This Time, It Was A Criminal Trial

The facile retort to calls for honoring the concept of due process under the series of attacks, whether Title IX, #MeToo and in the Kavanaugh hearings, was that “this isn’t a criminal trial.” Grasping this mantra, advocates sought to distinguish their vilification of due process when it served their purpose, while feigning respect for it otherwise. Of course, this isn’t how life works, as the notion of procedural fairness is either a good thing or a bad thing, but it can’t switch from one to the other based on one’s preferred outcome.

Tyler Lampe, a former cadet at the United States Military Academy at West Point, found that out the hard way.

“In today’s day and age, like it or not, guys are guilty first,” an alternate juror in Lampe’s case reported hearing one member of the panel saying prior to deliberations, according to a motion for dismissal of the charges against Lampe filed last month. Jurors are instructed not to discuss the case in any way before beginning their deliberations.

“Why didn’t they let him take the stand?” another juror was quoted as saying. Criminal defendants are specifically not required to testify, as the burden of proof is on the prosecution.

Presumed guilty? The burden shifted to the defendant to testify or else? Except it was a criminal trial, despite the “today’s day and age, like it or not,” mindset that the cries of #TimesUp and the litany of rationalizations have permeated the thoughts of people. At trial, there’s a name for these people. They’re called “jurors.”

Notably, this was revealed to the court in a letter from an alternate juror, an engineer.

The allegations of misconduct were contained in a letter sent by the alternate juror to Judge Patrick Carmody, in which the man complained that the guilty verdict delivered by the jury of nine women and three men delivered at the conclusion of the five-day long trial in October was “a grave error.

The defense was that the sex was consensual, both were drunk and neither had much of a memory of what happened. But with the burden on the defendant to disprove the allegation that it was rape, Lampe was convicted.

Judge Carmody dismissed the alternate juror’s letter.

But Carmody said that the comments from the alternate juror, who he described as an engineer who was a visible supporter of the defense case, were not credible. He said the man, whose name was included in the letter but who was identified as “J.J.” in the defense motion, could have raised his allegations of improper conduct by his fellow jurors during the trial instead of afterwards, but chose not to.

“Basically, he disagreed with the verdict,” the judge said. Carmody reminded the attorneys that the man had been himself overheard making improper comments about prosecutor’s questions and been warned to put his concerns in writing. “If he had had a complaint about anything during the trial, he would have raised it.”

The judge’s point about the alternate juror failing to raise these issues immediately is fair, both because they could have been addressed before the verdict and it created the appearance of sour grapes afterward. Still, it may well be that it wasn’t a “real” problem until after the guilty verdict, and it’s not as if jurors are instructed about what to do if they become aware of impropriety during trial. People tend not to want to be snitches if they can help it.

The trial took place in the midst of the Kavanaugh hearings, a time when feelings about rape were fevered and due process was under particularly vehement attack. Just as there used to be the “CSI Effect,” it’s unsurprising to learn there’s now a “#MeToo Effect.”

Is it limited to the two issues raised by the alternate juror, that the male is presumed guilty and the burden of proof shifted to the accused to disprove the allegations? There remains a great many components of the narrative, most notably the litany of rationalizations about how guilt is proved no matter what, as good memory or bad, immediate complaint or delay, consistent story or inconsistent, all prove guilt.

For those lawyers, and judges, who want desperately to believe that they can rail against due process when it serves their purposes, but it will still be there for them when “it’s a criminal trial,” they’re indulging a delusion. The “it’s not a criminal trial” excuse may serve to let hypocrites sleep better at night, but it has, and will continue to, filter into the popular grasp of culpability and deprive the accused of their constitutional rights. Of course, those so inclined may still sleep fine at night, unconcerned about the collateral damage of their narrative.

19 thoughts on “This Time, It Was A Criminal Trial

  1. REvers

    “,,,[C]ould have raised his allegations of improper conduct by his fellow jurors during the trial instead of afterwards, but chose not to.”

    Kind of like, say, a woman who could have reported a rape when it allegedly happened but instead waits 25 years to mention it? I’ll bet Judge Doofus wouldn’t have any problem with that.

    1. SHG Post author

      That thought occurred to me as well, but I’m not at all clear that it’s a good comparison. Reporting a crime has fairly well understood rules. Reporting juror misconduct during trial isn’t nearly as clear and may not prove significant.

  2. szr

    This sentence is perfect:

    “The “it’s not a criminal trial” excuse may serve to let hypocrites sleep better at night, but it has, and will continue to, filter into the popular grasp of culpability and deprive the accused of their constitutional rights.”

    I want you to be wrong about the slippery slope consequences of ignoring due process concerns. But you’re not wrong.

    1. SHG Post author

      It’s bad enough that non-lawyers don’t care, but that woke lawyers are not merely complicit, but actively engaged in the vilification of due process, is what hurts the most. And they will defend their righteousness at every turn.

  3. aNon-Lawyer

    It is frightening that university standards (“not a criminal trial” standards) and the influence of the public #MeToo movement have now affected criminal trials, as this post indicates. Ironically, the guilty verdict in this case (just or not, I do not know) seems to confirm the argument that the legal system provides sufficient protection for sexual assault victims, and that university Title IX processes regarding sexual assault are unnecessary.

  4. Bruce A.

    Without disagreeing with your final point about the popular grasp of culpability and collateral damage to constitutional rights, a report that some jurors disregarded instructions to not discuss a case before deliberations begin, or improperly switched the burden if proof to a defendant, or questioned a defendant’s decision to not testify, either individually or collectively in one trial, should surprise no one engaged in the criminal justice arena. For example, a defendant’s decision to not testify always carries the risk of being held against him by a jury. These process errors happen, even without the Kavenaugh debacle or Title IX due process abuses as backdrops, and the best we can hope for is that jurors usually follow the judge’s instructions, etc. But if we were flies on the wall in many jury rooms I think we’d be appalled sometimes at what really goes on in there.

    1. SHG Post author

      Yeah, considering that most readers here are experienced trial lawyers and judges, we kinda know this obvious and generic stuff already.

      1. SHG Post author

        He was trying to be helpful, even if he may have assumed a certain gross lack of sophistication here. And we both know your pecker’s too small to get snagged in anything anyway.

        1. joe b

          I am neither an experienced trial lawyer or judge (and in fact neither are the others I know who read this). But even without invoking my vast experience as a physician, I would guess that it is the particularly small pecker that is at risk of zipper damage.

          1. SHG Post author

            Lacking personal experience, I defer to your guess, and owe Sarge an apology for my comment regarding his particularly small pecker. Sorry, Sgt. Schultz.

          2. Sgt. Schultz

            I’m not entirely sure whether I should thank you or be doubly insulted. Isn’t it bad enough to have a small pecker?

  5. B. McLeod

    And, in this day and age, judges who try to do anything to redress the #MeToo Effect must expect to face the Persky Effect.

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