09 March 2011

Those Pesky Juries - The South-of-the-Border Solution; Singing “Stormy Weather”

Who Needs Juries?

We are reminded ad nauseum by “law and order” aficionados and some insurance/business defense advocates that the jury system is not delivering justice in America.

The Washington Post on Wednesday, March 7, talked about the handy Mexican solution and how well it works.

One Antonio Zuniga was tried and convicted of murder. In a very rare move in the Mexican justice system, that conviction was overturned and Sr. Zuniga was granted a second trial. Fortunately for the anti-crime forces, he was convicted again.

The evidence against Sr. Zuniga was as follows:

One purported eyewitness who identified Sr. Zuniga as the shooter, and who later recanted and said it was a hit by three gang members (not Zuniga) over a drug debt.

Sr. Zuniga’s lawyer presented some evidence in his behalf:

12 alibi witnesses who saw him at work someplace else while the victim was getting shot.

The fact that Zuniga had never met the victim and had no connection to the victim.

The fact that the gunshot residue tests performed on Zuniga’s hands was negative taken soon after the shooting were negative. (When you fire a pistol, there will be some residue of the propellant deposited on your hands and clothing.)

North of the border, we have this inconvenient doctrine of the Presumption of Innocence, the so-called “Golden Thread” which has characterized our justice system from its earliest roots in England. And we do one other important, yet inconvenient, thing: We call in juries of citizens to make the decision about guilt or innocence.

South of the border, the Mexican government does not impose upon citizens by asking them to serve on juries. Guilty/not guilty decisions are made by judges alone. Moreover, judges do so with paper and the arguments of lawyers. They see no need to meet and listen to all the witnesses. Nor do any of the participants need to “play fair.” The prosecutor in Zuniga’s case was quoted that her job was to prosecute, not to judge. So, we conclude, she doesn’t evaluate guilt or innocence.

What is made this second trial hit the Post is that the second trial was filmed and has been made into a movie, Presumed Guilty. A judge in Mexico has banned the screening of this film, ostensibly because one of the participants did not give consent to filming. But remember: Make something unavailable, and you make it desirable: pirated copies of the film are floating briskly all over the country.

Juries don’t always get it right. Honestly, I’ve had juries in cases rule so well in favor of my client I wondered if they were listening to the same case. And I’ve had a few juries rule so badly that it was absolutely sickening. In the same cases, the parties on the other side had opposite views to mine. But in those cases, the decisions were not made by government officials, they were made by citizens. To be sure, a bad judge can influence a jury to make a bad decision, but all in all you get more common sense justice from your fellow citizens.

It is in no way disrespectful to say that any system of justice has flaws. We hear from time to time about a prisoner who is released from an American prison after DNA evidence proves conclusively that he is factually innocent. To have any system of justice at all, we have to recognize that there will be errors. Recognizing that and being the guy who serves prison time knowing that he is innocent come from rather different perspectives. When someone is arrested, he or she is absolutely powerless against the government. He will be restrained with handcuffs. She will be put into a jail. They will eat when they are told to do so, sleep when they are told to do so and will live in cells and “ranges.” They will appear before judges who have a great deal of discretion. It is not at all unusual that a judge may impose a sentence of anything from probation up to 10 years in prison and, as a practical matter, no appellate court will touch that sentence. That is why we have juries. That is why we have the presumption of innocence. That is why the state or government has to prove the case and prove it beyond a reasonable doubt. These protections are not intended to get guilty people off. They are intended to keep innocent people out of prison. To do that, these rights have to be extended to everyone. If you think of examples where something outrageous is been done in a criminal case, you may very well be right. There are instances where criminal procedure can be significantly improved. But so long as we remain Americans, we have to be true to our Constitutional principles: the presumption of innocence, the burden of proof on the government, a high standard of proof, a public trial, the assistance of counsel, and most importantly of all a jury of citizens to oversee the process.

You want courts to strictly construe the Constitution? They have to provide those things, or it ain’t the Constitution.

And so, the next time you decide to vacation in sunny Mexico, know that you can be arrested by the Cheshire Cat, prosecuted by the Mad Hatter, and sent to prison by the Queen of Hearts.

Note: Copyright law is a little relaxed regarding titles. Presumed Guilty is also the title of at least 15 books and one other movie which have been published or released in the last 30 years. Using the same title does not necessarily constitute a copyright infringement.

Stormy Weather

A line of late winter/early spring thunderstorms passed through Mother West Virginia couple of weeks ago. We were sitting, as is our wont, solving the day’s problems and preparing to meet the day’s challenges when we heard on the tinny radio in the café the signal of the Emergency Broadcast System.

I had never heard the Emergency Broadcast System used for mere weather. I remember in the 1960s, there was a lot of attention paid to and an awareness of civil defense. In a time when the United States and the Soviet Union were each building bigger and better ICBMs, the sudden “we interrupt this program…” always brought at least a shadow of dread and a catch in the chest.

The decision to activate the Emergency Broadcast System or, for that matter, to declare a state of emergency is not an easy one to make.

I remember my Emergency Broadcast System codes. I wonder if they still work? I don’t think I’ll experiment. I also remember that in 1975 we accidentally set off the civil defense system in Ocean Springs, Mississippi, due to some atmospheric phenomenon that sent an FM radio signal a whole lot farther than it was intended to go. The folks in Mississippi were not amused.

Pippa passes.


1 comment:

Fatchick said...

What annoys me about juries is that both sides always seem to jockey for the dumbest possible jurors. People with PhDs are regularly excused. People with backgrounds in criminal justice - like me - regularly excluded. Then, I get it on the other side because of being a Quaker.