Thursday, June 6, 2019

The Null of a Jury

 Yes the system is rigged. From the way we charge and process criminals we have a system set up to fail.  Once in you will never leave.

A jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself, or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness.
Jury nullification is a discretionary act, and is not a legally sanctioned function of the jury.  It is considered to be inconsistent with the jury's duty to return a verdict based solely on the law and the facts of the case.  The jury does not have a right to nullification, and counsel is not permitted to present the concept of jury nullification to the jury.  However, jury verdicts of acquittal are unassailable even where the verdict is inconsistent with the weight of the evidence and instruction of the law.

There is much being discussed about reforms across the criminal justice system.  Many Prosecutors are taking to emphatic arm waving to stop this and of course the varying Victim Lobby groups will be up and into the business of business that is about establishing a permanent victim class - see MADD for example.  

Read the below essays and ask yourself which side do you want to be on? 

I Was a Juror on a Murder Trial, And I Still Can’t Let It Go
“I felt an overwhelming sense of injustice. How did this happen?”
By Audrey Pischl

Being a juror had never been something I was familiar with—very far from it, actually. I had grown up in Paris, France, and my interests had always been in fashion and the music industry.

I lived in both Europe and the U.S., traveling back and forth, and worked for a high-profile entertainer for a number of years. For the most part, all I was concerned about was the brand of handbag or shoes that I would be buying next, and where I’d go on my next holiday.
Life Inside
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But then I got that jury-duty notice in the post, or “by mail,” as you guys say. So many times, I’d heard people complaining about being called for jury duty—the inconvenience, the missing out on work and income, and then the advice on how to get out of it should you be so unlucky to be selected. I also knew that many potential jurors are dismissed before even making it to the courtroom.

Well, I did get called in, and I had to fill out a long personal questionnaire about my criminal history, if I knew anyone in law enforcement or any lawyers, and my views on guns, gangs, etc.

When I walked in, there were 80-plus other people waiting in movie theater-like seats (except they didn’t recline). Two defendants were present, along with a bailiff maintaining security.

Then, the judge informed us that this was a criminal trial: a murder case.

The questioning of us potential jurors from both the prosecution and the defense took a long time—many people wanted to have their moment to discuss their feelings about law and their past life events. When they got to me, they asked if I had any feelings about tattoos, and if I understood an aiding-and-abetting situation, and if I could be impartial.

Not really, yes, and yes, I said.

I was picked. And without a doubt, what happened next altered my life forever.

Here’s what the case was about: A group of five men were drinking beers in a driveway when someone, or multiple people, came running down the street toward them, shooting a gun. It was early in the evening. One guy was hit in the head and died instantly.

Surveillance videos showed two people running, with hoodies on, in the dark. The district attorney said this was an intentional, premeditated murder, carried out on behalf of a gang.

My first impressions of the two defendants were neutral: James, the taller one, sat up straight and seemed confident but not overly so, while Robert* was hunched down and, to me, looked like a “deer in headlights,” as the expression goes.

I felt immediately as if I could almost hear his thoughts. How did I end up here? How did this all happen to me? At times, he would gently pull his sleeves down over his hands’ tattoos.

James, meanwhile, looked more at ease with the attention and notoriety of a murder trial.

The main thing the district attorney kept returning to over and over again was the fact that Robert had gang tattoos, across his arms and hands. The prosecutor kept asking character witnesses if they knew the meaning of these images. The defense said he'd gotten them to look tougher—not because he'd “earned” them.

His boss even came in as a character witness for him, and praised him as a good person and a hard worker who often took on extra shifts. We also learned that he spent his weekends and free time going to the movies with his little sister.

My opinion was clear: Robert was not guilty, under the law as it was read to us at the end of the trial. If you have reasonable doubt, you have to vote not guilty.

Then deliberation time.

It was just like high school: the jurors got to know each other, had lunch together, shared some laughs during recess. During the six-week trial, things could get frustrating, too: Each of us had our own beliefs and ideas—and prejudices. Mix that in with the people who were in a rush to get back to work or tired of jury duty, and we got a dead end.

It ended in a mistrial: 7-5 guilty for James, 7-5 not guilty for Robert.

This could have been the end of it. I would go on with my fashionable life, return to my husband and being a mother. Surely I’d forget all of this rapidly, as most people do after jury duty.

But something happened for me. I found out after the trial that at the re-trial, the district attorney was seeking life-without-the-possibility-of-parole sentences for both James and Robert.

Life-without-parole. It was such an awful, confusing, impossible notion to me.

So I kept in touch with both attorneys. James followed his counsel’s advice and took a plea deal a few weeks later, taking responsibility for the crime with a 25-year sentence. Robert did not, and listened to his lawyer’s belief that he would be found not guilty at a second trial.

Less than four months later, in October, it began — and without James beside him, all eyes were on Robert, tattoos and all.
Case in Point
An examination of a single case that sheds light on the criminal justice system

Another juror from the first trial, Jill, and myself decided to attend this new trial. She felt the same way that I did about Robert’s innocence. At the opening arguments, he saw us, and, I think, recognized us, giving a small nod in our direction. It was clear we’d come to support him.

I observed the new set of jurors, seated as we had been, listening to all of the same pieces of evidence. They mostly seemed older, some a bit stone-faced, which gave me a strange feeling.

Then they too were off to deliberation.

I was so anxious for Robert. Later on that day, I heard from his attorney that the jurors had asked to review some evidence, which gave me a surge of confidence. Less than 24 hours later, I got a text saying there was already a verdict.

I contacted Jill and off we raced, back to the court house.

When we got there an hour later, we sat down, the jurors came in, and none of them looked towards the seating area—except the last one. And when she looked, it was toward the victim’s family. My heart sunk.

Guilty … Murder one, plus four counts of attempted murder.

I was floored. Robert’s family members were seated one row in front of me, and started to discreetly cry heavy tears.

In the elevator afterward, his mother broke down completely. I could almost touch her pain.

I felt an overwhelming sense of injustice. No new evidence was shown. How did this happen?

As soon as I got home, I knew that I couldn’t let Robert’s story go, and would find a way to try to help him somehow. I called the judge’s clerk and asked if it would be allowed to send a letter asking for leniency at sentencing—at least a chance, at some point in his life, for parole.

Then I started to call every lawyer I could in California, then other states, getting to know the law and how sentences work. I also gave my number to Robert’s family, in case he might want to speak to me someday.

The following week, he actually called me. I wasn’t expecting it, really, but within seconds he thanked me and asked me to pass along his gratitude to the other jurors for believing in him, and that he appreciated us coming to the second trial to support him. He sounded so young.

It was difficult to speak freely, as every few minutes I was reminded by an automatic voice that the call could be listened to and recorded.

We had another call few weeks later, and he seemed a bit more cheerful. He explained that he’d had a very good visit from his family the day before, and that he found out that he could take classes and have a job in prison.

Sentencing came a few days shy of Christmas. Life without parole: a death sentence with a different sticker on it.

It was never proven that Robert was the shooter in this crime, and he was shown to be a contributing U.S. citizen with a long-standing job and no prior run-ins with the law. No matter.

Robert’s case has made me engage with the world in ways I never thought I would. I keep in touch with four of my fellow jurors, and we meet up once in awhile.

I’m also getting involved with an organization that works on new state criminal-justice reform bills, including one that would remove life-without-parole as a possible sentence for someone who has not directly committed a murder.

Where has our humanity gone? Why do we care so little about people being sent to prison for their entire human lives, and what happens to them?

I have been told how unusual it is for a juror to become so involved in the case after-the-fact. But I find it sad that it could ever be unusual to know about what happens to people like Robert and care.

The Day I Didn’t Serve on a Jury in a Sex Assault Case
“As I left the courthouse it dawned on me that the judge had assumed the role of therapist.”
By Andrew Cohen

The first thing that struck me inside the courtroom was the palpable anger that some of my fellow prospective jurors emitted when they found out that the defendant in the case we had been called to serve was accused of sexually assaulting a minor. I would call the mood smoldering. One elderly women in the first row, with a grouchy disposition to begin with, immediately told the judge that she thought the defendant was guilty even though she knew nothing about the evidence. I mean, her arm shot into the air so quickly to make her point to the startled judge and the rest of us that I thought it would soar off her shoulder.

A handful of others also raised their hands, over and over again, to let the earnest judge and the prosecutor and the cop sitting next to her and the defense attorneys and the defendant himself know that there was no presumption of innocence when it came to sexual assault on a child. The candor was both disappointing and refreshing. It was disappointing that for so many people the nature of a crime itself transcends all of the ways in which the law has been crafted to protect the rights of defendants. It was refreshing because these jurors were all disqualifying themselves without forcing anyone to uncover their prejudice.
Life Inside
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The second thing that struck me was how many women in our group of about 60 prospective jurors said in open court that they were unsure they could fairly judge the defendant because they had experienced some form of sexual abuse in their own lives or knew people who had. The judge was not surprised by these urgent responses; clearly he had heard it before in such cases, and so he quickly tried to reassure these prospective jurors that they would not be put on trial during the jury selection process; that they would not be asked by the lawyers to recount their own experiences.

But that didn’t mean the trial itself wouldn’t bring up memories that some jurors clearly wanted to repress. One juror said just that: that she wasn’t sure what the evidence would be, but that she feared it would force her to confront experiences in her past that she did not wish to confront. She didn’t say that she couldn’t fairly judge the case, she told all of us, she just wanted the judge and the lawyers to know how she felt. At this point, all we knew about the case—all I know about it now as I write this—is that the defendant faced one charge stemming from conduct between 2006 and 2009.

During all these exchanges I tried to watch the defendant from my vantage point in the jury box. He is a small man, and relatively thin, and looked to be in his 50s or 60s. The two defense attorneys, both women, both clearly younger than their client, had wisely placed him as far from the jury box as possible. I did not see him speak to his attorneys or interact with them in any way. I did not see him wince or otherwise react when he was adjudged guilty before the first witness had been heard, by the people called to give him a fair trial.

Some people in the jury pool were desperate not to serve. One said she had an elderly parent to take care of. Another said he had business travel he couldn’t miss. One man told us that he suffered from panic attacks and took Xanax several times throughout the day. One woman let us know she has Crohn’s disease and would need to go to the bathroom many times during the course of testimony. An elderly man said the same thing on account of his diabetes. The nice man sitting next to me couldn’t hear the judge even with his hearing aids turned up, so he was given a set of headphones (which he said didn’t work very well).

And then there were jurors, I would say the vast majority, who said they weren’t sure they could give the defendant a fair trial but were willing to keep an open mind. And those were the jurors the lawyers would fight over for the rest of the day. The jurors whose views about crime and punishment and law and order would be probed. The jurors who finally would hear the story of the crime and ultimately render their verdict about whether the man against the wall on the far side of the room was guilty or not.

I did not get selected. I never do. I never can get past the question the judges always ask about weighing a case based solely on the evidence and law presented in court. I agree such an admonition is essential, and too often ignored by jurors, but I cannot unlearn or forget what I have learned as a lawyer and after nearly a quarter of a century of work as a journalist covering criminal justice. In the span of the jury questioning I witnessed I already was wondering why the charges had come so many years after the alleged assault, and whether there were any plea negotiations before the start of the trial, and whether the defense planned to use expert witnesses to testify about the reliability of survivor testimony.

As I left the courthouse it dawned on me that the judge had assumed the role of therapist. That simply didn’t happen when I first started covering jury selections. We are having a different kind of national discussion these days about sexual assault, and how the law ought to handle it, and the echoes of that new dialogue permeated the courtroom even before the first witness was sworn in.

Senior Editor Andrew Cohen, a lawyer and legal analyst, edits The Marshall Project’s daily newsletter, Opening Statement. The defendant in the case, Ralph Ramon Lujan, was found guilty on March 12 of sexual assault on a minor child under the age of 15 by a person in a position of trust, a Class 3 felony in Colorado. He is being held without bond until his scheduled sentencing on May 20.

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