Next Time.

Friday, August 27th, 2010

Reader Scott Milner writes:

Hi Radley,

Just a quick note to let you know that the drum you’ve been beating for awhile has had some affect on at least one of your readers.

I got called for jury duty this week.  The case involved cocaine (possession, delivery and trafficking).  Testimony took most of yesterday with closing arguments happening first thing this morning.  Shortly after a name was drawn out of a box to determine the alternate juror.  Sadly, that name was mine.  I would have acquitted via nullification on all counts and was absolutely looking forward to sharing the story with you…

The state’s case was interesting for a number of reasons but I won’t bore you with the details unless you ask.  For whatever it’s worth though I want to thank you for helping me develop some courage and convictions regarding the insane war on drugs and  hope that at least one of the other 12 of my peers shares similar sentiments.

Didn’t happen that way. Scott emailed me again this evening:

Well, I just got a call from the judge’s secretary.  The jury found the defendant guilty on the charge of trafficking.  I didn’t ask about the possession or delivery charges… my assumption is that The State was happy to get the trafficking charge and so didn’t request the jury to deliberate on the possession or delivery charges.  Or perhaps it’s simply that the trafficking charge was the big one and it became irrelevant as to whether or not a guilty verdict was returned on the other two charges.

I’m disappointed but not surprised.  Another person goes to prison despite not having hurt, stolen from or in any other way caused material damage to another.  Despite some conflicting and inconsistent testimony from the narcotics officers, and the inability of the state’s forensic examiner to explain some specifics.

As I left I told the bailiff that I’d be happy if the defense counsel contacted me because I want him to know that I was ready to acquit on all charges and why I was prepared to do so.

More people like this, please.

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54 Responses to “Next Time.”

  1. #1 |  MacGregory | 

    I’ve never been called to serve but I have the feeling that jury rooms are lonely places for people like us. Always nice to hear about guys like Scott Milner.

  2. #2 |  Peter | 

    I think the best case to make in a jury room (or to a judge after the fact if questioned) is how formulaic cops’ testimony usually is. The feeling that a witness is speaking from a script is a legitimate reason to distrust the witness, and will hold up to legal scrutiny quite well. It also can usually undermine physical evidence collected by the cop, since the veracity of the physical evidence depends on the truthfulness of the cop.

  3. #3 |  Thane Eichenauer | 

    Each one – teach one.

  4. #4 |  qwints | 

    “will hold up to legal scrutiny quite well.”

    Jury decisions don’t have to hold up to legal scrutiny. The only thing that can overturn a jury acquittal in a criminal case is if there was outside influence on the jury during the trial. That said, a hung jury is not an acquittal.

  5. #5 |  KBCraig | 

    I’ve served on two juries, but never had the opportunity to engage in nullification.

    The first time, my small (under 3,000) suburb convened a trial because someone demanding a jury trial for a speeding ticket. (It was a shock to me — I didn’t even know we had a municipal court, much less a judge. And the judge happened to be the pastor two blocks away from my house.)

    The defendent didn’t show up, the judge declared him guilty in absentia, and we all went home.

    The second time, it was a civil case of medical malpractice, in federal court. So, there was no law to nullify, but I did stop the other 11 jurors from playing “lawsuit lotto”. The plaintiff was legitimately injured through substandard care, and the award was fair.

    One of these days, though…

  6. #6 |  Elemenope | 

    That said, a hung jury is not an acquittal.

    True, but retrial is unusual unless the case is high profile or otherwise marked as a priority.

    I’ve been called for jury duty twice, but never made it onto a jury; irritating to me not just because I’d love the chance to stick it to an unfair drug law but just generally because I think it would be a fascinating experience. I’ve been a defendant before, and I’ve been an instigating party to a lawsuit (though wasn’t part of the organization when it eventually filed the suit), but the jury deliberation has a mystique due to its secrecy that would be neat to be privy to. I’d really like to know exactly what the thought-processes are that lead people to conclusions in situations with controlled and/or incomplete information.

  7. #7 |  delta | 

    I was called for jury duty in Boston, one of the several stock questions from the judge was “do you agree to follow all rules given by me”, I alone (maybe ~60 people) raised my hand that I didn’t agree. Sidebar explained my willingness for jury nullification, and was booted out.

    My girlfriend was called for jury duty in NYC, one of the questions there was “can you detect when someone is lying”, she was alone in replying “no, not necessarily”, was harangued for a while by one of the attorneys over this, and was booted out.

    I’m convinced that just answering the advance questions honestly and thoughtfully makes it impossible to get on a jury.

  8. #8 |  BSK | 

    I was called once, but ended up sitting in a room watching movies for 8 hours before being let go. I was a few numbers away from getting picked up on a major trial, but ended up going home with my $15 check. I don’t know that I’d go so far as to blindly use jury nullification, but I’d consider it if the facts justified it.

    I think the biggest problem with our jury system is that, largely, most of the savvier people in our society are able to work the system to get out of it. I’m sure there are still plenty of bright people who end up in the jury box but, by and large, there are enough loop holes to avoid duty that people with the means or the interest in getting out will and the people who are unaware or unable to take advantage of such loopholes end up populating most of the boxes.

    Ultimately, I think there should be 12 people chosen at random and, assuming they are of sound mind and body, stuck in the box and that is that. No exceptions. I do shudder to think about the potential for virulent racists or crusading drug warriors getting into the box and making a determination of guilt/innocence before the trial even starts, though I’m not sure what the mechanism to eliminate such people is that can’t be abused, nor am I sure it is appropriate to even have a mechanism. I believe in a fair trial, but I’m not sure we are any closer to that with the current system than the one I spoke of. With the ways that lawyers can hand-pick juries and people can BS their way out of serving, the one part of the system that should NOT be corrupt still is.

  9. #9 |  BSK | 

    Well, they SHOULD all not be corrupt, but the one that we can reasonably expect to not be corrupt is the jury, I should say.

  10. #10 |  John | 

    The emailer sounds almost like he had my situation this week. The defendant was driving a minivan(!) with another guy in it, and they pulled over and had a known drug dealer get in, for 30 seconds, the passenger had turned and did something (unclear) with the person who hopped in, the driver didn’t move at all, then the hopper jumped out, went back to the undercover cops, and gave them .16 grams of crack. Neither the passenger nor the dealer who actually handed over the crack to the cops were present, the cops never saw the driver so much as twitch, but it was this driver who was on trial for possession and distribution in a school zone. The first vote was 8 guilty, 4 not guilty, but after invoking Braveheart (believe it or not) I was able to sway it to 10 not guilty, 1 guilty, and one ‘I’ll agree with whoever gets me outta here sooner’. Eventually we managed to get this guy sprung. The defendant looked damn guilty, with prison tats on both arms, neck, and face, but the bottom line was that the state only proved he was driving someone around, and that someone else gave crack to the cops. Even if you grant that drugs are bad, hmmm-kay, that is woefully insufficient to take a man’s freedom.

    Also, the ADA looked like Don from Big Love, and one of the cops was Jim from Taxi, or his twin.

  11. #11 |  Nickp | 

    I served on a jury once: drunk driving case. It was fascinating. The defendant lied about his identity to the police and then, if I remember correctly, visibly belched just before the breathalyzer test – burping apparently increases the alcohol on your breath, so the protocol requires a delay before the test. For reasons I can’t recall, he had been transported to the police station for the test. Anyway, after the delay (more than an hour) caused by his lying, transportation to the station, and burping, he tested barely under the legal limit. After hearing all the testimony, the judge dismissed the charges and released the jury. The defendant was to be tried in front of a different jury for driving without a license and lying about his identity.

  12. #12 |  Marty | 

    and in related news, General Balko has recruited Scott Milner and bestowed him with the rank of Colonel…

    good job!

    (to you, too, John #10).

  13. #13 |  PeeDub | 

    I was dismissed from a jury pool by the prosecuting attorney one (the only) time I’ve been called, simply because I was a software developer. Seriously, that was the only question I answered. Two others who had similar jobs (IT and … I forget) were also dismissed in the same way. I assume it was simply because we were likely to be rational thinkers.

    And that makes me weep.

  14. #14 |  Dave Krueger | 

    In my experience, the court system has an extensive question and answer phase during jury selection specifically designed to weed out anyone opposed to the drug war. They are careful to swear you in before they ask the questions and answering truthfully will get you eliminated. I will never have to fear getting selected for a drug trial ever again. I suspect that’s why the DEA agent sitting next to the prosecutor had such a smug look on his face. It was clear he loved his job so much he could barely contain himself.

  15. #15 |  Mattocracy | 

    Juries are picked to get convictions for the most part. Getting through the questionaire is the hard part. Where I grew up in Georgia, both of parents were called to jury duty at different times. The first question asked both times was, “what do you do for a living.” My dad is an engineer and my mom is a nurse. Neither one got another question and were immediately sent home. The cynical part of me says that they were deemed to smart to be bullshitted by the prosecution.

  16. #16 |  Tim C | 

    Yes, addressing a few things I saw through the comments – 1) when I’ve been called, I too have observed that almost anyone with a job requiring logical thinking/intelligence seems to get weeded out – anyone in engineering, IT, etc. And yes, often that’s the only question that seemed to weed people out. Conversely, it seemed that many people who had an obvious lack of thinking/reasoning skills were favored – oddly enough, by both sides. Perhaps the attorneys are all working the “it’s easier to win this by manipulation than actual reasoning” angle??? 2) If you intend to nullify, you MUST be very careful not to perjure yourself when asked questions intended to weed out potential nullifiers. Obviously this may involve creative answering.

    I’ve been called twice, both for drug cases. The first time, I got to questioning; I tried to be as vague as possible. I did not get picked, and it was in fact the defense team that dismissed me. On my way out, I whispered that that was a mistake, that I would have hung that jury so high it wasn’t even funny. The other time I didn’t get questioned, just observed the whole sad process. If I ever had to go before a jury, I’d sure as hell want thinking, reasoning people instead of what appears to be the lowest damn common denominator….

  17. #17 |  Jerri Lynn Ward | 

    I served on a jury involving allegations that a man was driving under the influence of marijuana. I was foreman. We acquitted him.

    Of course, it helped that the cops lied (as proven on the dashboard camera). The man admitted to smoking dope, but the elements required of proving he was under the influence were not established. (the prosecution was dumb to let a lawyer on the jury)

  18. #18 |  Beniamino | 

    I’ve been summoned for jury duty twice, and have attended a couple trials for entertainment over the course of the past ten years. I’ve noticed the following based on my admittedly statistically meaningless experience: in the course of every voir dire, when the prospective jurors are asked about potential bias, there are invariably a couple people who admit to bias against the police or the government, and who are summarily dismissed. I have never seen any prospective juror volunteer that they are biased in favor of the government, the police, or “authority figures” generally, and I’ve never seen a judge or a lawyer (not even a defense lawyer, that I recall) specifically question prospective jurors about that kind of bias.

    It’s nice that people who are more “libertarian” (broadly defined to encompass anyone who has a healthy mistrust of government) try harder to be honest about potential bias, but again – based on my limited experience – I think this honesty is, how shall we say, a little bit counter-productive. I just want to throw this out there for any libertarians (quasi-, pseudo-, or otherwise) who find themselves in the jury pool: don’t give the government a reason to dismiss you. I don’t think people need to volunteer the fact that they’re inclined to question police testimony, or to question the morality of a judge’s legal instructions, when they know very well that the majority of the jury pool enters into the process assuming, but refusing to admit that they assume, that the defendant is guilty and that cops are generally more truthful than non-cops. And while I see where Scott Milner is coming from, and I commend his scepticism about the criminal justice process, I don’t think he needs to put all his cards on the table when he gets summoned for jury duty. Is this just a coincidence that he was designated alternate juror? Sure, OK. Did he need to tell some bailiff after the fact that he had been inclined to nullify? Nope. I think the likelihood that he will thereby end up in some government database of prospective nullifiers is probably low, but not zero.

    All I’m saying is this: the government’s policy (based on what I’ve seen of the behavior of judges & prosecutors) is to exclude people who actually take the presumption of innocence seriously. Please don’t make it any easier for them.

  19. #19 |  joev | 

    Here’s an anecdotal “jury duty ain’t what it’s cracked up to be”.

    Served on a jury in Atlanta waaaay back in 91. Some fat cat who had wheeled and dealed managed to get in over head. Once his wife got wind of what all he had done to “make” the money, she wanted no part of it and divorced his butt. Later, I THINK he had filed bankruptcy, some of the creditors were going after her for some big dollars that he owed while they were married, but of course, they couldn’t collect on with him, and, as the wife got to keep the house in the divorce, and their reasoning the house was bought from those funds owed, she should have to pony up cash. I think. This was practically 20 years ago, I was roughly 21 at the time, and a LOT of smoke, whiskey, and creeping senility make this at best a dim recollection.

    Anyway, we denied the creditors her little bit of life, liberty and pursuit, but I don’t think we did it right. About six of us really gave a damn about doing the right thing, one guy slept in the jury room and only woke up to vote whichever way the wind blew, and the rest were ready to go home right from the start and would vote whatever way it took to leave.

    /shakes head

    That said, I’d still serve on another jury.

  20. #20 |  Joe | 

    Prosecutors, from Fitzgerald to Patterico, hate this type of talk. It is sedition to them!

    Long Live The King Power of the State!

  21. #21 |  Ben | 

    I have been called for jury duty only once, and I actually did end up on a jury. I was shocked that they allowed a law student to sit on a jury; I figured it was SOP to eliminate anyone with legal training immediately. It was an indecent exposure case, and I was all amped up to hang the freaking hell out of the jury. Then when both sides rested, I was selected as the alternate. Random selection, my ass.

  22. #22 |  Discord | 

    I was on a Grand Jury in Brooklyn last November. I didn’t vote to indict a single drug charge. Unfortunately with Grand Jury it’s not all or nothing, and all of the drug charges were indicted. One poor guy was even indicted for possession of cocaine for having the bad luck of visiting his friend for the weekend and going over to their neighbors house as a no-knock warrant was being served. He was cuffed on the floor in a room with cocaine in it. Everyone else voted to indict. Ridiculous.

    All in all I found the grand jury experience really frustrating. It seemed like the other jurors didn’t want to consider any possibility other than “this should go to trial.” Unfortunately I was told that I will ALWAYS be on the Grand Jury now, never trial, so long as I live in Brooklyn.

  23. #23 |  Jim | 

    I shudder to think I would ever have to go to trial for anything. I am not rich, so I am guilty. That is what it comes down to.

    Also, if you can’t get bailed out because you don’t have the CASH, the chances of you doing hard time are greatly enhanced because of the way the system is set up. I read a story about a guy how ended up doing 4 years for stealing a blanket from WalMart because he did not have the money for bail and so the prosecutor drilled him.

    America, land of the free, unless your poor.


  24. #24 |  Matt I. | 

    A lawyer once told me that the worst thing you could ever wish for is a jury trial, and I think the stories above bear that out.

    I say fuck it, DON’T tell them that you know a thing about nullification, tell them that you will enforce the law to a T. If you decide to nullify, it was because you had an overwhelming sense that you couldn’t convict the guy.

    Personally, I can’t say that I would never vote guilty in a drug case, but let’s just say that the standards of guilt would have to be VERY high.

  25. #25 |  Yizmo Gizmo | 

    “Yes, addressing a few things I saw through the comments – 1) when I’ve been called, I too have observed that almost anyone with a job requiring logical thinking/intelligence seems to get weeded out – anyone in engineering, IT, etc. ”

    So only dimwits get selected for juries? That sounds like a pretty
    reasonable manner to execute justice. No wonder the US is breaking all known records vis-a-vis incarceration rates.

  26. #26 |  qwints | 

    I’ve personally seen veniremen dismissed for bias against the defendant. The main reason is that they believe that being arrested increases your likelihood of being guilty or that refusing to testify is an indicator of guilt. I’ve seen defense lawyers try to get veniremen dismissed for thinking cops never lie, but I’ve never seen it successfully done.

  27. #27 |  Marty | 


    your fears are spot-on. my mom was a gambler and ran into ‘issues’. I didn’t cash in my pension to hire a good attorney. the public defenders didn’t file anything on time, did more damage than good, etc. she ended up getting several years for stealing $800 and 3rd degree assault. despite no history of violence or crime. THEN things got bad. she witnessed a rape (guard vs inmate). and the harassment started (when I picked up her belongings, there were over 150 conduct violation reports for 2 years)- I finally figured out why she was always in solitary, etc.).
    she couldn’t get treatment for a severe headache, despite checking in to a clinic EIGHT times. (she was actually written up for creating a disturbance and unsanitary conditions, after seizing and urinating on herself). the aneurysm ruptured and she never recovered. very treatable. google ‘CMS prison death’ to learn about SEVERAL of these cases.
    for me to send someone to prison, it’d have to be a serious crime with a real victim.

  28. #28 |  J.S. | 

    Beniamino, it seems pretty obvious to me (conservative libertarian I guess) that you can’t be honest regarding your government skepticism etc. if you want to serve. Some of the questions they ask are pretty basic anyway, seems hard to lie to avoid their disqualifiers.

    IIRC, when I was on a grand jury during the selection process the judge called out people randomly via alphabet or random number and the only questions asked of those called out of the main pool were had anyone been convicted of a crime (maybe only felony) or were currently “in the system” on some charge. A few were and dismissed for that, one gal made it as far as the jury room before she/court figured out she was not eligible. I think another question was if anyone was directly related or working for the police/courts were dismissed but thats a hazy memory.

    The two things I learned from two weeks of grand jury duty were to never consent to a vehicle search (DAs even admitted that, multiple times) and that you can indeed get a grand jury to indict a ham sandwich. At least in one case of domestic violence the whole jury agreed one gal was uh, just a bit unbelieveable in her testimony and it was surprising.

    In another case, we dimissed an “inciting a riot” charge on a guy who got into a fist fight downtown. They had a bike (non motorized) cop testify that he and his partner were worried or frightened for their security because they were surrounded by a crowd of 50+ people (watching the fight I presume). Even with his bike cop uniform on as he testified it seemed like a silly notion, IIRC he had his helmet with him and standard utility belt. Two days later the ADA whos case it actually was (they all didnt present their own cases every time) mentioned she’d heard we denied that one charge. Her response was she’d take that under consideration and that “we do listen to you guys”. Looking at her though, the sarcasm and venom was obvious on her face and voice. She was pissed we’d taken away one of her bargaining points for a plea deal. Nevermind the crappy evidence provided or the sillyness of the charge…

    I’ve been called back once after that time but not picked (no one was called in that day).

  29. #29 |  SusanK | 

    As a defense attorney, I have been very successful letting the local prosecutors drill the jury on their ability to be impartial. They have an extremely long script they go through for every trial. They have always touched on anything I might have been interested in questioning them on. However, I then get to use my time to chat up the jurors a little, personalize the defendant, tell the jurors I will have to strike a set number of them, and ask who doesn’t want to be there. I always have those ones excused. It is nearly impossible to strike “for cause” here, so trying to figure out bias is worthless and offends the jurors. This has worked extremely well for my clients.

    As for alternates in my jurisdiction, the court and lawyers know when selecting the jury who the alternates will be. However, the judges won’t tell the juror they are the alternate because they are afraid that if the person knows that fact, they may not pay attention during the trial. I don’t like it that way, but I can see the point. It does seem cruel, though.

  30. #30 |  ClubMedSux | 

    Here’s my take on juries as a civil defense attorney (though, for the record, I’ve only participated in jury selection once in my four years of practice… civil matters rarely go to trial).

    If you have a case that’s legally and factually strong but not terribly sympathetic, you want educated, intelligent jurors. If you have a case that sucks but is sympathetic, you want idiots.

    Consider two facts… First, the majority of prospective jurors will not be educated and intelligent (especially in the urban jurisdictions where plaintiffs’ attorneys like to file their cases). Second, odds are one of the two parties will have a case that they know sucks. As such, one of the parties is going to want to strike every educated juror they come across.

    I’ve only been called to jury duty once, and it was a personal injury case where it literally came down to whether the light was red or green. I didn’t see any reason why I would be a bad juror (I do pharmaceutical work so there’s no real conflict of interest) but when they struck five jurors two of them were me and the other lawyer on the panel. Can’t say I was surprised.

    I have heard that more lawyers are finding their way onto juries nowadays. My suspicion is that those are cases where both sides are confident enough in their case that they think an intelligent person would see through the other side’s B.S. I’m sure that’s what happened with Ben @21. But generally speaking juries will be selected such that the stronger case is handicapped. What a system.

  31. #31 |  Robert | 

    One jury duty. Was asked what I did for work, and when I replied that I designed security systems, they asked if I worked with the police. I said no, and then I was on the jury. Got picked to be foreman. Case was a guy had rented a TV from one of those rent to own places, and then stopped paying and didn’t return the TV after a couple of months. Now, regardless of what I think of their business model, stealing is still stealing so we convicted him.

  32. #32 |  Andrew S. | 

    I’ve been called for jury duty twice, on a jury once. No chance to nullify there. Was an armed robbery case with extremely shaky evidence, and a not guilty verdict on the merits.

    My wife was called for jury duty a couple of years ago. I tried to educate her on her right to nullify beforehand. When she was called up for voir dire, she had the perfect case to try — it was a marijuana possession case. Unfortunately, the prosecutor asked her, directly, whether she thought marijuana should be legalized. She chose to answer honestly, and was quickly dismissed.

  33. #33 |  jppatter | 

    Last time I had jury duty I was questioned, but not selected, for a murder trial. (Child abuse, sounded like it was going to be really awful.) I have jury duty again in a couple weeks; I would love to actually be selected for something this time, but I don’t see that as being likely.

  34. #34 |  Aresen | 

    Fundamentally, there are never going to be enough people on juries willing to challenge the police and prosecutors. Even if the proportion of those inclined to do so were to become a majority of the population, they would still be excluded from jury duty. (And, let’s face it, most people think the police are ‘paragons in blue’, which is why “tough on crime” types keep getting elected.)

    The only way out of the nightmare is to demonstrate to the majority of voters that the WOD is bogus and needs to be ended.

  35. #35 |  Mattocracy | 

    I really wish that jurors were picked at random, so long as they weren’t felons, awaiting trial themselves, other standard reasons to reject a juror.

    The idea of getting an impartial jury by removing the educated and the well informed is ridiculous. The whole process is designed to get a very ‘partial’ jury. You’d probably get better juries in a crap shoot than with the screening process. You might get a draconian, law and order type, but they’d be offset by a nullification type person.

  36. #36 |  Aresen | 

    @ Mattocracy August 27th, 2010 at 11:25 am

    You’d probably get better juries in a crap shoot

    I don’t think I’d want any of the people in the last craps game I played to be on a jury. ;)

  37. #37 |  GregS | 

    I love jury nullification, because it’s an idea with so much leverage. If just one in twelve of us is intent on nullifying, very few cases trials for victimless crimes will get convictions. They’ll at least end up in a hung jury, which often means the defendant won’t get retried. I read Jury Nullification not long ago, and started watching the videos on the FIJA website, and they’re all very good. There’s a sort of how-to on getting through the voir dire process, and what NOT to say. (You can’t be forced to explain your reasoning to anyone else if you choose not to, but a judge can actually remove a sitting juror if that juror expresses an intention to nullify during deliberations.) I find that most people are very receptive to this idea. It’s incredibly empowering.

    I just find it odd and sort of shameful that while William Penn’s jurors stood up to the the punishment of the king and held their ground, we all capitulate and show near total deference to the state. We really are a cravenly submissive people. Props to Scott Milner for having the courage of his convictions.
    More of this please, Radley. I’ll share any stories of nullification I happen across in my own life. Statistically speaking, we’ll all probably sit for jury duty at some point, so it’s worth investing a little time into researching this topic.

  38. #38 |  Dante | 

    I’ve been called to jury duty twice.

    First time, I wore a suit and tie (because that is what I wear to work, not because I’m trying to impress). They asked me what I did for a living, and when they found out, I was booted.

    The second time I didn’t shave. I wore a tee shirt and jeans. When they asked me what I did I truthfully said I was unemployed (I was, at the time).

    I was on that jury for a week. I guess it’s true, they don’t want open-minded people on the jury, they want agents for the prosecution.

  39. #39 |  Chris | 

    More anecdote: I’m an electrical engineer, and served on a jury in San Jose in about 1997. I don’t doubt that lawyers, especially prosecutors, prefer “feelers” to “thinkers”, but in that time and place, it would have been hard to find 12 non-engineers to serve.

    The evidence sucked (shaken baby case with no evidence but the testimony of a doctor that the injury must have occurred the previous evening, around the time when the baby was alone with the uncle). But the “feelers” wanted to convict the creepy-looking uncle who never testified. I’m ashamed to admit that they managed to convince me after a week of deliberations. (I put too much faith in the “expert testimony.”) But there was one old guy who wouldn’t go along, so the jury was hung.

    I heard later from a friend in the public defender’s office that they retried him and got a conviction. When there’s a sympathetic victim and an unsympathetic defendant, the evidence doesn’t have to be very strong.

  40. #40 |  qwints | 

    #31 | Robert | August 27th, 2010 at 10:43 am
    One jury duty. Was asked what I did for work, and when I replied that I designed security systems, they asked if I worked with the police. I said no, and then I was on the jury. Got picked to be foreman. Case was a guy had rented a TV from one of those rent to own places, and then stopped paying and didn’t return the TV after a couple of months. Now, regardless of what I think of their business model, stealing is still stealing so we convicted him.

    Those cases are actually pretty complex. Legally, the prosecution has to prove that the renter took the thing with the intent to deprive the store of the property permanently. Otherwise, it’s just a breach of contract. Think about it this way – failing to pay your car loan or mortgage is not a crime, it just means you lose the car or house. It’s only stealing if the person never intended to make the payments since the US does not have a debtor’s prison.

    The the evidence showed the person knew he couldn’t or wouldn’t pay for it, that’s one thing. (It’s a pretty easy case if they never pay or provide false information to the company.) If they just fall behind on their payments, it’s not a crime to fail to return the goods. All too often, these companies use the criminal justice center as a debt collection agency.

  41. #41 |  SJE | 

    I don’t think it is a good idea to put the jurors name out there: next time a jury is convened, the prosecutor will no note to pick Scott Milner, and so he will be unable to nullify.

  42. #42 |  Yizmo Gizmo | 

    “The idea of getting an impartial jury by removing the educated and the well informed is ridiculous.”

    Yeah, how did We the People ever let it come to this?

  43. #43 |  Saint Zero | 

    I can add my experience!

    Federal Trial about a Fire. Spent three days listening to prosecution, two hours listening to defense, and 90 minutes waiting for the two sides to come to a deal and waste our time. For the record, our bunch was going to dismiss the prosecuting side. Physics wins!

  44. #44 |  Robert | 

    @ #40 Qwints: “Those cases are actually pretty complex. Legally, the prosecution has to prove that the renter took the thing with the intent to deprive the store of the property permanently.”

    He had stated that he had no intention of returning the TV.

  45. #45 |  Lori Wilson | 

    I have been called >5 times for jury duty (lucky me). I was the last person removed from the jury for a murder trial that lasted 8 months! The defense kicked me off when I told them (truthfully) that I thought psychology had no place in a trial (his defense was I didn’t do it, but if I did pornography made me!). The judge had to tell them to stop badgering me; so off I went to the glares and scowls of the next person called – she knew she’d be picked because everyone was out of challenges.
    I did sit on two drunk driving juries – both defendants lied stupidly throughout their testimony and were convicted. One civil trial for personal injury for a fall that was the defendant’s own fault: trying to take his wheelchair bound father down a set of stairs when there were other options.

  46. #46 |  pam | 

    In a post conviction relief hearing for an 8th grade boy given lwop in MS, one of the issues among many, is that he had been denied an impartial jury. On the last day of his 2 day trial his grandmother noticed that two jurors were friends of the victim’s son (which is also her son). This son had stated publicly that the 15 year old defendant (his nephew) would never breathe another breath of free air. The grandmother (who was also the victim’s wife of 50 years and the boy’s grandmother) had been kept out of the courtroom due to her possibly testifying for the defendant (turned out no witnesses were called on his behalf, including corroborating ones). The grandmother promptly informed the lawyers that she recognized the two jury members. That’s as far as it went, nowhere.

    Now four years later, the judge denhying post conviction relief, said that no proof was offered at the evidentiary hearing to “demonstrate that these jurors held any ill feelings toward the defandant (petitioner) or that the defandant (petitioner) was deprived of a fair jury.” He said in his opinion the jury was qualified and fair. I guess the victim’s wife testifying that she knew they were friends of her bitter son who was publicly threatening toward the defendant was not good enough even with the standard being a preponderance of the evidence that he had been denied a fair trial-51%. And this is one of the smallest of the issues we found in this young boy’s trial. The jury was also given redacted information “by accident” by the prosecutor. The judge interviewed the jurors and all said they could set it aside and the boy, without any parental guidance due to his “adult” status, was advised against a mistrial by his attorneys.

    And it went on and on like that. The MS Supreme Court saw substantial violations when they sent it back to the trial court, but the trial judge denied there were any violations or that any relief was due and said without explanation, the grandmother was not credible. One could drive a truck through this conviction, yet it still stands.

    Marty, I know what you are saying. The cruelty in the prisons is astounding and I could feel your pain. I feel it every day.

  47. #47 |  scott | 

    I just met with the defense counsel and the mother of the defendant. After I got the call from the judge’s secretary I immediately called the counsel’s office to let him know I’d be happy to chat with him. He invited me to meet with him this morning.

    A few points that might be of interest:

    -This was an all-white jury deciding a case in which a young black man was the accused. Defense counsel is also black. I’d love to think that race wasn’t a factor but in lilly-white Boise it’s simply impossible to suspect otherwise.

    -There were approx. 90 potential jurors (perhaps slightly fewer) called into voire dire. Just one of those potential jurors was a black man and he was among the first discretionary (is that the right term?) dismissals the prosecution requested. Tip: a good way to get dismissed for cause is to tell the prosecutor that he’d prosecuted your son in the past ;)

    -Viore dire was handled differently than I’d expected. The questions were largely presented to all of us at once. Occasionally one of the counsels would direct questions at an individual but overall it was more of an informal discussion rather than a one-on-one question session. The issue of nullification was never addressed specifically but it was hinted at. My advice during voire dire… don’t offer anything that you’re not specifically asked to address. IMHO, this neatly sidesteps the issue of perjury on your part, though I admit to worrying whether the judge might threaten a contempt charge had I remained on the jury and ignored his instructions (more on that in a bit).

    -The jury instructions for deliberation were “tiered”. That is, the possession, delivery and tracking charges were to be decided in that order. So if they’d found him not guilty of the possession charge the others would have been dropped.

    -The trafficking charge carries a mandatory minimum of three years, but the law allows for a life sentence. This is insane. We were not informed of the potential sentence and, in fact, were specifically instructed not to consider the possible sentence/punishment of any of the charges. I’m sure a for-realsies lawyer will explain why this is a good thing, but I have to wonder whether, if any of us had known this kid was looking at life for a nonviolent crime, it would have impacted the verdict.

    -The trafficking charge required that at least 28 grams (one ounce) of cocaine was involved. The state forensics lab measured the amount at 27.99 grams. Prosecution’s argument in this instance rested almost entirely on the assumption that the field test and the fact that some residual cocaine remains stuck to the bag when it’s emptied resulted in the loss of at least 1/100th gram. Plausible certainly. But I resented what I believed to be prosecutorial overreach and knew immediately when this fact was presented during opening arguments that I was going to vote not-guilty.

    -The judge’s (who is actually IMHO a very fair and reasonable man) instructions hacked me off. Simply put, they required that if the state proved its case beyond reasonable doubt we were REQUIRED to find the defendant guilty. This is where nullification meets the road as far as I’m concerned. As a juror *you* are the final check and balance against the state. Any “legal” requirement that you abandon that role is null and void.

    -Defense and the defendant’s mother both admitted that they were heartbroken when my name was selected as the alternate. I don’t know what tipped them off that I was sympathetic to their cause, and the defense counsel actually said he was aiming for a nullification (though never explicitly brought up in court).

    I’m sharing all of this not because I’m particularly brave or special. I simply want y’all to know that you can get through voire dire with your conscience intact and that it takes only one person to throw a wrench into the state’s works. It’s also interesting (to me anyway) to see an intellectual exercise turn into a real-world “thing” and dissect how best to go about exercising your rights in that regard.

  48. #48 |  Brian | 

    I’ve only had one week of being in the jury pool (in Cleveland, you’re called for at least a week; if you get rejected from one jury, you go back into the pool to try again on a different jury until your week is up. Even if you do hear a case, if it finishes before the week’s up, you go back into the pool!)

    Jury pool #1: The case is a gang-related two defendant murder trial. Defense counsel is high profile. During voir dire, I have the following exchange with the prosecutor:

    Prosecutor: Where do you work?
    Me: I’m a student at NYU Law
    Prosecutor: NYU?
    Me: New York University School of Law.
    Prosecutor: Is that in New York City?

    The defense lawyers cracked up at that line.

    Result: Peremptory challenged off the jury by the prosecution.

    Case 2: We’re called to the jury room at the end of the day Tuesday, they go through the preliminaries, but don’t get to voir dire. Wednesday morning, we get there to find out the defendant took a plea. Back to the pool.

    Case 3: Another criminal case, not a victimless crime, but not a murder. Prosecutor asks me if I understand what “innocent until proven guilty” means. I tell her yes. I’m the only peremptory challenge, again from the prosecutor.

    Case 4: A civil case this time, which in Ohio state courts is only an 8 person jury. It’s a breach of contract case, plaintiff has incompetent local counsel, defense has big time counsel (though probably senior associates, not partners, based on age and seriousness of the case). Thanks to the criminal jury selection process, the jury was disproportionately high in legal personnel–me, a full lawyer, and a paralegal. The entertaining question here was the defense’s, “How many of you have signed a contract?”, and the idiot 6th year high school senior answering, “Well, I signed this thing that said I needed to get good grades to play football, does that count?”

    But in the civil jury, with the defense lawyers being the competent ones, the idiot was the one peremptory challenged off the jury. So I was sworn in. The plaintiff’s counsel went on to demonstrate truly incompetent lawyering, using only two witnesses:

    1. The “CFO” of plaintiff’s company, obviously the company’s jailed CEO’s girlfriend, who had no idea what was going on.
    2. An hour and a half of deposition testimony read back in a monotone that no one could follow.

    The plaintiff rested, we went home, and when we got back the following day, the judge had granted a directed verdict to the defendants because the plaintiff had never shown that it could have performed the contract. It was a waste of everyone’s time.

  49. #49 |  RWW | 

    Considering that the vast majority of defendants are truly innocent (though they may have broken the law in question) I would perjure the hell out of myself to get on a jury, and use whatever sophistry necessary to get my fellow jurors to vote to acquit along with me.

  50. #50 |  RWW | 

    (It’s just the right thing to do.)

  51. #51 |  JOR | 

    Had to report for voir dire once. It was a drunk driving case. I do remember having to watch some silly little “educational” video (it was the sort of thing that you might see played in a third grade classroom) about the wonders of jury duty and the like. The judge seemed like a likable enough fellow but for the whole being a judge thing. Questioning never got around to me, as the trial was called off because a key witness (who happened to be the arresting officer) hadn’t been heard from and couldn’t be found.

  52. #52 |  Leon Wolfeson | 

    Your jury selection system baffles me.

    I’ve never been called, but in the UK they’ve systematically removed basically ALL the excuses not to be called up, and you’re asked one thing before you’re sworn in – can you give both sides a *fair hearing*.

    There’s also very a high bar to challenging jury selection – family/friend/employee of the accuser or defendant, where someone has expressed a public opinion on the case – pretty rare, all in all.

    Also, we don’t have “alternates”, several jurors can be removed (up to 3 of the 12 in Crown/High Court and 2 of the 7 in County court), if more need to be removed it’s a mistrial.

  53. #53 |  mjp | 

    I attempted to hang a jury so that an elderly man wouldn’t go to prison for possession of a controlled substance (free base cocaine) due to lack of evidence…and won! Even the foreman wasn’t as educated about the subject as I was. The defendant was an African American and didn’t stand a chance; even when half of the jurors–and foreman–were also.

  54. #54 |  JC | 

    I actually pity the myopic sentiment expressed and espoused by so many in this thread, as it truly is borne out of an insulated view of the justice system and clearly demonstrates a flawed and radical view of the legal system (we don’t have a justice system). I have a serious problem with anybody who feels that distributors of controlled substances should be kicked loose out of hand, while recognizing that the decent people who do feel this way typically only do so based on mere superficial knowledge of why they do so. This is a mendacious approach, at best.

    There exists no justifiable excuse for individuals to distribute and traffic cocaine, crack cocaine, heroin, crystal meth, etc. The arguments are endless and I’m sure most of you are familiar with the common ones. I’ll give you two from a more practical perspective though- have any of you ever asked a crack cocaine dealer what he would do if that substance was legal? The answer you invariably get in an honest exchange would likely surprise you, but it shouldn’t. Not when you consider that the people who distribute narcotics, by the very nature to spurn societies rules, only use the drug trade as a medium for easy ill-gotten gains. The honest answer, almost to a man (and one I have heard no less than 100 times), is “I’d probably be stealing more cars, breaking into more cars and houses, maybehave to do a few more licks (robberies) or sweeps ( home invasions)… Gotta replace all my money somehow”. The second point correlates to the first, drug crimes and their respective sentences are also mediums used by police and prosecutors to put dangerous and career criminals away. Well over 90 percent of all individuals who are charged with a distribution related offense (not mere possession) have non-narcotics convictions as well, in almost 70 percent of these cases there is at least one serious violent felony conviction (as defined by 18 USC 924 e). Of course, the norm is usually far more than just one of these present which is why that statute exists in the first place.

    I would also caution you against beating the nullification drum too much. The problem with these marginal ideas are again unintended consequences if they ever truly become larger movements. Each of you, individually, have a right to make up your own minds and come to your own ideals, but to do so without completing investing yourself into the forum of those ideals- both academically and practically- makes it a dishonest ideal and one not worth one iota more than the effort you put forth to embrace it. This is how negative unintended consequences evolve in any arena to begin with. Problems with jury nullification is a direct reason why unanimous juries fell by the wayside in many state systems years ago, and a repeat of that movement would likely cause even more state systems and the federal government to change their positions, thereby now affording less protection to defendants and making it far easier to convict on votes as low as 9-3 (as it is in Louisiana… 10-2 in states like Oregon, Alabama, 11-1 in others). People don’t have the right to an unanimous verdict- never have on the fundamental level- and a nullification movement with any legs would have this direct cause, not to mention a host of other indirect ones (even more taxpayer money wasted on jury screenings and the void dire process for starters).