Ken Lammers at Crimlaw, a former defense lawyer who went over to the dark side, provides a great post about a trial where the jury got almost everything right.  Everything but the one obvious, no possible way he could lose, clear as a bell, detail that the defendant was proven to be a habitual offender.  This wasn’t supposed to be an issue.  It couldn’t possibly be an issue.  And yet the jury got it completely wrong.

You gotta love juries.  Well, actually you don’t, but you do.  We spend so much time talking about juries because they are always the wild card.  Sure, there’s the potential of getting a cop to admit on cross that he lied through his teeth, set up the defendants and planted to dope.  Yeah, that happens a lot.

But even if we do get the cop to break down in paroxysm of guilt, what if the jury isn’t paying attention?  What if they misunderstood what just happened in front of their face.  What if they just don’t care?

That great old saw about the jury system, “it may not be perfect, but it’s the best there is” is a load of crap.  It’s another one of those great platitudes for the unwashed to make them feel comfortable with a system that doesn’t work.  We (lawyers) are really good at coming up with saying that cover the warts of the system.  We’re not nearly as good at fixing the system.

No, I’m not suggesting that judges would be better.  I agree with the anti-Federalists (Republicans) that the entrenched governmental aristocracy would then be empowered to use the courts as the enforcement arm of their political policies.  Thomas Jefferson had a very healthy fear of government.  Even back then, he understood that the desire for self-perpetuation overwhelmed, or perhaps dictated, one’s view of right and wrong.  Jefferson placed his faith in the common man, with the caveat that the tyranny of the majority had to be kept in check. 

But juries are an animal all to themselves.  We try cases before them in the hope that they are hearing what we are hearing.  Of course, we have a finely attuned ear for testimonial discrepancies, which we believe matter.  Do they?  When we catch a witness, we exploit it as much as the judge will allow.  Will they think it’s such a big deal?  When witnesses resist answering a question, or give a non-responsive answer to weasel their way out of saying something that hurts their position, we realize exactly what they are doing.  Do juries?

The group dynamic of a jury happens outside our hearing.  It happens in the jury room, where the twelve of them do their very best to invent nuclear fusion.  I believe that juries try very hard to do the right thing.  I just have trouble believing that it works.  Somebody in the jury room says something in a very authoritative voice, and the dynamic is formed.  The others nod their head, and then the group goes down a road together trying to consider the case within the framed paradigm.  What if that very authoritative voice was wrong.  Just completely off the wall?  Totally missing the point, or trying to outsmart the case? 

There’s no one in that jury room listening to the jurors going off into the stratosphere, who can then steer them back on track.  There no one to explain, “No, you just made an assumption that is totally off base and the whole discussion then went awry.” 

This doesn’t happen?  Enjoy the great pleasure of a focus group, and watch how the bunch of them take off on some bizarre tangent that suddenly becomes truth in the eyes of the group, and directs the group’s attention into some dark place that no one would have anticipated they would go.  It’s worse than shocking.  It’s enough to make one wonder why we bother in the first place.

One of the great secrets of jury deliberations is that they have the right to engage in nullification.  Nullification means that, even though they are instructed by the judge that they must follow the law as he gives it to them, they actually have the right to ignore the judge completely and do whatever they want.  No one can stop them.  It’s their absolute right, even though judges instruct them otherwise.

Whether juries actually follow the judge’s instructions is another mystery.  Imagine sitting on a jury and having some guy talk to you for an hour in a foreign language.  No questions,  No translations.  Just sound emitting from a guy wearing black.  What would that mean to you?

Jury instructions are argued by lawyers all the time.  We parse the most minute details, their meanings and implications.  To what end?  They make for great appellate arguments after a conviction.  But do they matter?  Do they matter at all?  What group of non-lawyers is capable of hearing them and able to individually process every word, simultaneously analyzing it in the most minute detail?  It really is a goofy concept.

So Ken, with his slam-dunk issue, got slam-dunked by his jury.  Don’t feel too bad for Ken, because it goes the other way 97.3 % of the time (except in the Bronx).  One day I’ll write about trying cases in the Bronx, which violates everything said about trying cases anywhere else.  Ken found his situation strange enough to post about it.  I understand.