    I don't see the evidence to conclude that Judge Salerno believes that the purpose of the jury is to deliver a guilty verdict. Rather, I see evidence that this is a case where the judge, having access to more evidence than the jury had available, was able to determine guilt while the jury, having access to less evidence, was not able to.
    (Berating the jury was wrong, but it doesn't support the inference Ken makes, as I look at it.)

  22. ZarroTsu says

    How and why would the Judge have access to "more evidence" than the Jury? More importantly, how and why would that matter?

  23. Ken in NJ says

    It's pretty obvious that Salerno expected this jury to return a guilty verdict in this case. But using that single data point to conclude that she believes the purpose of juries in general is to return guilty verdicts is just silly.

  24. James Pollock says

    "How and why would the Judge have access to "more evidence" than the Jury?"
    She was hearing two different cases involving the same defendant and victim. She heard the evidence in both. The berated jury heard evidence from only one. In that one, the prosecution didn't present enough evidence to meet its burden of proof. However, the judge, aware of the evidence from the other case, DID have enough evidence.

    "More importantly, how and why would that matter?"
    Duh?

  25. ZarroTsu says

    "More importantly, how and why would that matter?"
    Duh?

    I mean how would it matter from the stance of court. IANAL, but it's my understanding that it isn't up to the judge whether or not the defendant is found guilty. If the jury believes, with the evidence against and for the defendant, that the defendant isn't guilty, it really don't matter what the judge knows or believes is correct. If it did, there wouldn't be a jury in the first place.

    Perhaps if the judge were more self-controlled, they'd ask an individual or group of the jury, after the trial is over, what motivated them to rule a not-guilty charge and hear what evidence they missed or what was weighed in the defendant's favor that the judge did not.

    It's one thing to understand a difference in opinion, and another thing to voice it. So to pre-empt any follow-up post saying that's exactly what I've done just now, how is "Duh?" intended to convey an answer to my question?

  26. Trevor says

    I once witnessed a trial where the judge began by addressing the jury, telling them that the reason he and the entire gallery stood up when they entered the room was out of respect for them and their duty. It was a short speech, but had a great impact on me.

    It also seems like a perspective that would greatly help Judge Salerno.

  27. says

    Lawyers are trained in theatrics, illusion, and magic.

    That's what they call it in public.

    According to my sources, your typical lawyer graduates from Law School with the powers of an 11th level Illusionist* and a 7th level Cleric*. And then they can't find jobs. What happens next? That's right, it's all "well I'll just erect a tower and raise a bunch of undead" or "I'll go to the next village down and start bargining for people's souls to power dark rituals".

    There is a crisis on our hands, people.

    * Them's first edition levels

  28. Richard says

    Manybellsdown: In most states, the burden of proof to remove children from their parents is less than to convict of a criminal offense.

  29. barry says

    Lawyers are trained in theatrics, illusion, and magic

    Don't forget hypnosis. I was on a jury once and the prosecutor would occasionally stare into our eyes and repeat things three times in an even steady voice, suggesting how we should think.

    But once one juror notices and tells the others, it doesn't work as well (but you're still not allowed to giggle). The judge and lawyers get judged every bit as harshly as the accused.

  30. Corporal Lint says

    According to my sources, your typical lawyer graduates from Law School with the powers of an 11th level Illusionist* and a 7th level Cleric*.

    It's been a while, but doesn't the unique multiclass mean that the typical lawyer is a gnome?

  31. ShelbyC says

    "Rather, I see evidence that this is a case where the judge, having access to more evidence than the jury had available, was able to determine guilt while the jury, having access to less evidence, was not able to."

    It's not the jury's job to determine guilt, it's the jury's job to weigh the evidence presented to them and determine if the state proved its case beyond a reasonable doubt. The jury, almost by definition, can't get it wrong.

  32. barry says

    Judge Amy Salerno berated a jury for returning a non guilty verdict in a case where she believed a guilty verdict was called for.

    Doesn't this just prove that a judge can pretend to ignore certain 'evidence', but they can't really? (like not being able to unwatch a youtube video). ie. they cannot double-guess a jury because their snort has already been tainted.

  33. 205guy says

    Corporal Lint is winning at the internets today. I'm not even a D&D fan, but I can appreciate it when referenced effectively for a put-down.

  34. C. S. P. Schofield says

    In reading this post and the comments it occurs to me that the Jury is one of the vestiges of the idea that the common citizen is the Sovereign. Just as in Medieval High Justice, the agents of the State present their position to the Sovereign in the hopes of persuading him to act in their favor, and the Sovereign, while theoretically constrained by custom, is free to make pretty much any decision He desires.

    Naturally, the agents of the State dislike this, as they view the job of the Sovereign to be to nod assent to whatever his wise advisors have decided. Which is why we, the Sovereign People, should reintroduce the idea of beheading servants of the State who have acted against the interests of the Sovereign.

  35. says

    "Unless he's saying that the jury should have done something like a reverse Jury Nullification, and decided to hand down a guilty verdict based on what they jury thought the law should be."

    That was pretty much my take on what he wanted — Zimmerman was obviously a bad dude, therefore, no matter what the law says, the jury should have seen to it that he suffers. You know, like any good lynch mob would do.

  36. Curmudgeonly Ex-Clerk says

    Corporal Lint:

    Lawyers must must be a unique "race" for purposes of first edition, because no stated race is permitted to be multi-class illusionist/cleric. Gnomes are not permitted to be clerics.

    (That's right, I'm stepping all over a good joke to issue a D&D rules correction. Unleash the ridicule; I deserve it.)

  37. James Pollock says

    "I mean how would it matter from the stance of court. IANAL, but it's my understanding that it isn't up to the judge whether or not the defendant is found guilty. If the jury believes, with the evidence against and for the defendant, that the defendant isn't guilty, it really don't matter what the judge knows or believes is correct."

    You are correct but have wandered off on a tangent. Whether or not the jury reached the correct verdict is also not what's under discussion here. The question is whether or not this incident proves that this judge believes that the role of the jury is to return a guilty verdict.
    Making such an assessment based on one incident is risky. Does the judge's improper act (berating the jury) indicate that there is a pattern of disrespect for jury actions, or does it indicate that in THIS particular case, the judge was so convinced of the defendant's guilt that she was startled by a "not-guilty" verdict? I think signs point to the latter. (And again, this does NOT excuse the judge generally, but does suggest that Ken's inference is not supported.)

    "Perhaps if the judge were more self-controlled, they'd ask an individual or group of the jury, after the trial is over, what motivated them to rule a not-guilty charge and hear what evidence they missed or what was weighed in the defendant's favor that the judge did not."
    As a general rule, jury deliberations are privileged and no officer of the court may inquire of them.

    " how is "Duh?" intended to convey an answer to my question?"
    As I said before, you wandered off on a tangent.
    To recap:
    Ken's post suggests that berating a jury for reaching a "not-guilty" verdict indicates that the judge holds a specific opinion on the role of the jury, that role being to return a guilty verdict.
    I counter-argue that it may instead indicate that the judge, having seen evidence not presented to the jury, has seen enough evidence to be thoroughly convinced of the guilt of the defendant, even though the jury was not completely convinced. This can happen in any trial if evidence has been suppressed, but in this case was possible because of two simultaneous trials involving the same defendant and the same victim (I'm not sure why they weren't consolidated into one trial, the reporter in the news article Ken linked to didn't address that topic).
    So, if the judge could have legitimately been convinced by weight of evidence that the defendant was in fact guilty, then she could have been surprised by a "not-guilty" verdict, and thus, her act, although improper, did not and does not indicate that she holds the opinion on the role of the jury that Ken has suggested. (It doesn't DISPROVE it, either… more evidence would be required to determine the question either way… but this is more a problem for the presiding judge and or the voters in that jurisdiction to resolve.)

    So, while fact that the judge disagrees with the jurors over the guilt of the defendant has no bearing whatsoever on the resolution of the case [this is the tangent you went down], it is entirely relevant to the question of whether her act of berating the jury indicates her general opinion with regard to the role of the jury in criminal proceedings.

  38. James Pollock says

    "It's not the jury's job to determine guilt, it's the jury's job to weigh the evidence presented to them and determine if the state proved its case beyond a reasonable doubt. The jury, almost by definition, can't get it wrong."

    That's some world-class hair-splitting. However, I think it fails on the argument that "returning a guilty or not-guilty verdict" can be summarized as "determining the defendant's guilt".

    If we suppose a hypothetically perfect justice system, which has 100% accuracy, the difference disappears; thus in our slightly imperfect system the difference between "determining the defendant's guilt" and "weighing the evidence presented to determine if the state has met its burden of proof" is a rounding error.

  39. Steven H. says

    @Stephen Hutchinson

    ">No one knows what happened during that time…

    Not true. Zimmerman knows. (He testified.) "

    No, actually, Zimmerman didn't testify.

  40. James Pollock says

    "Doesn't this just prove that a judge can pretend to ignore certain 'evidence', but they can't really? (like not being able to unwatch a youtube video). ie. they cannot double-guess a jury because their snort has already been tainted."

    It would if the difference was that the judge has seen evidence that was suppressed and thus not seen by the jury. In this case, the judge was presiding over an entirely separate trial, involving the same defendant and the same victim, and saw the evidence presented in both. Presumably, the prosecutor could have presented more evidence in this case but chose not to, in the interests of economy (apparently, the act was caught on tape and the tape was presented as evidence, but was insufficient for the jury.)

  41. barry says

    In this case, the judge was presiding over an entirely separate trial, involving the same defendant and the same victim, and saw the evidence presented in both.

    Even moreso !

  42. nlp says

    @ZarroTsu
    How and why would the Judge have access to "more evidence" than the Jury?

    In a number (or possibly most) trials there is evidence that is not allowed. For one reason or another, lawyers on both sides may object to certain information, and it is kept out of the trial. If you've ever followed a case before the actual start of the trial, there will be days, and even months, of discussion regarding which witnesses will be allowed to testify, what they will be allowed to testify about (a witness may be allowed to testify as to what happened, but not what he was thinking about it).

    There are plenty of other examples; documents whose origin is questionable, pieces of evidence that may have been moved by the police, and so on. The Bulger case was preceded by months of discussion between the judge and the lawyers regarding what could be admitted and what could not.

    I don't have any trouble believing that the judge in the Ohio case saw evidence that the jury did not see, and had realized the guy probably was, indeed, guilty.

  43. says

    I take the opposite position from the majority — the obligation of a juror is to vote "not guilty" unless they are convinced of guilt. Indeed, we should question why there are so many guilty verdicts returned, not why the relative rare not guilty verdicts happen.

  44. Trebuchet says

    I was on a couple of municipal court trials some years ago and my major conclusion was that the attorneys on both sides were pretty much incompetent.

    One was a case of two black guys, one very drunk, who got in a brawl with a bunch of off-duty police officers, who were also drunk. The black guys were of course the only ones charged. I was mentally screaming at the defense attorney (probably a public defender) to ask the cops "At what point did you identify yourself as a police officer?", because it was pretty obvious they hadn't. He never did. The prosecutor, meanwhile, spent most of his time hammering on inconsistencies in a timeline between the defendants and various witnesses — which had no bearing on the case at all. Who looks at their watch in the middle of a brawl? I was, on the other hand, pretty impressed with both the judge and my fellow jurors.

    The other case was a simple DUI of a young woman after a company Christmas party. The only defense put forth by her attorney was that the breath analysis machine must have been wrong, because she said she had only one beer. Had he actually provided any evidence to that effect, we might have considered it. He didn't. The arresting officer, by the way, was one of those involved in the brawl!

    A few months later the state Supreme Court threw out every conviction ever based on that machine!

    All that's a little off-topic I suppose. But if you want an example of someone who thinks the jury's job is to convict every defendant, take Nancy Grace. Please.

  45. MelK says

    > …should reintroduce the idea of beheading servants of the State who have acted against the interests of the Sovereign.

    What? Shooting's too good for them? I suppose I'd better warn my elite team from Hinkley, Oswald and Booth that the deal's off.

  46. Trent says

    Steven,

    Though you are technically correct that Zimmerman didn't testify, given the extent of taped interviews shown to the Jury its perfectly correct that he told the jury his side of the story through the taped police interviews and was able to do so without having to face cross examination.

    So though he didn't actually testify he certainly did convey his side of events to the jury by direct statement. Which in my opinion he did testify, he just wasn't cross examined.

  47. James Pollock says

    "I don't have any trouble believing that the judge in the Ohio case saw evidence that the jury did not see, and had realized the guy probably was, indeed, guilty."
    I think what normally happens is that although the judge may have seen inadmissible evidence, they remember what was inadmissible and what wasn't, so they know/remember what evidence the jury has seen. In this case, there were two different trials, so the judge may have heard evidence presented in one that had bearing on the other… the the jury never heard it, and that's why the judge was surprised… she thought they'd heard evidence that they hadn't. That's all speculation on my part, but the "two trials with the same defendant and victim at the same time" has GOT to be rare… usually they'd have been combined into one proceeding for judicial economy.

  48. C. S. P. Schofield says

    MelK,

    I suggested beheading on the grounds that, in most cases, it would miss all their vital spots, making it a lesser punishment that shooting.

  49. grouch says

    [The proper function of a jury is] to act as a bulwark between the overwhelming power of the state and the individual, to hold the government to its burden of proving guilt beyond a reasonable doubt to a (nominally) neutral body.

    I've been called a few times, but never served on a jury. The nearest I got to being selected was for a case involving possession of marijuana.

    After several prospective jurors were dismissed due to business or family ties to the accused, the prosecutor went into a little speech and question time. He started off making reference to some tv show ("CSI", I think) to laughingly caution us not to expect some incontrovertible scientific proof of guilt beyond all doubt within 60 minutes, less commercials. He went on and on about burden of proof and television dramas not being real life. He described, with laughter, a typical episode complete with characters.

    My thoughts during that speech: "I hope you have more than campaign speeches because that man is as innocent as a newborn babe right now. Why are you wasting our time campaigning to be everyone's best friend here?"

    He then asked the group if there was anyone who objected to the state's drug laws. No one spoke up. Perhaps some thought as I did, "This is not the forum for such a discussion and you're being too damned vague and non-specific, anyway." It's my opinion that many of our laws regarding drugs have more to do with campaigns, hysteria and market protection than protection of citizens, but I wasn't there to promote my views. The prosecutor again came across as a campaigning politician.

    The defense attorney kept his speech short and to the point; he simply said that man is innocent until he [pointing to the prosecutor] can prove otherwise and then asked if anyone thought that his client was probably guilty since he had been arrested and accused. No one spoke up.

    The judge then directed a clerk to read a list of names and the rest of us were dismissed. I didn't discern any particular pattern to the names. I don't know what the outcome of that case was, nor even the specific charges.

    If that was a typical voir dire, it was too long for what it accomplished (the judge's opening questions regarding family, friend or business relationships with the accused were the only significant ones asked).

    If that was a typical prosecutor, I'd sooner trust a tv preacher or infomercial hawker. He just managed to remind me that I or any of my friends or neighbors could face the full might of the State at any time. Best we watch each other's back lest we become a rung on somebody's career ladder.

  50. Xenocles says

    If the prosecutor didn't present evidence that pointed to the defendant's guilt he is the one who deserves the scolding, not the jury. If the judge is angry that the jury didn't act on evidence they didn't see, she is a fool.

  51. says

    Bugger Jury nullification…. I demand IDIOT Nullification!!!!

    oh and you lot get trained in " trained in theatrics, illusion and magic" over there?

    I'm shocked.. shocked I tells ya.. I demand equality for worldwide lawyers in magicks!

  52. Sami says

    I… what?

    The problem with the Zimmerman trial, to my not-there, not-a-lawyer, not-even-American awareness, was not the jury or the verdict. The problem was partly the prosecution, but mostly the law.

    As far as I can tell, the law, as it stands, essentially declares Last Man Standing Is Innocent. So long as you succeed in killing someone, you can then claim you feared for your life and therefore be innocent of murder.

    Should Zimmerman have been guilty of a crime? Yes, definitely.

    Was he? Apparently not. But the problem is with the law itself.

  53. James Pollock says

    "If the prosecutor didn't present evidence that pointed to the defendant's guilt he is the one who deserves the scolding"
    Yes.
    Of course, the prosecutor in every case must balance between not putting on enough evidence. which results in acquittal, and putting on too much evidence which wastes scarce resources. In this case, there was video evidence of the not-assault, which would seem to be pretty damning evidence, but in this case was not enough to convince the jury.

    "If the judge is angry that the jury didn't act on evidence they didn't see, she is a fool."
    Or just a little confused. I'd need to see more of a pattern than a single incident to come to that conclusion, as well. This also is something for the judicial fitness committee and/or the voters of the jurisdiction to examine.

  54. NI says

    Part of the problem is that the jury selection system is designed to ensure that people who distrust the state aren't seated on the jury. Given that reality, it's actually surprising that there are as many not guilty verdicts as there are.

  55. says

    It's not the jury's job to determine guilt, it's the jury's job to weigh the evidence presented to them and determine if the state proved its case beyond a reasonable doubt.

    No, it IS the jury's job to determine guilt (or not)- but the jury must do so based only on the standard of whether the state has proven the case beyond a reasonable doubt.

  56. Ryan says

    @Rhymes with Right

    Indeed, we should question why there are so many guilty verdicts returned, not why the relative rare not guilty verdicts happen.

    If anything, it is evidence that the system is working properly: only those cases where the preponderance of the evidence gathered in the investigation indicates guilt are ever charged and prosecuted.

    The conviction rate *should* be a great deal higher than the acquittal rate; if the opposite is true, far too many people are being inappropriately charged for crimes they did not commit.

    NOTE: I am not asserting that innocent people don't get convicted of crimes under the status quo as we know that innocent people are indeed convicted all the time. However, a high rate of acquittals is indicative of an even wider problem.

  57. grouch says


    Rather, I see the standard of proof (beyond a reasonable doubt) as the counter-balance to the state's power. The jury is merely neutral, tasked only with applying the facts to the standard of proof and making a determination.

    An abacus is neutral. I want hard-headed, independence-loving, contrary, sales-pitch-weary skeptics on the jury who have witnessed or been burned by scams and con-artists. I want fellow citizens who have bitched about government intrusion, incompetence and deception. I want people on the jury who cannot turn off their horror of being themselves wrongly incarcerated and therefore demand proof beyond reasonable doubt for a crime.

    That reasoning implies more than arithmetic. A trial shouldn't be decided by calculating machines.

  58. says

    I take the opposite position from the majority — the obligation of a juror is to vote "not guilty" unless they are convinced of guilt. Indeed, we should question why there are so many guilty verdicts returned, not why the relative rare not guilty verdicts happen.

    That doesn't make any sense. In that mindset it would mean that we are taking to court numerous people who are likely not guilty of any crime at all and running them through the ringer, likely with little to no evidence. The way the system is now people only usually get away with a crime if the prosecutors involved aren't doing their job right / the defense lawyer IS doing his job right. Seeing as how the whole point of the jury is to determine guilt this would, logically, mean that enough evidence is being presented to them for them to pass a guilty verdict.

    Now if they're not doing that job properly by working with the material they are given and not public opinion is another issue entirely and one I'm definitely not going to get into. But I'll say this Casey Anthony and George Zimmerman, both absolutely destroyed in the court of public opinion and likely guilty of at least some sort of crime, walked. So clearly at least the system is doing what it was meant to do – find people not guilty if the evidence isn't given to them.

  59. Anony Mouse says

    It's been a while, but doesn't the unique multiclass mean that the typical lawyer is a gnome?

    Dual-class human.

  60. says

    > Meanwhile, at 'In These Times," Richard Baker explains

    Never heard of the blog before, but I note the incongruity of wanting juries to listen to the state more and thus convict more often, and the blog subtitle "with liberty and justice for all".

    Snort.

    Where's my bottle of vodka?

  61. C. S. P. Schofield says

    Sami,

    You have a point, in certain constrained circumstances. In the Zimmerman case there was a dearth of witnesses; and those that there were (rightly or not) confirmed Zimmerman's story. Further, Zimmerman had injuries consistent with having been, as he claimed, violently attacked. His story was not accepted in a vacuum. Could he have colluded with the witness(s) and faked the injuries? Certainly. But the State failed to prove this, and may not even have suggested it.

  62. says

    "Lawyers are trained in theatrics, illusion and magic."

    And yet, we don't see them performing on America's Got Talent".

    ~EdT.

  63. says

    What Judge Amy should have done, if she was so angered by the jury's conduct in the courtroom, was to find them in contempt, and sentence each one to 1/12th the maximum sentence for the crime they rendered that un-American verdict on. That would have shown them!

    /snark

    ~EdT.

  64. Zack says

    @Sami: The problem with that theory is that Zimmerman didn't use Florida Law or even United States law. He used the version of Self Defense that came from English common law- that lethal force is appropriate when no ability to retreat exists when the lethal force is used.

    All available witnesses confirm that, when he pulled the gun, Zimmerman was underneath Trayvon- and thus had no ability to retreat. Zimmerman could have been in virtually any state in the union, including those who abhor Stand Your Ground, and the outcome would have been the same.

    (To answer the obvious questions that I can think of: Trayvon and anyone else in that situation is not supposed to take the person to the ground and continue beating them there. Once you take the person to the ground, you either run, get to a nearby house or what have you. This could also have been avoided if either one of them talked to the other. And third, you're not supposed to initiate physical contact under any circumstances even if someone is following you- which I believe, and I could be wrong, that the evidence shows Trayvon did.)

    Where Stand Your Ground might apply is in the civil case- but that's another discussion.

  65. En Passant says

    Sami wrote Aug 9, 2013 @10:31 pm:

    … [In the Zimmerman case] The problem was partly the prosecution, but mostly the law.

    As far as I can tell, the law, as it stands, essentially declares Last Man Standing Is Innocent. So long as you succeed in killing someone, you can then claim you feared for your life and therefore be innocent of murder.

    The law does no such thing. The law in that case was that if the jury finds that a reasonable person in Zimmerman's place would believe he was in imminent danger of death or great bodily injury, then jury could rule that the prosecution had not shown beyond reasonable doubt that defendant's act was unjustified.

    Reasonable apprehension or fear of imminent death or great bodily injury, not the mere claim of fear, is a defense to murder or manslaughter.

    One might disagree with the jury's finding of reasonable apprehension or fear, but that is a disagreement with the jury's finding of fact, not disagreement with the law.

    James Pollock wrote Aug 9, 2013 @10:36 pm:

    Of course, the prosecutor in every case must balance between not putting on enough evidence. which results in acquittal, and putting on too much evidence which wastes scarce resources.

    The prosecutor does not need to decide whether he is "putting on too much evidence". The court will decide that for him when defense objects to a proffer of evidence as cumulative.

  66. Andrew S. says

    Ah, the same "In These Times" that wrote an article last month essentially saying that you should support NSA surveillance because the Tea Party doesn't like it. Proud intellectuals over there.

    I read Gideon's takedown, which was good, and just as angry as I'd expect from him. Didn't want to give the In These Times article a click for fear they'd make a fraction of a cent off of advertising revenue from my click.

  67. manybellsdown says

    @Richard – Sure. It was also totally irrelevant to the case, and only brought up in order to provoke an emotional response from the jurors. Hence the smoke and mirrors.

    Although it didn't really work. Most of us were annoyed at her obvious attempt at emotional manipulation.

  68. Chris says

    As far as I can tell, the law, as it stands, essentially declares Last Man Standing Is Innocent. So long as you succeed in killing someone, you can then claim you feared for your life and therefore be innocent of murder.

    I don't really think the fact that it may hard to convict someone when the accused is the only living witness and the forensic evidence is ambiguous can reasonably be described as a problem with the law.

  69. Pickwick says

    Andrew S.:

    In the interest of fairness, I'd like to note that In These Times does print a wide variety of views, not all of which are soul-crushingly stupid. "In Defense of PRISM," the article you mentioned, was followed by a rebuttal: "Actually, If You're a Progressive, You Have To Be Critical of The NSA." The subtitle was "When the government overreaches, the Left may indeed find common cause with some on the Right."

    The Left is seldom monolithic in anything, and that goes for NSA spying as well. Most commonly, I see party-liners, who believe Obama can do no wrong and would do more right if he wasn't hamstrung by a Congress of lunatics and idiots, and people who are rather more inclined to develop their own opinions, who are unequivocally against that kind and level of government intrusion. But we also have our people who think the government planned and executed the 9/11 attacks so that it could start to build up its security apparatus in earnest.

  70. Zack says

    @Pidgewick: As has been noted on this site previously, there's a libertarian/statist (anyone know a more P.C./less hostile term for "statist"?) axis in congress as well as a liberal/conservative axis, even if the former is far less acknowledged than the latter. The vote on the NSA restriction amendment had both parties divided right down the middle in terms of numbers- and Boener and Pelosi were on the same side of the vote.

  71. newsouthzach says

    I was on a jury a few weeks ago for a DWI case. I will admit to being thoroughly unimpressed with all parties involved, save the judge and jury. The prosecutor wasn't even able to get the arresting officer to say that the evidence indicated a >80 percent probability of intoxication (no breathalyzer data), and I was ready to acquit when the State rested. Then the defense proceeded to muddy the picture by bringing in witnesses with three mutually incompatible versions of the evening's events. What struck me, though, was one jury instruction in particular, on the meaning of "beyond a reasonable doubt." We were instructed that that meant a level of belief upon which one would make an important personal or business decision "without reservation." I remember those words because that's a particularly strong standard, and I can't imagine that many cases present a level of evidence that would meet that test for me. No wonder prosecutors push so hard for plea deals.

  72. James Pollock says

    "The problem with that theory is that Zimmerman didn't use Florida Law or even United States law. He used the version of Self Defense that came from English common law"

    Not quite. At common law, self-defense is an affirmative defense, which must be proven by the defendant after the state proves that the defendant is, in fact, responsible for the death or injury underlying the charge(s). Florida altered this rule by statute.

  73. James Pollock says

    "The prosecutor does not need to decide whether he is "putting on too much evidence". The court will decide that for him when defense objects to a proffer of evidence as cumulative."

    A good prosecutor has made that call before the defense does squat. The court only steps on the prosecutor's case if they've misjudged their presentation of evidence; the pressure to keep trials as short as possible comes from whoever's doing budgeting in the prosecutor's office.

  74. James Pollock says

    "I don't really think the fact that it may hard to convict someone when the accused is the only living witness and the forensic evidence is ambiguous can reasonably be described as a problem with the law."

    The forensic evidence wasn't ambiguous; it showed pretty conclusively that the shot that killed Martin came from Zimmerman's weapon, and that Zimmerman was holding it at the time. Unfortunately, there is no forensic evidence that can prove (or disprove) someone's state of mind, and this is the type of case it was.

  75. Mark - Lord of the Albino Squirrels says

    At least with Judge Salerno, there is some comfort to be had in her colleagues' low opinion of her abilities.
    But that Richard Baker article? Oof – just painful to the brain cells.

  76. Steven H. says

    @James Pollock:
    "The forensic evidence wasn't ambiguous; it showed pretty conclusively that the shot that killed Martin came from Zimmerman's weapon, and that Zimmerman was holding it at the time."

    It also showed that Zimmerman was on the ground, with someone on top of him beating his head against the concrete.

  77. rsteinmetz70112 says

    I am merely commenting on a modest grammatical inconsistency.

    role of a jury is to delivery a guilty verdict

    Seems a mismatch.

  78. JorgXMckie says

    A few years ago I was on a 100+M civil trial. I was reasonably impressed by the judge and quite impressed by my fellow jurors, who were in the best sense ordinary citizens. They weighed and examined all the evidence and testimony carefully and deliberated thoughtfully.

    Although I believe we ended up with a finding contrary to the actual law, it probably didn't matter since we pretty obviously hit the low end of a "high-low" agreement.

    I was not impressed at all by the lawyers. The Plaintiff's lead attorney had won previous very large verdicts [I read this later] and he treated us like morons. Or perhaps fools. The defense lead attorney wasn't much, if any better. The other two attorneys in the case were worse. The female second for the plaintiff was old enough to know better, I would think, than to try to dress provocatively, but we were an all-male jury, so who knows.

    At any rate, if it had been possible I would have desired that all the attorneys lose.

  79. James Pollock says

    "It also showed that Zimmerman was on the ground, with someone on top of him beating his head against the concrete."

    Right. Which part was ambiguous?

  80. says

    @rsteinmetz70112

    I am merely commenting on a modest grammatical inconsistency.

    role of a jury is to delivery a guilty verdict

    Seems a mismatch.

    In Ken's phrase, "role" is a noun. The phrase "of a jury" is a prepositional phrase acting on that noun as an adjective.

    Likewise, "to deliver a guilty verdict" is an infinitive phrase acting as a noun. The broad grammatical structure of his remark is therefore "A is B" and that's grammatically unobjectionable since both A and B are nominative.

    What you've noticed is that Ken wrote "delivery" rather than "deliver". That's a spelling error, not a grammatical inconsistency.

  81. says

    James Pollock believes "the judge, having access to more evidence than the jury had available, was able to determine guilt while the jury, having access to less evidence, was not able to."

    And thus, Mr. Pollock identifies another major fault of the jury system. Evidence has been withheld from the jury. The Wise who did this believed that the jury couldn't handle it. Somehow, the Wise believe, the jury will be too emotional, too illogical, too selfish, too (some other variation on "prejudice") AND that advocates on both side cannot get them to understand why and how to be judicial. This is the judgement of The Wise.

    The Wise, of course, would rather render the verdict themselves. But there is this pesky clause in the Constitution (not to mention centuries of precedence). So The Wise contrive to control the jury. Withholding evidence is only one of their ploys.

    The judge — in juvenile fashion — blamed the jury for the fault of the system. She was wrong on many levels, but likely too cowardly to identify the fault.

  82. Zak N. says

    Here is something totally off topic.

    I just read a WSJ article about the e-mail client Snowden used. The owner has decided to shut it down, but from his writing it seems like he chose to do it out of a sense of patriotism rather than being forced to. The problematic part is that he can't talk about the legal issues that played a role in the decision because the ongoing NSA investigation comes with a blanket gag order. It seems like anybody they talk to is barred from talking about the ongoing investigation.

    I'm sure many of you find this problematic. I've even read some articles here decrying this sort of practice. Do any of you know (or know a source that outlines) how we got here? By which I mean, what slippery slope did we go down that allows investigators decide who to gag and when?

  83. James Pollock says

    "Evidence has been withheld from the jury. The Wise who did this believed that the jury couldn't handle it. Somehow, the Wise believe, the jury will be too emotional, too illogical, too selfish, too (some other variation on "prejudice") AND that advocates on both side cannot get them to understand why and how to be judicial. This is the judgement of The Wise."
    Yes, evidence can be withheld from the jury if it is overly inflammatory. What is the frequency that this happens… maybe .001% of the time? Toss this on top of the state's burden of proof, in the interests of avoiding convicting innocent defendants.

    This complaint is the basis for most attacks on the exclusionary rule.

    "The judge — in juvenile fashion — blamed the jury for the fault of the system."
    Yes. But not the fault you're complaining of, which is actually a feature. Evidence was "withheld" from the jury in the sense that the prosecutor didn't present it; they presented it in a totally different case to prove different charges. The fault of "the Wise" was over-reliance on key evidence, the video.

  84. barry says

    @piper Tom

    Evidence has been withheld from the jury. The Wise who did this believed that the jury couldn't handle it.

    If the jury doesn't see or hear it, it's not evidence.

    It's not about being able to handle it (they can see some pretty gory photographs), The judge judges the law (including what the law says can be evidence), and the jury judges the facts from the evidence.

    The judge sees stuff that is not 'evidence' which will bias her view of the facts, even is she thinks it doesn't. This is why the jury is right
    and the judge is wrong when there's a conflict over the facts (like the verdict). A sensible judge would just shut up about being wrong about a verdict.

  85. Careless says

    My father was on a jury for a murder trial that got yelled at for a not guilty by the prosecutor (who was, as I understand it, mostly angry with the judge for excluded evidence)

  86. James Pollock says

    "It's not about being able to handle it (they can see some pretty gory photographs),"
    Sometimes it IS about not being able to handle it. (See FRE 403)

    "The judge judges the law (including what the law says can be evidence), and the jury judges the facts from the evidence."
    The judge sees all the evidence that the jury sees.

    "The judge sees stuff that is not 'evidence' which will bias her view of the facts, even is she thinks it doesn't."
    In this case, it was "evidence" in a different trial (Here using "evidence" in your definition).

    "A sensible judge would just shut up about being wrong about a verdict."
    "wrong about a verdict" is a value judgment, and it has two referents… first, whether the jury correctly assessed whether or not the evidence presented met the standard of evidence presented (and if you want to start in with the "the jury can never be wrong about that", I suggest you research the term "JNOV" first.) The second is a reference to whether the court as a whole has accurate produced a verdict (guilty for defendants who are, in fact, guilty, and not guilty for cases where the defendant is not). If the judge criticizes the jury for that one (as was done here), it is a criticism of the court as a whole, including the prosecutor and the judge (or the defense and the judge, depending on which way the verdict is wrong.)

  87. Mark - Lord of the Albino Squirrels says

    @James Pollock

    "In this case, it was "evidence" in a different trial"

    I cannot find anywhere that Salerno actually ever heard evidence in another trial.

    Instead, it looks like she recused herself (after the administrative judge requested it) from the subsequent trial for Mcgee she was assigned to. At the same time, the potential jurors for that trial were dismissed (by the same administrative judge) leading it to be delayed. Do you have a source which shows that Salerno actually did hear evidence at another trial?

  88. En Passant says

    Zak N. wrote Aug 11, 2013 @8:09 am:

    By which I mean, what slippery slope did we go down that allows investigators decide who to gag and when?

    National Security Letter via PATRIOT Act. NSLs are like secret subpoenas, only without any judicial oversight and without any legal recourse for recipients to contest it.

  89. En Passant says

    If I were one of those jurors, after discharge from jury duty I'd be inclined to pen an open letter to Judge Salerno, and to every media outlet, newspaper, TV and radio station of course. I'd get as many jurors as possible to sign it with me.

    Dear Judge Salerno,

    We apologize for our verdict, which error you so nobly brought to the attention of a concerned public.

    We've taken up a collection to help you make sure that you won't need to do that again.

    Enclosed please find a check for $.35 which you can use toward the purchase of as many kangaroos as you need for your next trial.

    Yr. hmbl jry, &c &c

  90. ShelbyC says

    "That's some world-class hair-splitting. However, I think it fails on the argument that "returning a guilty or not-guilty verdict" can be summarized as "determining the defendant's guilt"."

    Not if we're discussing the accuracy of a jury's verdict. The point being, of course, that a jury who acquits a defendant who turns out to be guilty, or vice versa, hasn't "gotten it wrong".

  91. James Pollock says

    "The point being, of course, that a jury who acquits a defendant who turns out to be guilty, or vice versa, hasn't "gotten it wrong"."

    I don't think there's much traction for this idea that coming to the wrong verdict isn't "getting it wrong".

  92. ShelbyC says

    "I don't think there's much traction for this idea that coming to the wrong verdict isn't "getting it wrong"."

    Calling it the wrong verdict is just bootstrapping. If, after subjectively weighting the evidence, the jury feels that the defendant almost certainly did it, but not certainly, did it, and they acquit, that is the correct verdict, even though presumably in most such cases they will be acquitting a guilty defendant.

  93. Zak N. says

    @En Passant

    Thanks! Sometimes it is hard to figure out the correct question to ask prof. google.

  94. Stephen H says

    So has Judge Amy Salerno resigned yet? One has to assume that she would have no other choice, given the situation she has put herself in. She certainly can't be considered an impartial "judge" any longer.

  95. Michael K. says

    Baker sounds like he'd do really well explaining why all these Alpha prosecutors are tired of being at the mercy of all these Omega jurors, which just enables the defense Betas.

  96. James Pollock says

    "If, after subjectively weighting the evidence, the jury feels that the defendant almost certainly did it, but not certainly, did it, and they acquit, that is the correct verdict, even though presumably in most such cases they will be acquitting a guilty defendant."
    No, acquitting a guilty defendant is still the wrong verdict. It's just that in your hypothetical, the blame for reaching the wrong verdict lies with the prosecution, for not obtaining & presenting sufficient evidence to reach the correct verdict.
    Most, but not all, criminal verdicts are objective… either the person did the act(s) that constitute the charged crime(s) or they did not, meaning that it's possible to objectively determine whether or not the trial reached the correct (accurate) verdict (If they convict the guilty or acquit the innocent, they're objectively correct, and if they convict the innocent or acquit the guilty, they're objectively incorrect.)
    Reaching the objectively correct result is the best outcome, and of the incorrect outcomes, we prefer to acquit the guilty rather than convict the innocent. There are several possible sources of an incorrect result… the facts may be ambiguous or misleading, the prosector may not make a strong enough case with the evidence available, the defense may not make a strong enough case with the evidence available, the judge may exclude or include evidence in error, or the jury may reach an incorrect assessment of the evidence. Within the courtroom, it's impermissible to question the judge, and within the system, it's poor form to question the jury. From the outside, however, all participants are fair game.

  97. ShelbyC says

    "No, acquitting a guilty defendant is still the wrong verdict. It's just that in your hypothetical, the blame for reaching the wrong verdict lies with the prosecution, for not obtaining & presenting sufficient evidence to reach the correct verdict."

    So in my hypo, did the jury get it wrong or not? In any event, why blame the prosecution? They put on all the evidence that they had. Since it's my hypo, I'll be more precise. The prosecution put on all the evidence that exists, and the jury felt that it was almost, but not entirely, certain that the defendant did it. They would be instructed to acquit in such a case, even though they are probably acquitting a guilty person. But you still wouldn't say the jury, or the prosecution, got it wrong.

  98. Jim says

    I share your unpopular view of the jury, Ken.

    The jury's power is to judge the defendant and the law. It makes no difference what the State says the law is or if the prosecutor has proven his case.

    If the jury doesn't like the law, it has the power to ignore the law and let the defendant go.

    To whatever reader is perusing my comment, you may or may not get something from ol' Lysander Spooner on the matter:

    An Essay on the Trial by Jury [1852] by Lysander Spooner.

  99. James Pollock says

    "So in my hypo, did the jury get it wrong or not?"
    You quoted my answer to this question.

    "In any event, why blame the prosecution?"
    Because it is the prosecution's job to acquire sufficient evidence to convict before proceeding against the defendant, and to present it to the jury. If there isn't enough evidence to convict, then the prosecution should not charge the defendant.
    In other words, the prosecution should win all its cases because it shouldn't bring any cases it isn't going to win.

    "Since it's my hypo, I'll be more precise. The prosecution put on all the evidence that exists, and the jury felt that it was almost, but not entirely, certain that the defendant did it."
    The prosecution has failed, in bringing charges it didn't have enough evidence to win.

    "But you still wouldn't say the jury, or the prosecution, got it wrong."
    0 for 2.
    The prosecution got it wrong because they didn't obtain and present enough evidence to convict. The jury got it wrong because they came to an inaccurate result. Blame for the jury getting it wrong doesn't lie with the jury, but that doesn't make an inaccurate finding correct.

  100. ShelbyC says

    "Because it is the prosecution's job to acquire sufficient evidence to convict before proceeding against the defendant, and to present it to the jury. If there isn't enough evidence to convict, then the prosecution should not charge the defendant."

    I think this highlights your misunderstanding. The prosecution can't, of course, present evidence that doesn't exist, nor can they predict what weight a jury will give a particular piece of evidence. So it doesn make sense to say that the prosecution shouldn't charge the defendent if they don't have enought evidence to convict. They might feel that, say, a particular witness is credible, but they can't predict whether or not the jury will find him credible.

    "The jury got it wrong because they came to an inaccurate result."
    Again, the jury's job is not to determine guilt, but to assess the evidence. If the evidence isn't there, not guilty is the correct verdict even if the defendant did, in fact, do it.

  101. James Pollock says

    "nor can they predict what weight a jury will give a particular piece of evidence."
    Any prosecutor who is unable to do this should get a different job, because they are lacking a fundamental skill of the one they have.

    "it doesn make sense to say that the prosecution shouldn't charge the defendent if they don't have enought evidence to convict."
    The only alternative is that the prosecution SHOULD charge the defendant if they don't have enough evidence to convict. And you claim I don't understand the process?

    "They might feel that, say, a particular witness is credible, but they can't predict whether or not the jury will find him credible."
    Yes, they might do this. And if the prosecution thinks that a particular witness is credible, but the jury does not, then either the prosection is wrong (because the witness is not credible, and the prosecution thinks the witness is) or the jury is wrong (because they find the witness not credible, when the witness tells the truth).

    "If the evidence isn't there, not guilty is the correct verdict even if the defendant did, in fact, do it."
    No, it's still incorrect.
    It is the job of the court (of which the jury is an important part) to assess the guilt or innocence of the defendant. The court is "correct" when it convicts the guilty or acquits the innocent, and it is "incorrect" when it acquits the guilty or convicts the innocent. In criminal trials, the jury speaks for the court. Either the jury (and therefore the court) reaches the correct verdict, or it reaches an incorrect verdict. The fact is that failures of the prosecution, judge, or defense might cause the jury to reach an incorrect verdict (or, of course, the jury might reach an incorrect verdict all by itself). The fact that, say, a botched prosecution limits the jury's options to a "not guilty" verdict doesn't magically make the verdict "correct" if the defendant was guilty. It means that the prosecution caused the incorrect verdict to be reached.
    Similarly, if the defense is incompetent, and as a result an innocent defendant is convicted, the jury's verdict is incorrect, not because of any fault of the jury, but because the defense was botched. On the other hand, if the judge makes an error of law, and allows evidence that should have been disallowed or disallows evidence that should have been presented, the jury's verdict is not reliable and will be discarded, even though the jury has faithfully carried out its duties.
    All of the elements of the court must be working properly for the jury to reliably reach the correct result.

    The case you keep returning to, where the prosecutor does not present enough convincing evidence to convict a guilty defendant, does not create a situation where the correct verdict is acquittal; acquittal of a guilty defendant is not correct. It creates a situation where the only option available to the jury is the incorrect one.

  102. Castaigne says

    @Sami: As far as I can tell, the law, as it stands, essentially declares Last Man Standing Is Innocent. So long as you succeed in killing someone, you can then claim you feared for your life and therefore be innocent of murder.

    That's pretty much how it works in all practicality, although a lot of people here no doubt will say different. If you ever need to defend yourself in a visit to the USA, make sure no witnesses are left alive afterward. Then you're gold. Especially if you're down here in the Deep South with me.

    @Zack: (To answer the obvious questions that I can think of: Trayvon and anyone else in that situation is not supposed to take the person to the ground and continue beating them there. Once you take the person to the ground, you either run, get to a nearby house or what have you. This could also have been avoided if either one of them talked to the other. And third, you're not supposed to initiate physical contact under any circumstances even if someone is following you- which I believe, and I could be wrong, that the evidence shows Trayvon did.)

    I disagree completely. If someone who is not an officer of the law is following you, they are doing so for one of three purposes: Rape, Robbery, or Murder. And if you are not cowardly, you do the only thing an American should do: perform a pre-emptive strike. If Zimmerman had been following Whitey McWhiterson me, he'd be on the ground himself. I can only conclude that Trayvon was a weak fellow; if I had been banging someone's head against the sidewalk, you wouldn't see those superficial wounds. One crack: Dazed. Two cracks: Skull split open, cranial fluid leaking through the cracks. Three cracks: Back of his head crushed in like an eggshell.

    Since that's what happens when anyone of average strength does that kind of manuever, I can only assume that Trayvon was a major weakling for his size.

  103. James Pollock says

    "I can only conclude that Trayvon was a weak fellow; if I had been banging someone's head against the sidewalk, you wouldn't see those superficial wounds."

    I'm not so sure this is true. In another thread I described dropping headfirst onto a sidewalk from a distance of about six feet up; I knocked myself out and put a small quantity of blood on the ground, but the major injury was actually to my back.

    Then there's the physics: If a person's back is pinned to the ground, you can only lift their head a short way off the ground, and it's tough to accelerate an object to any significant degree in such a short distance. You get way more impact if you let go of their head, pull back your fist, and accelerate it through your whole range of motion. Even better if you can heft a small but significant mass when you do it.

    Note: If Zimmerman tried to detain Martin, which he claims he did not but which seems fully in line with his reported actions and state motivations, then Martin would have been justified in using force to escape.

  104. Rich Rostrom says

    Or maybe the jury was just stupid, failed to understand the clear and convincing evidence presented by the prosecution, and responded to blatant appeals to prejudice by the defense attorney.

    In which case the judge might be angry. Juries do dumb things all the time. Judges sometimes override juries by setting aside guilty verdicts.

    Has Judge Salerno ever done that? If so, it would seem to cast doubt on the assertion that she expects all juries to convict.

  105. James Pollock says

    "Judges sometimes override juries by setting aside guilty verdicts.
    Has Judge Salerno ever done that? If so, it would seem to cast doubt on the assertion that she expects all juries to convict."

    These facts are compatible with the notion that the jury's role is to deliver a guilty version, and the judge must override it if they the guilty version is grievously wrong.

  106. busyba says

    “(The judge) said, ‘Ninety-nine percent of the time, the jury is correct,'" according to Chapman. "'Now it’s 98 percent. You got this wrong.'"

    So not only is the judge bad at civics, unless she's only presided over around 100 cases, she's also bad at math.

  107. Castaigne says

    @James Pollock: I'm not so sure this is true. In another thread I described dropping headfirst onto a sidewalk from a distance of about six feet up; I knocked myself out and put a small quantity of blood on the ground, but the major injury was actually to my back.

    The narrative on the majority of conservative and libertarian websites [1] who have discussed this is that Trayvon was "squatting on Zimmerman like an ape" and smashing his head against the sidewalk repeatedly with "the force of a jackhammer". I have even heard it compared to Zimmerman's head lying on a sidewalk and having someone smash a sledgehammer full force into his face. Very well; since it is axiomatic that conservatism/libertarianism is invariably right [2], I must accept this as the veritable fact.

    So, I must disagree with you.

    @Busyba: she has a re-election facebook page:

    Never trust an elected judge. Or elected attorney of any type.


    [1] I am completely unsure about liberal, as I only mosey through Democratic Underground and Daily Kos, looking for loons. Conservative and libertarian websites, like Free Republic and Vox Popoli are far more fertile in that regard.

    [2] Just as it is axiomatic that liberalism is invariably wrongity wrong wrong wrong.

  108. James Pollock says

    "since it is axiomatic that conservatism/libertarianism is invariably right [2], I must accept this as the veritable fact. "

    Well, physics is science, and conservatives have a well-known ideological opposition to science.[1]

    1 Well, they pick and choose. They're entirely OK with the science that creates firearms and pickup trucks, entirely opposed to just about the entire science of biology (but applying Darwin's principles to human societies is OK), and all over the map on health sciences.

  109. Lurchi says

    @James Pollock —"If the evidence isn't there, not guilty is the correct verdict even if the defendant did, in fact, do it."
    No, it's still incorrect.—

    I've been reading your exchange and I'll offer you another hypothetical, You are a member of a jury, you are passing judgement in a murder trial, all evidence indicates that the person may have committed the murder but you find the evidence isn't enough to go beyond reasonable doubt. What is the 'correct' verdict?

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