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Monday, June 13, 2005

Jacko's Freedom and its Significance

According to the NYT, Jackson's jury acquitted him on all counts.  I haven't been following the case carefully so I offer no specific thoughts here to the case.  However, any time a jury deliberates for several days, I think it's a good sign that some doubts are really being ventilated; the persisting question is how reasonable they are. 

It takes a certain kind of confidence -- perhaps bull-headedness -- to reach the conclusion that others who have resisted assigning guilt are doing so unreasonably.  After all, they are no doubt aware that if the person is not convicted, he may pose a threat to their children or those of their friends and family.  What the celebrity justice system does, among other things, but also at bottom, is remind people vividly that people they care about (siblings or stars) are at the hands of a clunky machinery of justice, run by mortals who sometimes make mistakes.  The experience of watching someone you care about become accused and tried makes you grateful for the procedures and rights we have, and vigilant about their protection, and in some cases, their extension. 

Which brings me to the Allen charge, discussed below by David.  If what I wrote above is correct, then I'm not really sure why Allen charges are thought to be effective, let alone coercive.  If I had been a juror who had reached a decision to acquit after careful deliberation, I simply would not relent.  Conversely, if I had reached a decision to convict, I would in most cases, in most times, be reluctant to gather unanimity.  I guess I would be bull-headed in defense of pluralism there.  There should just be greater willingness to acknowledge that the case was too close to assign guilt.

Indeed in such cases, my feeling, at first blush, is that there shouldn't even be an opportunity for re-trial, even if the jury is not unanimous about its acquittals.

Jackson's lucky in that he secured unanimity.  The real tragedy of our system, to my mind, is that hung juries don't serve as acquittals themselves.  I understand the need for unanimity in conviction.  But I think unanimity for acquittals is crazy.  The worst part about requirements for unanimity, at least in the federal system, is that it forecloses meaningful development of the law and is incredibly unfair to defense litigants.

Imagine a case where you're representing a defendant and you have a hung jury.  The judge refuses to grant you an acquittal as a matter of law because she thinks the facts could lead a reasonable jury to conclude that the defendant was guilty and because she misunderstands and misinstructs the applicable law.  (I've had this exact scenario before.)  Notwithstanding the legal errors, you cannot appeal the judgment -- because it's not deemed final since it was a hung jury.  Your poor client now has to face a new trial again before he can secure appellate review of the first trial; what's more, the government has already had a dry run in its case and has seen the defense strategy in full.  Outrageous.   On what basis can unanimity for acquittals be defended, especially in a system like this?

Lucky Jacko.   

Posted by Administrators on June 13, 2005 at 05:53 PM in Current Affairs | Permalink


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Great post.

Posted by: Legal Seduction | Jun 16, 2005 8:10:22 PM

But the task set before the jury is "Guilty, or Not", not "Guilt or Innocent". If they are to decide Innocence, then twelve voting for acquittal would be that, and a hung jury would be "Not Guilty" (and would include, by implication, "Not Innocent".)

In our system (supposedly), either you are Guilty, or you have some other status, that is, Not Guilty (something other than guilty, we're not saying what.)

Posted by: htom | Jun 15, 2005 4:49:09 PM

Isn't a hung jury saying that they couldn't decide is he was guilty or not based on the case/evidence presented? The jury is to decide guilt or innocence. In that case, it makes perfect sense to give it to another 12 people and to give the sides a chance to fine tune their arguments. Then, the system - which is supposed to determine the truth/facts - is allowed to work as intended.

Posted by: DorianGre | Jun 15, 2005 1:53:30 PM

It seems to me that a hung jury is an almost perfect demonstration of "reasonable doubt", and should be considered an acquittal.

Posted by: htom | Jun 15, 2005 12:11:51 PM

So, Tom, you don't think there are jurors who vote based on the race of the defendant or the victim?

Posted by: agl | Jun 15, 2005 10:46:03 AM

Dan, I think you are exactly right and I don't understand how people could feel otherwise. If even one of twelve jurors honestly believes that not guilty is the correct verdict, how can we logically maintain that there is not reasonable doubt? In other words, we are saying that when a jury hangs there is a presumption that at least one of the jurors is being dishonest. I just don't but the "eccentric individual" argument. Or put another way, the jury system allows for the occasional eccentric citizen. If a single qualified juror honestly believes there is no guilt, there must be a reasonable doubt.

Posted by: Tom | Jun 14, 2005 6:37:06 PM

Dan, off the top of my head, I'd say that attaching double jeopardy protection to divided juries seriously undermines the main objects of the criminal trial system. You know what I mean: there's a pretty powerful societal interest in reaching accurate results notwithstanding the (possibly foolish or unprincipled) intransigence of one or two jurors in a jury of twelve. Criminals who are guilty should be punished. Angry victims and their families should feel confidence in the trial system to reach accurate results instead of resorting to self help. Etc.

It seems obvious, at least to me, that we are rightly much more confident in a result that 12 people agree on than one that is the result of the outlier decision of 1 or 2 out of 12. Also, if juries are supposed to represent community values, a split verdict is rather more likely to be the product of eccentric or inappropriate norms.

As you rightly observe, the benefits of a unanimity rule have costs that a defendant (under the current state of 28 USC 1291 caselaw) usually has to bear. I think, though, that a lot of the pressure to consolidate all of a defendant's claims (other than claims of a right not to be tried at all) in a single, post-conviction appeal comes from our somewhat generous rules about bail pending trial. It's hard to give the community the sense of closure the justice system aims at when a defendant is walking around for two years while his interlocutory appeal is pending. (And, honestly, I'm not sure many defendants would thank you if you argued they should be able to take an immediate appeal between trials; there's a reason the Constitution guarantees you a speedy trial. Heck, one might argue, although not under current caselaw, that your plan is inconsistent with the speedy trial right. You would have to say that a defendant can take an appeal if he wants, but if not, his time for appeal doesn't start to run. I very much doubt you'd convince anyone that is a just balancing of the competing factors.)

And, again, that's just off the top of my head.

I'd sign this, but my employer doesn't let its employees talk about topics related to their job in a forum where they might be identified as its employees without first seeking authorization.

Posted by: A government lawyer | Jun 14, 2005 11:52:22 AM

"The worst part about requirements for unanimity, at least in the federal system, is that it forecloses meaningful development of the law . . . "

I suppose the same could be said about the government's inability to appeal an outright acquittal. But we recognize that providing a "meaningful development of the law" is only one small interest in a sea of other competing interests.

Posted by: George | Jun 14, 2005 1:30:09 AM

When jury tampering by the defendant is detected, isn't the theory that permits retrial that the defendant was never actually in jeopardy?

Posted by: Aaron | Jun 13, 2005 10:09:59 PM

Nathan you raise a good point but I think if we have evidence of jury tampering, then there is a good argument to revisit the verdict, perhaps under a Due Process type hook. But to base the requirement of unanimity on the mere possibility of the pathology arising seems mistaken, no?

Dave, you're no doubt right that the fortitude to face off would be required but that's partly because there's this crazy norm in place that requires unanimity. If unanimity to acquit were not required, then there would perforce be less pressure to "not" be an outlier I think.

Posted by: Dan Markel | Jun 13, 2005 9:44:37 PM

"On what basis can unanimity for acquittals be defended, especially in a system like this?"

Well, it seems to me that currently we are protected against a single unreasonable or corrupt juror. With non-unanimous acquittals and the double jeopardy principle, a single juror could vote to acquit after being bribed/threatened/just plain stupid, and obviously guilty defendants would escape punishment.

Posted by: Nathan H | Jun 13, 2005 9:29:41 PM

Dan writes: "[i]f I had been a juror who had reached a decision to acquit after careful deliberation, I simply would not relent."

Perhaps so - but it would make you a rare person. It takes a great deal of fortitude to resist 11 other folks' considered conclusions, together with a judge who tells you that: (1) you are the best shot we've got; (2) it is really wasteful to hang a jury; and (3) you ought to reconsider your feelings to see if they can move. To be perfectly honest, unless I was morally certain that a defendant was factually innocent (and not merely not guilty of the (over)charge that the state brought) I think I couldn't stand up to that.

But Dan, I'm with you entirely on the proper consequences of acquital. Great point about the law's development.

Posted by: Dave Hoffman | Jun 13, 2005 8:17:35 PM

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