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.