Free at Last

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criminal justice

The Dumbest Trial of the Century has been discharged with a hung jury. Now that I’m free to talk about it, I’m going to vent.

First off, this was a bleeping marijuana possession case. The People contended that a substantial quantity of marijuana that had been found near, not in, the defendant’s apartment had been in the possession of the defendant. The People’s case had holes you could drive a truck through. The detective on whose uncorroborated testimony the prosecution’s entire case was based was caught in several, um, inconsistencies while he was on the witness stand.

Deliberations began yesterday morning. Just over an hour into the deliberations we took a vote — 11 not guilty, 1 guilty.

You can probably guess the rest. The one holdout wouldn’t budge, even though (after two full days of attempting to “deliberate”) he was unable to explain why he was certain the defendant was guilty. The fellow changed his “reasoning” several times over the past two days, but not his guilty verdict. Finally his “reasoning” devolved into guilt by association — drugs were found near (not in, remember) the defendant’s apartment. A Yonkers detective said the drugs belonged to the defendant. Therefore, the defendant was guilty.

And yes, the juror was an elderly white man, and the defendant was black (as was the prevaricating detective). Do I think racism was a factor? Hell, yes. But I suspect stupid was a factor, also — the juror lacked the mental capacity to understand abstract concepts like “burden of proof” or even “evidence.”

I was the jury forepersonlady, so the composition and rhetoric of notes sent to the judge were under my purview. I became so rattled I could barely crank out cohesive sentences, and I guess my last note (of about 4:50 pm today) was unhinged enough the judge took pity on us and declared a hung jury.

And here’s the kicker — as a clump of us jurors hustled out of the courthouse, we encountered the defense attorney. And he guessed without being told which juror was the problem. Apparently his client, the defendant, had been the one to insist that man be seated on the jury over the attorney’s advise otherwise. The defendant had a “feeling” about the juror, the attorney said.

There’s a moral here, somewhere.

And yes, I was terribly disappointed that I didn’t get to stand up in court and announce a verdict. I’ve always wanted to do that. It’s unlikely I’ll get another chance.

I’m going to get tipsy now. Regular blogging resumes tomorrow.

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91 Comments

89 Comments

  1. D.R. Marvel  •  Dec 15, 2006 @7:14 pm

    Thanks for doing your civic duty, Barb…

    I skated tha last time I had jury dury…They had us outside the courtroom, ready to go through selection when the defendent copped a plea…And it was a murder case…I wasn’t at all disappointed not to sit through the thing…

    As a kid, I watched parts of a famous murder case in P.B. that seemed pretty surreal at the time…Doubt if they’ve gotten any better at it…

  2. Preston  •  Dec 15, 2006 @8:08 pm

    I’m surprised that you were even selected to be on the jury. Here in “almost” rural Louisiana if one has a grade school education they will be excluded from the jury because they are not usually of the defendant’s peer group. That unwritten requirement eliminates most thinking adults but wastes a lot of their time because they still get called for polling purposes.

  3. maha  •  Dec 15, 2006 @8:19 pm

    Preston — one of the jurors was a sure enough ER physician Another was a retired teacher with (I’m pretty sure) a master’s degree. I’m guessing more than half of the jurors were college graduates.

  4. Joe  •  Dec 15, 2006 @8:21 pm

    I kind of expected you would be chosen as the “forepersonlady”. I´m curious, did you give your occupation as “blogger” when asked?

  5. maha  •  Dec 15, 2006 @8:29 pm

    Joe — I don’t think I told the court I was a “blogger”; I think I said I was a “political activist” with a web site. But I may have used the word “blogger” at some point. I’m surprised that didn’t get me bounced.

    I got the honor of being forepersonlady because I was the first person chosen for the jury. The judge said that in his court, Juror Number One is always the foreperson. Several other jurors would have done the job at least as well.

  6. julia  •  Dec 15, 2006 @8:29 pm

    Actually, I’m kind of surprised they’d have a journalist as a forepersonlady, but then it’s a jury-voted position, isn’t it? (got myself excused from jury duty when I told the judge that the prosecuting attorney’s questioning of the jury pool was racist and never got to that point)

  7. Doug Hughes  •  Dec 15, 2006 @8:36 pm

    There is a lesson here but no solution. Some people have a slave mentality to authority figures. The idiot in question was sure the defendant was guilty because charges were brought by ‘authority’ and as a loyal citizen, he was going to support ‘authority’.

    The response I often get when I use the word ‘torture’ associated with the Bush administration is a look like I am deluded and unhinged. Bush is the president (authority). The USA is always ‘the good guys’. Torture is something the ‘bad guys’ do. Don’t bother me with the facts.

    Once, there was a majority in denial. If the polls are accurate, it’s becoming a minority. I will continue to bother family and friends with facts. I am making a dent in their complacnecy; their defenses are sounding hollow – to them, I think.

    Have a good ‘tipsy’, Maha.

  8. Swami  •  Dec 15, 2006 @9:04 pm

    I tried marijuana once..it made me want to rape and kill.

    What kind of weight was the defendant charged with?

  9. janinsanfran  •  Dec 15, 2006 @9:14 pm

    It is almost certainly a good thing that in your jurisdiction you can end up on a jury. That’s how it is supposed to work, isn’t it?

    Where I live, my actually serving would be unthinkable. I am called once a year and always excused. My unsuitability is 1) my profession is “researcher” which scares them all; 2) I do tend to know a little something about a lot of things and I tell the truth about that; 3) I know a lot of lawyers — so too often I know someone among the court folks.

    I’d like to serve if only to experience how it works. But that is simply not going to happen. Makes me feel “not part of the people” since I’m thought to be an unsuitable peer to any defendant.

  10. Chief  •  Dec 15, 2006 @9:23 pm

    Maha,

    I was a jury foreman on a 5 member civil trial. Unanimous with virtually no debate for the defendant. But I was also on a 12 person jury were there was a death but do not recall the exact charges (not murder). I was the lone holdout against conviction. I felt the dead person had contributed significantly to his own death by driving his motorcycle well in excess of the speed limit. Defendant’s problem was that he was poor. Anyway it was a hung jury.

  11. joanr16  •  Dec 15, 2006 @9:45 pm

    I’ve been a registered voter for 30 years and never once was called to jury duty. Just weird luck, I guess.

    I wonder what was up with the detective? It sounded like a grudge-match to me. Did the defendant have a long list of priors? (Or is that info even admissible?)

    Well, the wasted week is over. Enjoy those well-earned beverages. And thanks for filling us in as soon as you could. I was dying to know!

  12. maha  •  Dec 15, 2006 @10:01 pm

    It sounded like a grudge-match to me.

    There was definitely history between the detective and the defendant, but we weren’t allowed to know details.

  13. pecunium  •  Dec 15, 2006 @10:47 pm

    I’ve been in the jury pool once. It was interesting. The selection took a week (Civil trial). After hardship releases we numbered about 80 (I could look it up). When the last alternate was seated, there were six people who’d not been called.

    I was disappointed. I wanted to be on the jury. As I was leaving one of the att’ys told me I’d dodged a bullet, seems the clerk of the court misread the line, and my name was skipped over.

    It was interesting watching the various things people did to try and get kicked off, as well as the questioning.

    My favorite (released before selection started) was the woman who was getting married in a month (the trial was expected to last three weeks, at least). The judge said, “It’s not really a hardship, but I suspect you will be to distracted to properly serve.”

    The favorite denial was the patent att’t who tried to claim he’d miss giving a paper at a conference in London.

    “Excuse me, but is there some hardship here I’m not seeing?”

    I may have been the only one, save the lawyer’s who saw how solidly the guy had been slapped.

    TK

    TK

  14. Donna  •  Dec 15, 2006 @11:18 pm

    Maha, does the hung jury business mean that the defendant has to go through another trial? If so, that seems to unfairly give that rogue juror too much of a power wedge.

  15. uncledad  •  Dec 15, 2006 @11:18 pm

    “I’m going to get tipsy now. Regular blogging starts tomorrow”

    Maha,

    Too god dam bad you and your friends couldn’t get that dude off. Our legal system sucks. When just one man’s opinion can hold back the verdict of the hoard? Who heard of such a thing? Wait that’s what makes us a democracy. I enjoyed this post more than most. I noticed it was well written by you. Not some liberally edited montage of the “important” news items of the day. Maybe we could here your take on things a little more often.

  16. idlemind  •  Dec 16, 2006 @2:44 am

    Ouch; it’s a nightmare of mine to be on a jury with such a person.

    I’ve been on a jury six times, and been foreperson twice. The trials I’ve been on were split between civil (2) and criminal (4). In the latter case, each time we had a “why would the police arrest someone if he wasn’t guilty?” juror or two. But they’ve always listened to reason just as long as everyone was getting their chance to talk. (In one case, we did return several guilty verdicts while acquitting on other charges; in another the defendent was clearly guilty; in the rest the jury acquitted.) I’m glad I never had to deal with someone like your juror who simply wouldn’t listen. But it’s easy to see how it might happen.

    The worst time I had as a juror was when the foreperson went around the room and had us vote publicly before we’ve even gone through the evidence. That probably added at least half a day to deliberations as people overcame their defensive postures. Based on that experience, when I was foreperson I insisted that we keep our opinions to ourselves until we had gone through the evidence and instructions. That didn’t always keep people from announcing their personal verdict from the start, but they generally did so in a way that left it easier for them to back-pedal as necessary.

    Politics. It’s everywhere.

  17. PurpleGirl  •  Dec 16, 2006 @7:55 am

    joanr16 — Do you drive, do you have a driver’s license? The reason I ask is because I was a very regular voter for over 20 years and was never called for jury duty… until I got a non-driver ID and was in the motor vehicle records. (I live in Queens, NYC.) The jury board would swear that they take names from voter rolls and motor vehicle, but I think it’s the driver rolls that are used more often. Re: jobs that get you off a jury panel: I was once declined for a civil case involving a supermarket slip-n-fall damages suit. When asked what I did for a living I told them I was a paralegal working in Public Utilities law, but I also had worked as a copy editor for Matthew Bender (legal publisher) in the trial and evidence division. Being a paralegal was no problem but my experience at Bender meant I knew “more than the average person” about rules of evidence and the judge had the priviledge of letting me off the panel.

  18. Tim A  •  Dec 16, 2006 @8:14 am

    I understand your frustration. I was on a jury with the opposite issue – 11 guilty 1 not guilty. The evidence left no doubt, not just no reasonable doubt that the guy was guilty of armed robbery. He was caught within 3 hours of the robbery with the wallet, car and credit cards of the victim. But one jury refused to be moved. Only after 7 hours, when she realized she was going to be late for work did she change her mind. Then she said she still didn’t believe he was guilt, she just had to get to work. I almost changed mine to not guilt just to make her understand the gravity of the jury system. But since he was guilty, I didn’t. Changed my whole view of “trial by a jury of your peers.” This woman was not one of my peers.

  19. Dave the H.  •  Dec 16, 2006 @8:51 am

    I was on a jury once, a murder trial in Brooklyn, NY. The judge explained the process very clearly, especially the concept of “reasonable doubt.” The defendant’s lawyer was a bit of a screwball, tempermentally.

    The jury was mainly women, and I was the only white person. While we took three days to decide, it was basically amicable…although it took a while for one person to come around to the group judgment. We found the defendent not guilty because of reasonable doubt.

    Hey, the judge even sent us thank-you notes a few weeks after the trial.

    This is democracy, yes.

  20. maha  •  Dec 16, 2006 @9:04 am

    Not some liberally edited montage of the “important” news items of the day. Maybe we could here your take on things a little more often.

    I blog what I blog. You don’t have to read it.

  21. maha  •  Dec 16, 2006 @9:07 am

    The judge explained the process very clearly, especially the concept of “reasonable doubt.”

    So did our judge. Hell, so did the rest of the jury. We spent two solid days trying to explain “reasonable doubt” and “burden of proof” to this meathead. Close to the end of the day yesterday he was still complaining that the defense hadn’t proved the defendant wasn’t guilty.

  22. maha  •  Dec 16, 2006 @9:14 am

    Maha, does the hung jury business mean that the defendant has to go through another trial? If so, that seems to unfairly give that rogue juror too much of a power wedge.

    Well, yes, and several of us suspected the guy was grandstanding just because he enjoyed the power wedge. I wish we could have replaced him with an alternate on the grounds he was refusing to deliberate and was mentally incapacitated. Yesterday, in fact, he offered to resign voluntarily from the jury so that he could be replaced by an alternate. Unfortunately the judge had dismissed the alternates on the first day of deliberations.

    The hung jury means the defendant is still charged with a crime. It’s always possible the DA will just drop the charges and not put the county through the expense of another trial, however.

  23. Gordon  •  Dec 16, 2006 @9:57 am

    I was on a civil trial. The plaintiff had an excellent case (age discrimination); the defendants were lying worms (something the jury agreed on). The plaintiff had an eager, excitable, egghead lawyer. The plaintiffs found an 85 yr old amiable actor who had clearly studied jury distraction / bamboozlement techniques for years. The jury had a number of well educated members and many retirees. The judge slept (literally). Plaintiff lost, 11-1. Even a moderate actor beats a good lawyer. No one on the jury wished to realize that they had been bamboozled.

    Off-topic: per you predictions about Bush changing course (NOT):
    http://www.talkingpointsmemo.com/archives/011590.php

  24. Jim Shirk  •  Dec 16, 2006 @10:34 am

    I was on a similar jury, with three cops, all with different stories, trying to convict a (as usual) African American for marijuana sale. It wasn’t the lack of physical evidence, it was the inconsistency.

  25. maha  •  Dec 16, 2006 @12:58 pm

    Gordon, I never predicted Bush would change course. I have said many times he will not. What I predicted was that Congress will likely (sooner or later, sometime in 2007) come to a bipartisan agreement that the course must be changed, and may even agree how the course must be changed. The question is whether Congress has the constitutional authority to force the course to be changed. I think it does, but others disagree.

  26. Gordon  •  Dec 16, 2006 @1:48 pm

    Yes, Barbara, that’s what the (NOT) was for. Hmm, that’s at least twice my (perhaps) lame attempts at humor here have backfired.

  27. maha  •  Dec 16, 2006 @3:32 pm

    Gordon — sorry. I am one big raw nerve right now. It’ll be a few days before I recover, I’m afraid.

  28. entlord  •  Dec 16, 2006 @3:50 pm

    About 20%-30% of the population think that being arrested means a person is guilty and see the jury system as a chance for lawyers to earn money and for guilty people to get off. If, later, the convicted person is exonerated, the reaction is that either he “gamed” the system, found an activist liberal judge, or else had done other crimes which he had not been convicted of, so it was still OK that he spend years in prison.
    About the same number of people believe that Elvis is alive, that extraterrrestials visit us on a regular basis and GWB’s Iraq policy is correct because Saddam had WMDs and helped to finance/train the 9/11 terrorists.
    At one time, voting rolls were used so you knew the voters at least cared enough about the system to register to vote and then driver’s license lists were used so you could figure the jurors could at least pass the driving and written exam at DMV. Most recently, DMV has been issuing personal IDs which are not licenses which means you don’t have to pass any sort of test to end up on a jury or have any interest in the system. All you need is the world view that $12 per day is a great way to earn money and you are all set for jury duty. (since that was the argument of one guy who had hung a jury on a pissant charge. “Hey, don’t go so fast; we are getting $12 a day for sitting on our asses and doing nothing”)

  29. Preston  •  Dec 16, 2006 @5:10 pm

    Maha, I think it’s great that where you are they allow educated people to sit on juries. My point was that most defendants here have very little education or are generally considered to be uneducated “common” folk and therefore educated people would judge them too harshly (i.e., according to the written law).

  30. maha  •  Dec 16, 2006 @8:48 pm

    My point was that most defendants here have very little education or are generally considered to be uneducated “common” folk and therefore educated people would judge them too harshly (i.e., according to the written law).

    I doubt sociological studies or empirical evidence bear out that assumption.

  31. Robin  •  Dec 16, 2006 @10:17 pm

    I got called in for Duty in Brooklyn once. There they can’t go heavliy by DMV since so many NYC residents do not have cars. (my friend turned 30 before he learned to drive)

    It was a civil case, the family of a dead worker was suing the MTA for wrongful death.

    I tried everything I could thing of during Voir Dire.

    -First I told them I knew a lot about scaffolding and workplace safety, and would be able to tell if the worker was ordered to do something dangerous without proper protection.

    -When asked if I had a gruge against the city government, I said mayor Giuliani ran a fascist police state over the citizens, but I didn’t have a problem with the beauracracy.

    -When they asked about my backgroound I told them I was a Realistic Socialist, explaining that I am realistic in that Socialism is under attack, but I am not the old-school rock throwing Wobbly.

    None of that phased any of them. Finally one of the defendent’s lawyers was asking another juror if the ever got money from the city and I sheepishly raised my hand.

    It seemed that my summer job as Master Electrician in an outdoor music venue happened to be funded by the Parks department. Even though I never saw or even knew any city employee, my checks said New York City, Department of Parks.

    All the lawyers threw up their hands in disgust at all the time they wasted. After I was sent back to the main holding room, I coincidentally happened to be right on the other side of a partition when the lawyers called the judge to hash out their objection to certain jurors. (In NYC the lawyers Voir Dire without a judge, then call one to solve their objections).

    When they got to me, neither side wanted to cut me! But the judge was adamant, I received checks that were cut by the city.

    Never heard what happened to that poor family.

  32. Emily  •  Dec 18, 2006 @9:16 am

    I was on a jury in 1998. The guy was charged with two murders and the trial lasted all summer. It was one of the most interesting experiences I ever had. It was just luck, but all we jurors (14 of us, including alternates) got to be good pals. Some of us still have lunch together once in a while. I realize that most jury expereinces don’t turn out this way, but sometimes they do.

  33. Sharps  •  Dec 18, 2006 @10:17 am

    Maha-

    Are you sure that you were a fair and impartial juror? You begin your post by belittling the importance of the case as “it was a bleeping marijuana possession case.” The prosecutor, if she was doing her job, surely asked you during voir dire whether you felt a marijuana possession case was a worthwhile use of public resources, and whether you could still fairly decide based on nothing but the evidence and the law. I wonder – did that come up? If so, what did you say?

    It sounds like the People had a lousy case, but the mere fact that the marijuana was found near, not in, defendant’s home isn’t a problem for me. My car is near my home, not in it, but I still possess it.

    And the fact that it was a one-witness case doesn’t bother me – if I get robbed when I’m alone, you bet I’m going to expect the jury to believe me, with or without corroboration.

    If the detective was caught in inconsistencies, that sounds like he wasn’t credible. But I wonder, were these inconsistencies of real consequence? Because I’ve heard defense attorneys make mountains out of molehills, and seen jurors who were predisposed to acquit use those silly discrpencies to rationalize their outcome.

    Don’t get me wrong, it sounds like the People’s case sucked – the great ones almost never go to trial, they plead out – but it sounds to me like you went into it somewhat predisposed to acquit because it was “just a marijuana possession.”

  34. Steve  •  Dec 18, 2006 @11:11 am

    The State can’t insist on a panel of 12 jurors who all agree that marijuana possession is a deadly serious matter. It is what it is.

    When I had jury duty in NYC a couple years back, it was amazing how juror after juror said they had a problem with New York’s draconian Rockefeller Drug Laws. Many of them said they could never vote to convict, knowing that the sentences are out of control. And yet these laws remain on the books.

    There’s a democracy failure in there somewhere.

  35. maha  •  Dec 18, 2006 @11:24 am

    Sharps: “Are you sure that you were a fair and impartial juror?”

    Yes, I was. And you completely misread the post. Points:

    It was not a one-witness case. Actually, we heard several witnesses over several days. However, the crux of the matter — that the defendant was in possession (as defined by law) of marijuana found outside his apartment depended entirely on the uncorroborated testimony of one detective. The rest of the prosecution’s witnesses amounted to padding.

    The defendant had only one witness (his girlfriend) and did not take the stand himself. I don’t believe the girlfriend’s testimony made any difference to any of us.

    It sounds like the People had a lousy case, but the mere fact that the marijuana was found near, not in, defendant’s home isn’t a problem for me. My car is near my home, not in it, but I still possess it.

    Yes, but there’s a legal document called a “title” that is solid proof you own your car. The marijuana didn’t have a name on it, and it was found in a closet in an area that many people beside the defendant had access to. In order to convict, we would have had to know beyond a reasonable doubt that the closet was under the control of the defendant, and only the defendant, and the prosecution fell short of proving that.

    Please note that had the prosecution proven beyond a reasonable doubt that the marijuana did belong to the defendant, I would have had no problem voting to convict.

    But I wonder, were these inconsistencies of real consequence?

    Yes, they were massive, and related directly to the question of whether the defendant had sole control over the closet in which the drugs were found.

    if I get robbed when I’m alone, you bet I’m going to expect the jury to believe me, with or without corroboration.

    It was explained to us jurors that in a criminal case, the law says the burden of proof rests entirely on the prosecution. The defendant doesn’t have to prove he is not guilty; the prosecution has to prove he is guilty. If the case boils down to the prosecution’s word against the defendant’s word, then the law requires a “not guilty” verdict.

    it sounds to me like you went into it somewhat predisposed to acquit because it was “just a marijuana possession.”

    You would be wrong. I was only aggravated that a marijuana possession case took so much time.

    By the way, you can apologize to me for being an ass whenever you’re ready.

  36. smafdy  •  Dec 18, 2006 @11:35 am

    It always gets me – how do innocent people get convicted?

    As we have seen with the exoneration of death row inmates since the advent of genetic identification techniques, people do go to jail unjustly. Death row inmates are people whose lives are in the balance – the stakes are high, and the media pays attention. But what about people charged with lesser crimes that can’t be saved by DNA evidence? I’m willing to bet thet the percentage of the unjustly convicted increases proportionally with the number of people charged with various offenses.

    The question is: How does this happen?

    At what point does someone in the system (cop, prosecutor, judge), decide to ignore a lack of evidence (the fact is, if a person didn’t do something, then there couldn’t possibly be evidence that they did), and decide to proceed anyway? I understand that there are gray areas, but in the case of someone being undeniably innocent of doing a crime, there is no gray area: Someone used their power maliciously.

    Everyone else seems to be worried about the Supreme Court. I’m worried about the General Disrtrict Court. I have seen judges asleep during a trial with no jury.

    We need to open this branch of our Government up to scrutiny. Cameras in every courtroom, certified video copies of proceedings to all parties at the expense of the court and as a matter of right, and felony criminal penalties for malicious prosecution. Most importantly, membership in the Bar Association should not be a requirement to practice law, as it makes a very unsavory marriage of political, governmental, and private organizational interests.. A JD should be qualification enough.

    BTW, I’ve never been charged with or convicted of a crime. I’ve never served on a jury. I have watched a few trials and have diligently studied the Code, Rules of the Court, and Rules of Procedure for my state, since they became available on line.

  37. Sharps  •  Dec 18, 2006 @11:40 am

    Steve- the State insists on no such thing. Those 12 jurors could not have been chosen unless they each promised the judge, the ADA, the defendant and his attorney that they would set aside their personal feelings about the marijuana laws and judge the case solely on the evidence and apply the law as the judge instructed, even if they disagreed with the law.

    This is about the rule of law, which we liberals are getting very righteous about these days. Believe me, if (when?) George W. Bush is tried for violation of FISA and related laws, you are going to hope for jurors that will be honest about their views of the law during voir dire, and who then keep their promise to set aside those feelings and judge the case on the facts and apply the law as instructed.

    The “Rockefeller Drug Laws” have been mitigated recently by the state legislature. Is it a “democracy failure” that they haven’t been more drastically liberalized? Perhaps. But just because your small sample from NYC, the most liberal jurisdiction in all of New York state, disagreed with them does not mean citizens statewide reject them. I know a lot of liberals who feel drugs (even pot) are really, really bad.

    Let’s be consistent.

  38. Sharps  •  Dec 18, 2006 @11:48 am

    By the way, you can apologize to me for being an ass whenever you’re ready.

    And that apology will never be offered. My comments were to the point but at no time disrespectful, in sharp contrast to your juvenile name-calling.

    I’m done here.

  39. maha  •  Dec 18, 2006 @11:57 am

    My comments were to the point but at no time disrespectful,

    They were not at all to the point and they pre-judged me, which is something I do not appreciated. And yes, you’re done here.

  40. Tania R.  •  Dec 18, 2006 @12:04 pm

    Barbara-

    I don’t think Sharps misread you post. For one, you only mentioned one witness.

    Yes, but there’s a legal document called a “title” that is solid proof you own your car.

    But the law doesn’t require that. It only requires that a person have control over an object to find possession.

    Yes, they were massive, and related directly to the question of whether the defendant had sole control over the closet in which the drugs were found.

    Again, the law doesn’t require “sole” control, just control.

    If the case boils down to the prosecution’s word against the defendant’s word, then the law requires a “not guilty” verdict.

    Actually, that’s not true at all. Only if you find the prosecution witness not credible, which apparently you did.

    I was only aggravated that a marijuana possession case took so much time.

    Well….that still sounds like you don’t take marijuana laws seriously.

  41. maha  •  Dec 18, 2006 @12:04 pm

    The “Rockefeller Drug Laws” have been mitigated recently by the state legislature. Is it a “democracy failure” that they haven’t been more drastically liberalized?

    Please note that my problem with the trial was not about whether drug laws are good or bad. I feel strongly that my place as a juror was not to judge the law but the evidence that the law was broken. If it were up to me marijuana laws would be decriminalized, but I value the rule of law above my own opinion.

    My frustration with the prosecution’s case and the jury “deliberation” would have been exactly the same had the contraband been crystal meth or heroin or even weapons of mass destruction.

    For that reason, if the comments thread devolves into a debate on marijuana laws, I’m going to cut off comments. That is not what I was venting about.

  42. maha  •  Dec 18, 2006 @12:12 pm

    It only requires that a person have control over an object to find possession.

    Yes, and the prosecution didn’t prove that.

    Again, the law doesn’t require “sole” control, just control.

    If the drugs could just as easily have belonged to another tenant in the building as to the defendant, I’d say that shoots down a “possession” charge, wouldn’t you?

    ME: If the case boils down to the prosecution’s word against the defendant’s word, then the law requires a “not guilty” verdict.

    TANIA: Actually, that’s not true at all. Only if you find the prosecution witness not credible, which apparently you did.

    The judge’s instructions clearly said that the defendant [in a criminal case] had no burden of proof to prove he was innocent; the burden of proof belongs to the prosecution entirely. If a case boils down to the prosecution saying “ABC” and the defendant says “No, XYZ,” and there is no corroborating evidence of ABC (or XYZ, for that matter), then the defendant is presumed innocent. That’s the law in Westchester County, New York, anyway.

    Well….that still sounds like you don’t take marijuana laws seriously.

    I hope to god a judgmental twit like yourself is never on a jury.

  43. Lex  •  Dec 18, 2006 @12:37 pm

    Sounds like a case I covered about a decade ago — civil trial between Food Lion and ABC News over some undercover reporting. The jury split between 11 people who said ABC News was liable for basically nothing and 1 who wanted to sock it to “the media” for millions. So the jury, in violation of their respective oaths, “compromised” on something like $600,000 or $2 million, which the 4th Circuit later reduced to zero.

    I get called for jury duty every odd-numbered year like clockwork. Last couple of times out, I skated, which just makes up for the time before that, when I got stuck on a civil jury for four whole days before the parties settled. Talk about 12 angry men: We wanted to throw both parties in jail for life, and that was before the settlement was announced. We just thought they and their respective counsel were all jerks. :-)

  44. euphronius  •  Dec 18, 2006 @1:24 pm

    Samfdy:

    innocent people get convicted for some of the following reasons:

    - mistaken identity (where the defendant lacks an exonerating alabi)

    - corrupted or fradulent evidence (whether inentionally or negligently corrupted)

    - and sometimes defendants are convicted for THIS crome because, in teh past, they have been convicted for ThAT crime. While there is a general bar against using as evidence in a trial past criminal convictions of defendant, it is not absolute. A slick prosecutor can get that evidence in front of a jury sometimes.

    - incompetent public defenders. especially in those jurisdictions where the public defenders are lawyers performing pro bono.

  45. Tim  •  Dec 18, 2006 @1:34 pm

    I was on 3 different federal juries within a 6 month period while stationed at Ft Bliss Tx-El Paso-in the middle 1970′s, and was shocked at the minor nature of the cases. All were 1 day cases. 1 was where the cops tried to prove that a man was a drug dealer, they had lots of scientific evidence, but could not prove-they admitted as much-custody of either the marked money, or the drugs to the defendent. 1 was simple assult and battery, when a cop was pushed-not hit, beaten up or anything, just shoved. The last was the best. An illegal had tried to pull a gun on a very fat age 64 border patrolman, he thought that he could threaten the borderpatrol with the gun and get away. Unfortunately for him, the fat old cop, was the world record holder in quick draw and shoot, he could, and did in fact demonstrate in court, that he could draw his weapon in less than 1 second, the defence had tried to say that nobody could have drawn a gun that quickly(if the defendent already had his gun pointed at the cop) but he pretty much had the entire court laughing after that demonstration.
    My point, a large number of trials should never be brought, they are a total waste of time(like the trial that the blogger sat thru) is it because of the need for a large number of convictions? or is it just some dumb prosecutors? I have gone down to our local courthouse and watched some trials, both local and federal, and can’t see where much has changed since the 70′s. Still a lot of wasted time, and money on trials that should never have been brought. Don’t prosecutors listen to what their own witnesses are saying? Haven’t they ever heard the saying, never ask a question that you don’t already know the answer. Over the years I have seen way to many incompetent lawyers, on both sides.

  46. maha  •  Dec 18, 2006 @1:58 pm

    …a large number of trials should never be brought, they are a total waste of time(like the trial that the blogger sat thru) is it because of the need for a large number of convictions? or is it just some dumb prosecutors?

    That’s what I wondered. There must have been something about that case that we jurors were not permitted to know. Whether that “something” would have helped the prosecutor’s case I can’t say, of course.

  47. RadioCity  •  Dec 18, 2006 @2:07 pm

    I have been on a drug case jury. I have been on a case with a lying cop. I’ve been on other juries with people telling two different sides of the same story, and clearly neither was intentionally lying. For the record, I think cops lie about drug cases a lot. The drug laws are stupid, harmful, and useless. If I am ever on a drug jury again, it will take an awful lot to convince me to convict, even if the person is probably guilty. Reasonable doubt rules, and I think juries can help settle the question about what should be legal or not. That’s the reality of it all.

  48. maha  •  Dec 18, 2006 @2:26 pm

    RadioCity — the lead detective in “my” case was caught lying on the witness stand. For example, at one point the defense lawyer showed him some handwritten notes, which the detective looked at carefully. The lawyer asked if he recognized the handwriting and signature on the notes. The detective said no. Then the detective asked, aren’t those your notes? Well, yes, they were the detective’s notes, but he didn’t recognize them. Turns out they were notes on three prior arrests of the defendant by that same detective, none of which resulted in conviction.

    The detective was also caught in a lie about what he had placed in an evidence bag and whether a tool chest in which drugs were found had been locked with a padlock that belonged to the defendant. Turned out the tool chest — which had been confiscated by the cops as evidence –was missing a vital part (the lid) and could not have been locked.

    What I think possibly happened is that the detective found drugs in a storage area in the house (but not in the defendant’s apartment, which was the only part of the house covered by the search warrant) and fabricated a story about keys and padlocks to (a) cover his own ass, and (b) tie the drugs to the defendant. But unless we knew for certain that the drugs had been secured by lock and key owned by the defendant, there literally were several dozen other people who might have placed the drugs in the storage area where they were found.

    It’s amazing to me the District Attorney even bothered. It’s possible the defendant really is a bad guy and they were trying to get him on something, but this case was stupid.

  49. Effrenatus  •  Dec 18, 2006 @2:29 pm

    A close friend of mine was on a hung jury. She has been called back since, but she was dismissed during the selection process. She feels it was because they asked about prior jury experience. Neither side wants someone who was in a hung jury for fear that he or she was the problem. For better or worse, you’re probably free from jury duty for life.

  50. eyesoars  •  Dec 18, 2006 @2:31 pm

    If you want to get off of jury duty sometime, when the judge asks if you’ll vote on the law as given to you by the judge, say no.

    Go look up ‘jury nullification’ using google. There is a constitutional right for jurors to vote against conviction, even if the law has been broken — this was viewed by the founders as a last resort against abusive and tyrannical laws. The supreme court has found, however, that there is no law or legal requirement for jurors to be informed of this.

    Judges hate the concept, and don’t want to see it used in their courtrooms. This is the concept that allowed lynchings: juries would never convict. Now that lynchings (other than by the legal system) are gone, people seem to have forgotten about this tack.

    Look up FIJA (fully-informed jury association). There’s lots of interesting history here.

    I looked this up after being considered for a rape trial. The defense lawyer put me near the top of his list, and the prosecuting attorney was polite, but clearly wanted me nowhere near her jury (she used a peremptory challenge on me). During the questioning, however, the judge asked me whether I would follow his direction as to law, and it struck me as odd, not so much immediately, but later when I was thinking about the implications. I started poking around and turned up a few things…

  51. maha  •  Dec 18, 2006 @2:37 pm

    If you want to get off of jury duty sometime, when the judge asks if you’ll vote on the law as given to you by the judge, say no.

    I don’t want to lie to get off a jury. The truth is I had no problem at all with the law as given to us by the judge.

    There is a constitutional right for jurors to vote against conviction, even if the law has been broken

    As I said in an earlier comment, I respect the rule of law above my own opinions. If the law has been created through democratic processes, then it really ought to be uncreated that way. Under some limited circumstances involving basic human rights of speech and security of one’s person and such I might decide otherwise, but I don’t put a right to possess a pound or so of marijuana in that category.

  52. maha  •  Dec 18, 2006 @2:40 pm

    For better or worse, you’re probably free from jury duty for life.

    That actually makes me sad. Were it not for the one flaming idiot juror it would have been a positive experience, even thought the trial was stupid.

  53. eyesoars  •  Dec 18, 2006 @2:52 pm

    I’ve never actually tried to get off a jury; I think it would be interesting (tho’ likely boring).

    But I also don’t think I can answer the question the judge asked me in the affirmative any more. If I think that the judge’s directions to me would likely result in a travesty of justice, I’ll vote as my conscience directs. I didn’t know the judge at the time he asked that question, and if I had answered “yes” (which I did at the time), it would have bound my future behavior. I won’t do that again — I will leave wiggle room for my conscience. And I think that will keep me off of all future juries — and I don’t want to be, which I think is sad, if not wrong.

  54. maha  •  Dec 18, 2006 @3:03 pm

    And I think that will keep me off of all future juries — and I don’t want to be, which I think is sad, if not wrong.

    If you don’t respect law, maybe you should be off juries.

    The law in our case wasn’t the problem. The law and the judge’s instructions clearly protected the defendant from wrongful conviction, and that’s a good thing. All we were there to do was determine the facts of the case based on the evidence presented in court; we were not there to decide what the law ought to be. The jury was hung because one juror did not (or could not; I think he was mentally impaired) understand and follow the instructions given to us by the judge that respected the rights of the defendant and the presumption of innocence.

  55. Fraud Guy  •  Dec 18, 2006 @3:05 pm

    I sat on a jury for possession of a controlled substance (cocaine). Defendant (hispanic female) was labeled suspicious for turning into a gas station and entering the convenience store while driving boyfriend’s car. She allowed search, and matchbox with substance was found at bottom of a full cupholder.
    Possession is valid if person “has control”, but defendant claimed did not know, not her car. Officer let boyfriend take car while bringing in defendant and substance. After prosecution finished, I wondered why there needed to be a defense, as they did not show that defendant knew of substance. (The judge had instructed that we would have had to convict by the letter of the law (no notification of jury nullification).)
    After defense rested, it took us just over 2 hours to declare not guilty, with votes of 10-2, 11-1, and (finally) 12-0. The judge apparently wasn’t concerned, however; she let the defendant leave to pick up her child from care while we were deliberating.
    Afterwards, I was talking to the prosecutor & the defense attorney; apparently the defendant had been counseled to accept a plea, despite the fact that I heard much more evidence to go after the boyfriend than her. When I asked the DA about probable cause, he said that the standard for that wasn’t very high. Apparently not.

  56. tb  •  Dec 18, 2006 @3:31 pm

    And yes, I was terribly disappointed that I didn’t get to stand up in court and announce a verdict.

    You have to deliver them like Charlton Heston as Moses. And then only the guilties are really satisfying.

  57. Nathanael Nerode  •  Dec 18, 2006 @4:04 pm

    “Those 12 jurors could not have been chosen unless they each promised the judge, the ADA, the defendant and his attorney that they would set aside their personal feelings about the marijuana laws and judge the case solely on the evidence and apply the law as the judge instructed, even if they disagreed with the law.”

    This is contrary to Supreme Court precedent and tradition dating back to Magna Carta, FYI. The right of jury nullification (the right for a jury to decide that a criminal law is unfair and to therefore acquit someone who is guilty according to written law) is actually guaranteed by Supreme Court precedent. It is also documented that it is one of the reasons the right to trial by jury was originally introduced in England, back when the King could just create unfair laws all on his own.

  58. Nathanael Nerode  •  Dec 18, 2006 @4:12 pm

    “I know a lot of liberals who feel drugs (even pot) are really, really bad.” Actually, FYI, “Sharps”, I agree that they’re really, really bad.

    But like most thoughtful liberals, I just think prohibition doesn’t work, and in fact backfires. More people drank during alcohol prohibition than before or afterwards; I know quite a few people who only tried drugs *because* they were illegal and therefore “cool” and “naughty”. The drug laws are also used as an excuse to go after entirely innocent people who happen to be *near* drug users, as is well documented.

    Not all bad things should be outlawed.

  59. ninja3000  •  Dec 18, 2006 @4:37 pm

    Regarding the lone jury holdout — my first jury duty was at an assault trial in Manhattan. Half of us were college-educated white collar types — including a Wall Streeter in his early 20s, a Yale grad. Eleven of us agreed that the case should not have been brought to trial, that it was a simple street confrontation between 2 dudes who had a history with each other. The Yalie holdout was clueless about life on the street and could not fathom our arguments that this was just a fight between a couple guys and not much of a case. His sole “guilty” vote meant that we all had to spend a night sequestered in a Staten Island hotel… The holdout had neglected to bring an overnight bag to court, as the judge had suggested the previous day. Next day we went directly back to the courtroom — with Mr. Holdout now resplendent in a hopelessly rumpled, expensive suit that he slept in. He quickly changed his vote before the rest of the panel pummeled him.

  60. eyesoars  •  Dec 18, 2006 @4:44 pm

    “If you don’t respect law, maybe you should be off juries.”

    It’s not a matter of respecting the law, it’s a matter of wanting justice.

    The constitution, whence all laws derive, specifically allows jurors to vote against conviction if they think the law is wrong (or for any other reason). I don’t particularly care what you think about drug laws (tho’ I think they’re wrongheaded and not working), but many, many laws are simply bad — licenses for abuse. They are produced by politicians, working for political ends. They’re frequently passed even when unconstitutional, unfair, or simply stupid and counterproductive.

    Laws can be applied in ways entirely contrary to the legislature’s intent. Law can become obsolete. Law can be applied unfairly — prosecuting attorneys have enormous lattitude and power. Laws can simply be unjust. And the constitution specifically allows for jurors to use their judgement in matters of law.

    IMO, this isn’t about “not respecting law”, but a matter of one’s civic responsibilities.

    Is democracy an end in itself, or simply a means? We have a constitutional representative democracy, with all the ideals, compromises, and flaws that entails. I hope the end is not simply democracy, but a fair and just society.

  61. maha  •  Dec 18, 2006 @5:15 pm

    The constitution, whence all laws derive, specifically allows jurors to vote against conviction if they think the law is wrong (or for any other reason). I don’t particularly care what you think about drug laws (tho’ I think they’re wrongheaded and not working), but many, many laws are simply bad — licenses for abuse. They are produced by politicians, working for political ends. They’re frequently passed even when unconstitutional, unfair, or simply stupid and counterproductive.

    That’s fine, and I can appreciate that sometimes conscience dictates that the law is wrong, but that wasn’t the case with this trial. I rather doubt it’s the case with most trials, only exceptional ones. And if you’re sitting in the jury box with some premeditated crusade about unjust laws and not really paying attention to the evidence in the case, you’re not being a good juror. And I sure as hell wouldn’t want to have to deliberate with you.

    In fact, in “my” case the law protected the defendant nicely. The juror who screwed him was the one who wouldn’t follow the law. You’re saying you think your first responsibility is to apply your personal opinion to the case, which is what the juror from hell thought also. Excuse me if I disagree.

    IMO, this isn’t about “not respecting law”, but a matter of one’s civic responsibilities.

    Our first civic responsibility as jurors is to protect the civil liberties of our fellow citizens who are on trial. By following the judge’s instructions and following the law as he explained it to us, eleven of us tried to do that. We voted “not guilty” based on the law and the evidence. One individual thought that his duty was to apply his personal opinion to the case, and he voted “guilty.”

    Do you see what I’m saying? This “I don’t give a shit about the law” thing cuts both ways, and most of the time (I suspect) it’s going to cut against civil liberty, not for it.

    That’s why you have to be VERY CAREFUL if think your first responsibility is to pass judgment on whether you agree with the law that allegedly was violated and not the evidence in the case.

    I realize that once in a while the law is unjust. I think, for example, that if the defendant had been a cancer patient who needed marijuana to get through chemotherapy, I would have voted not guilty even if the “possession” case had been clearer. But I think such cases are the exception.

    Is democracy an end in itself, or simply a means?

    Both, I think. If we make it routine to set aside democratic processes to impose our personal views on people, even when we mean well, in the long run we’re going to do more harm than good. Your personal will may be fine, but somebody else’s might not be. I’m not saying that setting aside the law should be impossible, but I am saying it shouldn’t be easy, or routine. Do you see why?

    We have a constitutional representative democracy, with all the ideals, compromises, and flaws that entails. I hope the end is not simply democracy, but a fair and just society.

    Exactly. And in the case in question, the law we applied protected a fair and just society.

  62. rlb  •  Dec 18, 2006 @5:50 pm

    A couple of years ago I was in the jury pool and was called in for selection on a marijuana possession case vs. a young black man. I raised my hand during voir dire (sp??) when the judge asked if anyone felt they couldn’t pass judgment on another human being for any reason. I was called to the bench with the prosecutor and defense attorney and was asked to explain. I told the judge that I’d smoked the defendant’s weight in marijuana by the time I was his age without as much as a parking ticket and I wasn’t about to send anybody to jail for that. I respected Karma enough not to call that kind of mojo down on my head. Needless to say I didn’t serve on that case.

  63. Thumb  •  Dec 18, 2006 @5:55 pm

    “I know a lot of liberals who feel drugs (even pot) are really, really bad.”

    And I know a lot of liberals who feel unsaturated fats (even basic sugars) are really, really bad. And I also know from professional experience that because of our drug laws, pot is 100x easier for minors to aquire than alchohol.

    So what’s your point?

  64. maha  •  Dec 18, 2006 @6:12 pm

    rlb — you called karma on your head by shirking your duty. You might have been the juror who encouraged the rest of the jurors to be fair and unbiased toward the defendant, for example.

    The jury’s job is not to judge the individual on trial but to judge the facts of the case. I don’t know anything about the man whose trial I heard last week except that he used to live in Yonkers. All I do know is that the prosecution did not prove that the marijuana that detectives said they found near the defendant’s apartment was the defendant’s marijuana.

  65. Joe  •  Dec 18, 2006 @6:43 pm

    My first experience … while in college … in jury duty involved a drug case. A typical buy/bust case in the Bronx. It involved four counts. The jury basically held that half of them were not proven, sort of on technical grounds, as I recall. The suburban white mom sort was the most sympathetic to the defendant, who, honestly, was clearly “guilty” as in surely he wanted to buy the drugs etc.

    You are going get racism on the jury, various ways. Plus stupidity. And other bias. Such is life. My other trial involved a heinous crime. It ended with a hung jury. To say we “deliberated” would be a bit generous. One father on the jury not surprisingly saw the girl as basically his child. Another on the jury it turns out had something similar happen to her. Others were sympathetic. I was annoyed she was on the jury.

    Also shown was sympathy for the young woman asst da, who was outmatched given her opponent was a wily veteran, a former prosecutor to boot. And reliance on slim evidence that really didn’t prove anything. So it goes.

  66. maha  •  Dec 18, 2006 @7:11 pm

    Joe — With the exception of the one juror I don’t think my jury was influenced by either sympathy or prejudice toward the defendant. It was not a case that stirred up a lot of emotions, I guess. There was some irritation with the prosecutor and with the lead detective, but that irritation was based on the flimsiness of the case.

  67. Kathryn in California  •  Dec 18, 2006 @7:19 pm

    Maha,

    What did you think of the voir dire process? I assume they asked a bunch of questions- did anyone, at any time, request privacy in answering a question?

    The last two times I’ve been called for jury duty, I didn’t reach the questioning part myself. But I was surprised at how personal some of the questions were, and how the potential jurors seemed quite comfortable at answering all the questions in front of dozens of strangers.

  68. maha  •  Dec 18, 2006 @7:35 pm

    What did you think of the voir dire process? I assume they asked a bunch of questions- did anyone, at any time, request privacy in answering a question?

    Several people were interviewed privately, although I was not. Jurors were given the option of replying to a question privately if they wished. I don’t remember any really intrusive questions during the “open” voir dire.

  69. rlb  •  Dec 18, 2006 @9:17 pm

    I don’t think I did shirk my duty. I was asked whether I could judge the man and I couldn’t. Should I have lied and said I could render an impartial judgment? Was it my duty to lie my way onto the panel only to attempt jury nullification? Just asking. And besides, I’ve served on 2 murder juries (not capital) and was a foreman on a civil case all in the past 8 years. I’ve gone the second and third mile for the judicial system.

  70. maha  •  Dec 18, 2006 @9:59 pm

    rlb — I apologize. I misunderstood what you wrote.

  71. Howard Appel  •  Dec 18, 2006 @11:11 pm

    Nathanael Nerode: Do you have a cite to a particular Supreme Court case that upholds jury nullification? I don’t recall studying one in law school (but criminal law was not my focus) and I would like to read the case. Thanks.

  72. Deth  •  Dec 19, 2006 @3:23 am

    “Do I think racism was a factor? Hell, yes. But I suspect stupid was a factor, also [...]”

    WOW! Stupid AND racist?!?! Don’t see that combo very often!

  73. erblack  •  Dec 19, 2006 @8:36 am

    I feel compelled to say a word in defense of commenters #34 and #41, towards whom I felt you were… a little oversensitive, maybe? Maybe you have no tolerance for being questioned on any level, but I thought both comments were respectful and topical. You accused the one of being judgmental because he asked if you were “predisposed to acquit”, and the other of prejudging you because she agreed that the way you phrased your argument made it “sound like you don’t take marijuana laws seriously”. I only see one party to this squabble who I thought was unreasonably presumptuous and judgmental- check the mirror. And even if you were offended by the question, what was the point of calling one an ass and the other a “judgmental twit”? Is it not possible to keep the tone of the exchange basically civil? If you bother to respond to me, you can fairly call me judgmental, because I thought you were a bit oafish. Hopefully, that’s you on a bad day.

  74. erblack  •  Dec 19, 2006 @8:40 am

    “WOW! Stupid AND racist?!?! Don’t see that combo very often!”

    Actually, that combination’s pretty common.

  75. maha  •  Dec 19, 2006 @8:46 am

    erblack — the commenters were making assumptions without knowing the facts. I hate that, whether the assumptions are about me or not. If they’d asked questions to clarify what my problems with the trial were before passing judgment, that would have been different, but they didn’t.

    And that’s me all the time. Deal with it, or rest your eyes elsewhere.

  76. Diogenes Of Pumpkintown  •  Dec 19, 2006 @11:03 am

    Just a few points in response to some of the commentary above:

    Theoretically, the prosecution can indeed try the defendant from maha’s case again, but as a practical matter, no prosecutor in his/her right mind would bother to retry a case where the jury was hung 11 to 1 in favor of acquittal. If the case is so bad that 11 out of 12 jurors were voting to acquit, there is no reason whasoever for any prosecutor to reasonably hope that 12 out of 12 jurors will vote to convict next time around. The prosecution will drop the case.

    “Reasonable doubt” does not mean that if the outcome of a trial comes down to a swearing contest between a single witness for the prosecution versus a single witness for the defense, that the jury must acquit. The role of a jury is, among other things, to assess and weigh the credibility of the witnesses. A jury can always find that one witness is credible and the other isn’t.

    Regarding jury nullification: the power of jury nullification is built into the jury system inherently. A jury person has the inherent power to return a vote of “not guilty”, no matter what the evidence says. A juror can say “not guilty”, and there is no one who can question or challenge him afterwards regarding the reasons for his verdict

  77. caseynm  •  Dec 19, 2006 @1:18 pm

    Was there any reason to believe that the detective planted the evidence? This case smells real bad, and it does sound as if the detective/prosecutor really wanted this guy.

  78. maha  •  Dec 19, 2006 @1:38 pm

    Was there any reason to believe that the detective planted the evidence?

    Yes, that was a possibility we considered, although with the evidence we had we could only speculate.

  79. maha  •  Dec 19, 2006 @1:52 pm

    “Reasonable doubt” does not mean that if the outcome of a trial comes down to a swearing contest between a single witness for the prosecution versus a single witness for the defense, that the jury must acquit. The role of a jury is, among other things, to assess and weigh the credibility of the witnesses. A jury can always find that one witness is credible and the other isn’t.

    The operative phrase here is not “reasonable doubt,” but “burden of proof.”

    Also, to us the detective was not just a “witness” for the prosecution; he was an agent of the state, and in fact he was the lead detective in charge of the investigation that lead to the search warrant (which we did not see) that brought about the search that led to the arrest. He was not just a disinterested observer, in other words. And it was just way too obvious from his testimony that he was not being honest with us.

    If the one witness had been some passerby who said he saw the defendant with the drugs, with nothing to gain from the conviction, we might have given that testimony more weight. But the judge made it clear to us that the prosecution had the BURDEN OF PROOF beyond a reasonable doubt, not the defendant. We interpreted this to mean that if the prosecution couldn’t prove to us (beyond a reasonable doubt) that the story the detective told us was true, then our duty was to acquit; the defendant didn’t have to prove anything. Indeed, he really didn’t. We had a lot of reasonable doubt about the defendant’s side of the story also. But since the burden of proof belonged entirely to the prosecution — the judge was very clear about this — then the eleven of us understood that the only responsible verdict was not guilty.

  80. Diogenes Of Pumpkintown  •  Dec 19, 2006 @2:10 pm

    maha, I am well aware of the burden of proof in criminal cases. As you accurately say immediately above, the prosecution has the burden of proof, and must prove its case beyond a reasonable doubt.

    However, this does not mean what you were originally claiming when you stated: “If the case boils down to the prosecution’s word against the defendant’s word, then the law requires a ‘not guilty’ verdict.”

    Cases, and convictions, happen all the time in the criminal justice system where it is simply a single police officer’s word against the defendant’s. A simple example where such scenarios are commonplace is in trials for speeding, where the only witnesses are often a single police officer who testifies that the defendant was speeding, and the defendant who testifies that he wasn’t. The fact that the prosecution has the burden of proof, and that proof must be beyond a reasonable doubt, in no way precludes a jury from returning a verdict of guilty.

  81. Diogenes Of Pumpkintown  •  Dec 19, 2006 @2:14 pm

    Btw, to clear up any possible confusion, I am not faulting the stance that you and the 10 jurors who agreed with you took in your case whatsoever. From what you have said about the case, I think it clear that the verdict should have been “not guilty.”

  82. John Palmer/LongHairedWeirdo  •  Dec 19, 2006 @2:22 pm

    Hi, Maha… listen, I don’t want to be insulting, so I’ll speak calmly and not use any dirty words and that means I’m being polite. Everyone knows you can’t be impolite when you’re not using dirty words.

    I think that you’re not being honest with us in claiming you were a fair and impartial juror. In fact, I question your judgment about the entire case. So, I’m going to ask some questions. Just because these questions imply that I can’t trust your judgment and think you’re incompetent enough that you haven’t thought of them, since they’re only questions, they can’t be insulting.

    Did you get dressed on days you appeared for jury duty? Showing up naked might have influenced the jury in a negative manner. And did you recognize that they were speaking English, not Norwegian, at the trial?

    Also, did you only use clearly marked restrooms for elimination, or did you use the broom closet? Using the broom closet as a bathroom is highly unprofessional.

    And you know, despite your having claimed to respect the law, I don’t think you do, because you didn’t say things the way I would say them. But I didn’t say that you don’t respect the law, so don’t pretend I did! I simply said that I don’t think you do, and that’s something else entirely!

    Now, I know you might think there are some really insulting implications in the questions I’m asking, but since I didn’t directly insult you, don’t you dare take offense or you’ll hurt my feelings and then I *will* have to call you names and stalk off angrily.

  83. eyesoars  •  Dec 19, 2006 @3:43 pm

    “Do you see what I’m saying? This “I don’t give a shit about the law” thing cuts both ways, and most of the time (I suspect) it’s going to cut against civil liberty, not for it.

    That’s why you have to be VERY CAREFUL if think your first responsibility is to pass judgment on whether you agree with the law that allegedly was violated and not the evidence in the case. ”

    Yes, I understand what you’re saying. But you’re imputing to me things I did not say — or mean.

    I pointed out that my first duty as a juror is to see justice served. For the most part, this does indeed involve following the judge’s direction with regard to the law. Fine; I’ve not disagreed with anything.

    HOWEVER, and this is a BIG however, there will be exceptions (though probably not in any case I ever see as a juror). In my case, I noticed that before the trial ever started, the judge asked whether I would follow his direction on matters of law and weighing the evidence. At the time I responded I would.

    Thinking about it later, I should not have. I looked around, and found out why I should not have, and the effect that this has on jurors.

    (1) In agreeing to vote with the law as the judge instructs me, I may be misinformed or underinformed. In re: jury nullification, the judge almost certainly WILL NOT tell me I have any right to do this. Few people seem to be aware of their “rights” in this regard.

    (2) By answering the question about following his direction, I committed myself to an (admittedly hypothetical) possible perversion of justice. If I did so and then voted my conscience against his directions, it’s possible that I could have been found in contempt of court for refusing to follow his direction. By answering truthfully (“probably”), the judge will also probably dismiss me on his own volition for cause (others I have known who did answer the question in the negative have had this happen). Also by answering in the affirmative, I’ve biased myself towards following the judge’s direction; this may or may not be a good thing.

    (3) Juries can nullify laws. I do not always think this is a good thing; as I pointed out, it allowed open air lynchings in broad daylight. But the converse allows truly evil laws to do enormous harm: e.g., the Waco jurors who cried when they found out what their conviction implied, and would have voted acquit if they had known.

    Thus, I think it is incumbent on jurors not to take their jobs lightly. Nor do I think they should take on their jobs in ignorance — no matter that the judge is educated: doing so, IMO, is an abdication of one of a citizen’s most important duties. The FIJA agrees. (Note that I’m NOT implying that you took your duties lightly.)

    In this context, “Ignorance of the law is no excuse” means something entirely different, but’s it’s still worth a thought.

    When I regularly see convictions with draconian sentences for absurd “crimes” (e.g., telling a boyfriend to call someone back (the someone wanted to buy drugs, which she may or may not have known)) I think it especially behooves us to remember the law can be an ass.

    The goal here, IMO, is a fair and just society. Given the current incarceration rates in this country, it’s clear we’re not doing a very good job.

  84. Diogenes Of Pumpkintown  •  Dec 19, 2006 @4:03 pm

    eyesoars wrote: “If I did so and then voted my conscience against his directions, it’s possible that I could have been found in contempt of court for refusing to follow his direction.”

    No, don’t worry about this possibility. A juror in a criminal case has an absolute power to vote “not guilty”, with no requirement to explain the reasons for the vote to anyone whatsoever, the judge included.

    Otherwise, I tend to agree with your point of view regarding jury nullification.

  85. maha  •  Dec 19, 2006 @4:48 pm

    eyesoars: I don’t disagree with you, but I was a tad alarmed at the way you are pushing jury nullification with such evangelistic zeal when it has nothing whatsoever to do with the case at hand. It’s the blazing cross of righteousness that put me off, I think. Gotta watch that.

    It’s a matter of perspective. If you assume that your FIRST duty as a juror is to judge whether you like the law or not, I think that’s irresponsible, and also disrespectful to your fellow citizens who may disagree with you. If there’s something about the case that nags at your conscience (e.g., the cancer patient caught smoking a joint after chemotherapy) then by all means nullify the law. But IMO you’re primarily there to see to it that the defendant is getting a fair trial. If the trial seems fair and the evidence against the defendant seems solid, then I think choosing a not guilty verdict is not something one should do for frivolous reasons, even though you’re within your rights to decide any way you want. If on the other hand this particular case has mitigating circumstances that make you think a not guilty verdict is just wrong, even though the law was broken, I respect that. But such cases are rare, I suspect.

    In our case I had no idea what kind of sentence the defendant might have received had he been found guilty. The judge wouldn’t tell us, and he said that’s something we shouldn’t even be thinking about. We should look only at the facts of the case. If I had known that the guy would have received 10 years in a penitentiary for simple marijuana possession, that would have been a problem. But I honestly didn’t know, and the prosecution’s case was stupid, so it wasn’t an issue.

  86. Susan  •  Dec 19, 2006 @6:01 pm

    “And the fact that it was a one-witness case doesn’t bother me – if I get robbed when I’m alone, you bet I’m going to expect the jury to believe me, with or without corroboration.” – someone above

    I won’t necessarily believe you. I know how hard it is under violent or threat-of-violence to remember things exactly. I would believe that you got robbed, but not that you remember the person exactly.

  87. maha  •  Dec 19, 2006 @6:49 pm

    I think one part of this case that people aren’t picking up on is that the only plaintiff in this case is the government. In other words, the case was not between one citizen and another citizen. It was between the government and a citizen. So the “If I get robbed” model does not apply. If the defendant had been accused of doing harm to another citizen, I might have looked at it differently. But when the case is the government versus a citizen, the government had better have a damn good case.

  88. Diogenes Of Pumpkintown  •  Dec 19, 2006 @8:32 pm

    maha said: “I think one part of this case that people aren’t picking up on is that the only plaintiff in this case is the government. In other words, the case was not between one citizen and another citizen. It was between the government and a citizen. So the ‘If I get robbed’ model does not apply.”

    Of course it applies. Robbery is a crime. Crimes are prosecuted by the government in criminal court. In a criminal case, the victim of the crime is merely a witness. The case itself is the government’s.

  89. maha  •  Dec 19, 2006 @10:07 pm

    Diogenes — who was the victim in the marijuana possession case? Nobody; there was no victim. That was my point. Of course the goverment prosecutes criminal cases.

    I think it’s time to cut off comments. This is getting annoying.

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