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This page contains a single entry from the blog posted on July 6, 2009 1:27 PM. The previous post in this blog was A breather. The next post in this blog is Ramping up slowly. Many more can be found on the main index page or by looking through the archives.



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Monday, July 6, 2009

10 out of 12 ain't bad

Oregon's practice of convicting criminal defendants with less-than-unanimous juries may be heading before the U.S. Supreme Court again -- at least if this fellow's lawyers have their way.

Comments (5)

“The argument that people who are in the minority are somehow deviant, not worth respecting or making crazy arguments,” she said, “just doesn’t hold up.”

I would bet Ms. Diamond has never served on a Portland area jury panel.

Part of the problem is there will always be folks in the community who do not believe anyone should go to jail, ever, for any reason. They seem to want to be Henry Fonda and fantasize they are the only one able to see clearly, saving the innocent from a wrongful conviction.

On the other hand I might be thanking that one crazy holdout if I was the one on trial. With that perspective I would lean toward wanting all 12 convinced of my guilt before being sent south to meet new friends.

"Part of the problem is there will always be folks in the community who do not believe anyone should go to jail, ever, for any reason. They seem to want to be Henry Fonda and fantasize they are the only one able to see clearly, saving the innocent from a wrongful conviction."

In recent years, in my experience, it seems that there is a rising garrison mentality among jurors who want to "hold people accountable" just for good measure, where there is no proof of criminal intent, where DAs make batty charging decisions.

In my view, it is unfortuate that individuals and small groups of people are so easily viewed as crazy these days, when, as Margaret Mead famously observed, individuals and small groups are the ones usually credited with changing the world (as well as juror's minds). Groupthink is rampant everywhere these days.

In any event, meting out justice can be a messy process. I do not agree with Josh Marquis that efficiency should be a guiding principle in criminal cases.

If people actually understood how far from "the presumption of innocence" criminal trials have come, they'd demand TWO unanimous verdicts from two separate juries. The bottom line in this country is that 95% of the people in jury pools think that, if you're not actually guilty as charged, you're a pretty bad person anyway or you wouldn't be there at the defendant's table in the first place. Between the testilying cops, the careerist prosecutors and the general apathy of the public to the "criminal justice" system as it is lived in urban centers, it's a wonder that anyone is ever acquitted.

I sat on a federal jury a couple years ago and have to say my experience jibed more with Cynthia's and George's description than Gibby's. After four days of trial and testimony, our little group retired to deliberate on the five charges before us.

On four of the charges it seemed likely we should convict, though at least one of those was a conspiracy charge and I wasn't entirely positive the prosecution had dotted all of the i's and crossed the t's to make the rather complicated case. The fifth charge was completely absurd on its face, and in his closing summary the prosecutor all but admitted as much, skipping over this charge as he thoroughly summarized the other four, saying simply that it was up to us to interpret the testimony and evidence we had seen as to regard to that charge and that it was probably the weakest of the five (yes, he actually said it was weak).

As soon as we were in the jury room and had elected a foreman (the one guy who seemed interested in the job), he called for a quick vote to see where we stood and if we could get out of there right away, without any discussion. We had the option of voting to convict, acquit, or request further discussion. I was the only one who wanted to discuss any of the five charges. All eleven of my colleagues wanted to convict immediately and go home. Yes, suddenly I had become Henry Fonda.

I'll wrap up this rather long-winded comment quickly by jumping to the final outcome, which was a conviction on four of the five counts. It took me about an hour, but I slowly picked off enough of the other side on the ridiculous charge that the few holdouts realized I was willing to fight much harder to defend this a**hole from a wrongful conviction (and he was one of the most worthless human beings I've ever encountered) than they were to convict him, and they eventually gave in so they could go home.

Now, as I said, the defendant in this case was a sad excuse for a human being. He was a meth dealer who had engaged in more immoral and unscrupulous behavior than I care to think about. However, I believe my fellow jurors would have convicted him of just about any charge the prosecution saw fit to bring up to and probably including the Kennedy assassination, which would have been more than a decade before his birth. They had decided he was a bad person and cared not a wit for the details of exactly which laws he had or hadn't broken. I don't intend to ever do anything that could land me on the wrong side of a jury trial, but I still dread the thought of some case of mistaken identity that could land me there, because I think just about anything could happen.

[For those who care, the defendant was eventually sentenced to 22.5 years, though that was later reduced to 14 years when two of the charges failed to hold up on appeal.]

I've been on three juries. 2 - not guilty and 1 guilty.

This one 75 year old man was just sure that the young man had raped his ex-girlfriend. I think the vote was 11-1 to not convict. You could not have changed this man's opinion - the jury would have been hung. Rape is hard to prove. The argument both times I've heard it, is that it is consentual. Now, it is a battle of lying and hatred of one-another.

It is tough.

Then one time an ambulance driver testified that a car went by the front of his house with a woman on top of the car at 35 mph back and forth - and people were not willing to convict for careless driving. But we did and it was unanimous, I believe. We actually had to discuss it. I was amazed.

I can tell you that rape is hard to prove. Unbelievably hard, having sat through two trials, it is never about did they have sex, it becomes did they agree to have sex - so incredibly hard to prove. I know why women don't press charges - they have to give intimate details about this gross act to 12 people you don't know and anyone else in the courtroom. And the person who did this act is 15 feet away while you are telling it and giving you the stink eye. I think 12-0 is too much, some are inherently biased and don't care if she is raped.


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