Friday, July 12, 2013

Trial by jury

I have no idea how the trial of George Zimmerman will turn out.  Meaning,  I don't know what the jury will decide.  I haven't been watching it that closely, but I have been somewhat deluged by comments from several people who have strong opinions regarding both Zimmerman and the trial.  It's those comments and the beliefs they seem to reflect that interest me far more than the Zimmerman trial.

At the start, let me be clear.  I don't know or pretend to know what happened the night Zimmerman killed Martin.  Nothing I say here should be construed as indicating my opinion as to whether Zimmerman is guilty or not guilty. The only living person who knows is Zimmerman.  The rest of us can only, at best, form opinions based on the facts.  For those of us not in the courtroom, those facts are, by definition, filtered and received secondhand if we're fortunate, or after passing through even more people and more individual filters if we're less fortunate.  This means that a majority of us, or a sizable minority of us, may form an opinion of Zimmerman's guilt or innocence that differs significantly from that of the jury.

I've read a lot lately about the right to a "trial by a jury of your peers."  This is a phrase found nowhere in the Constitution.  We do have a right to trial by jury.  We do not have a right, as expressed in the Constitution, to a trial by a jury of our peers. Article 3, Section 2 of the Constitution requires all criminal trials be heard by a jury and that the trial be heard in the state where the crime was committed.  The 6th Amendment adds the requirement that the jury be impartial.  The 7th Amendment requires that certain Federal civil trials be heard by a jury if the amount exceeds twenty dollars.

The right to a trial by a jury of one's peers comes from the Magna Carta, which gave nobles the right to be judged by their peers (the "peerage" referring to the nobility) rather than by the king.  A trial by a jury of one's peers, then, requires that there be a peerage.  Since we don't have a nobility, we have no peerage, at least not in the truest sense of the word.  The American ideal is that we are all equals regardless of our differences.  So, then, any voting citizen is my peer.  I say voting citizen because suffrage and jury service have always been closely tied.  The point of this is that a person need not be judged by a jury of people who are as much like him or her as possible for the jury to be impartial.

The right against self-incrimination is found in the 5th Amendment.  It's importance can't be overstated.  We cannot be compelled to incriminate ourselves.  Following from this basic civil liberty, we get the idea that refusing to incriminate oneself is not an admission of guilt and that it should not be viewed as an indicator of guilt.  It's disturbing to hear and read comments from people who clearly view the refusal to speak as evidence of guilt.  Frequently, the comments suggest that "an innocent person would have nothing to fear if he or she spoke."  This might be true, if history didn't provide us with examples of people wrongfully convicted based, in part, on their decision to speak.  Also, the burden of proof is placed squarely upon the shoulders of the prosecution.  It is their job to prove the defendant guilty beyond a reasonable doubt.  It is not the job of the defendant to prove otherwise.

Related to the above is a concept that we sometimes fail to understand.  When a jury finds a person "not guilty" that is not the same as "innocent."  It means that person's guilt has not been proven beyond a reasonable doubt.  The prosecution has not made it's case.  In most cases we are simply unable to have access to nothing but perfectly clear, complete and unequivocal fact.  This means that juries must make a decision as to whether the prosecution has met its burden of proof based on the facts as they are presented.  As a result, "not guilty" is the best they can do.  Now, "not guilty" may mean the jury thinks the defendant is innocent, but remember, at some point a grand jury found sufficient cause to believe the same person was likely guilty.  A good example is the first OJ Simpson trial.  I had one defense attorney, two prosecutors and one LEO of almost twenty years experience all tell me, early on in the trial that (in the words of one of the prosecutors) "if that's the best the state can do, he will walk."  After the verdict I saw an interview with some of the jurors.  Each of them said they were concerned that they had released a murderer but that the state had not met its burden of proof.  Things were not made better by having the lead prosecutor disagree using the "I did too!' defense.  In the case of Zimmerman, if the jury finds him not guilty, that will not mean he is innocent.  Harvard Law professor and defense attorney Alan Dershowitz had this to say about both Zimmerman and the concept of "not guilty."

I think it likely, regardless of the verdict in the Zimmerman case, that there will be a significant number of people who find the verdict an example of a gross miscarriage of justice or even some sort of right wing/left wing plot.  You can, of course, believe whatever you want.  I prefer to believe juries really do the best job they can, often in difficult cases in which the evidence is less than clear.  While I may agree or disagree with the decision handed down by the jury, I think I'll stick with that belief.

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