Thursday, December 30, 2010

Jury development

Dan S posted this to a local Libertarian discussion group.

FIJA would be pleased!

Billings Gazette: Missoula District Court: Jury pool in marijuana case stages "mutiny."

It happens that I just posted the book, *Ethics of Democracy* by Louis F. Post, with a chapter called "Trial by Jury."
http://www.savingcommunities. org/docs/post.louisf/ethics65.html

Here are some interesting passages.

"That insult to the jury [a judge berating their decision] was worse than contempt of court. It was worse than a breach of judicial decorum. It was a crime against democratic government. For it was calculated, by intimidating jurors, to undermine the independence of juries and destroy the integrity of the system of jury trial. And the worst of it all is that this instance is only one among many that indicate a disposition on the part of some judges to reduce trial by jury to an empty form with only a curious historical meaning...."Juries are sometimes corrupt and they sometimes make mistakes. But the innocent prisoner has better guarantees of acquittal at the hands of a jury, than at the hands of a judge expert in the work of 'railroading' criminals; and the guilty man has but little better chance of escape. Though juries do make mistakes in deciding questions of fact, it is hardly conceivable that they make as many as it appears from the law reports that judges make in deciding questions of law; and though they be occasionally corrupt, neither are judges always immaculate. There are few lawyers of large experience who will not concede that as a rule, even when juries seem to be mistaken, they get at substantial justice.

"But the judicial function of juries is not the important one. As De Tocqueville says, the jury's function as a judge in particular cases is subordinate to its function as a political institution. In the nature of things in criminal cases, if the jury decides at all, it must decide both fact and law. Legal experts may advise, but the jury must decide. So long, therefore, as the independence of the jury can be preserved, individual liberty cannot be quite destroyed. All other free institutions might go, even the suffrage might be restricted to the very rich or the highly educated, yet, if the penal law were administered by independent juries drawn from the body of the people, the grosser forms of tyranny would still be held in check.

"That explains the tendency to minimize the function of juries. With the jury system out of the way or become a mere form, and experts invested with power to punish infractions of the law, our government would go on developing into a government by experts until it had reached the inevitable climax, government by a single expert born to his place and specially educated to his function - the government of a czar.

"Whoever will stop this tendency will be a benefactor. Some exceptionally courageous juror may yet volunteer for that duty. If, when a judge in some other case berates the jury after the manner of the judge in the kidnapping case, a member of the jury will rebuke him, that juror will have performed a most valuable public service. It should not be done pertly, nor lightly, nor rashly; but in self-respectful manner, seriously, earnestly, decisively, and with confidence in his rights as a juror and consciousness of his imperative duty as a citizen of asserting those rights....

"Unless jurors do assert themselves by insisting upon a due recognition from the bench of their rights and dignity, the process of reducing juries to a place in which they will perfunctorily record the decisions of judges will go on apace; and judges, having usurped the functions of juries, will become the real masters of society.

Sent on the Sprint® Now Network from my BlackBerry®

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