20 February 2003

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Sua Sponte is a fine blog which I highly recommend. In her most recent exposition she raises the natural fear that many have of jury trials. She's not alone. I know that I've spoken to many a lawyer who has been practicing for years and has the same fear. When you are engaged in highly technical, air's awful thin up there, law the thought of 12 citizens deciding the case can be terrifying. A jury might not understand that page 789 of the latest decision handed down from the Fourth Circuit as applied to code sec. 3456 allows the State to take Spot because technically a dog is chattels. They might just apply their collective common sense and return a verdict stating that the dog will remain with the person who's raised and fed it for the last 5 years.**

"You know who's on juries? The mailman. Some college kid. My mother."

Yep, that's what makes them so great. In the criminal defense world wherein I make my (meager) living I know that appellate judges and often trial judges are biased against my client. I've had a couple older trial judges tell me that my client is guilty shortly before a jury comes back with a favorable verdict; younger judges are more careful with their words but will often compliment you in a way which is revealing. If you need verification of appellate bias look to the mess that every single State and the FedGov court has made of 4th Amendment jurisprudence in order to justify some very sketchy things law enforcement has done.

On the other hand, watch a prosecutor try to sell a jury when he has clearly overcharged. For a good example of this go back thru the archives (Feb) and read about the jury where the kid was charged with injuring a guard. Juries will usually apply their common sense and slap down such silliness. They are also good at cutting out charges where the client might be technically guilty but it was just overzealous to charge him. i.e at night, when a client is in a (mutually) drunken fight with his neighbor and they stumble thru the neighbor's door and the prosecutor charges a felony B&E (entry at night with intent of battery; guilty before any judge in Va.).

In front of a jury you are either a Champion of the Oppressed or Guardian of Our Rights, depending on whether the jurisdiciton is inner city or in a more conservative suburb or rural area (actually you're both at all times only the pitch changes). Those same people who looked down on you, ostracized you, and called you whatever your generation's term for "nerd" was when you were a kid will now look up to you as a keeper of the law. Most of them will do their best to listen to you (and your opponent) and sort out the correct result. As sojourners they often take their role in the system more seriously than everyone else present. They can concentrate all their efforts on this one case because they do not have a ton of other cases to worry about like the prosecutor, defense attorney, and judge.

As you can see, I am a True Believer.

Of course, there are still times I hate jury trials too. When a court-appointed client whom the store video-taped stealing the hammer demands a jury trial it is his right to have one. Then you stand in front of the jury and pray that when they learn of his 8 felonies and 15 misdemeanors (all larcenies) they will not apply their collective common sense and give him the 5 year max (when you know he would have gotten 18 months from the judge). Been there, done that. I argue how minor the event was; the prosecutor argues the record. The jury tends to spilt the difference (about 2 1/2 years); the judge refuses to suspend any of the sentence. And then the client blames me for his conviction. Those are fun days.***

Well, I'd like to keep going but court calls . . .

**All code secs. and pages are figments of my imagination. And yes, I do realize this is an extremely silly and unlikely example (at least I hope).
***This is a conglomeration of past experiences and not representative of any single client.

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