First jury trial in Argentina wastes no time in setting precedent with “not guilty” verdict

New jury Argentina jurysystems are emerging in different parts of the world, and while some have been reluctant to hand out “not guilty” verdicts (I’m looking at you, Japan), the new jury process in Buenos Aires reached such a decision at the close of that city’s first jury trial.

The details on that case are relayed by FoxNews-Latino, which provides an English-language summary of the case. The research we conducted found that most American jurors experience strong emotions during trials, and the Buenos Aires jury had the same reaction:

The presiding judge’s voice broke with emotion many times on Thursday, and some members of the 12 person jury cried when they saw the relatives of the defendant crying when they heard the verdict.

Colleagues in Argentina who study the jury also felt overcome with emotion, as they relayed in emails to me this past week. The emotion reflected both the gravity of the trial and the historic nature of the jury. Argentina’s constitution has always made possible jury trials, but their arrival has come only in the past two years. That this one was in Buenos Aires made it special.

For a full accounting of the trial, a concise report has been compiled by AAJJ–an organization that promotes jury trials in Argentina.

One last detail: Take a look at the picture of the jurors posing with the judge in the jury box. Notice anything that would not appear in a U.S. courtroom? Can’t find it? Look at the wall behind the jurors.

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Why the Supreme Court reaffirmed the sanctity of jury deliberations

Open meeting norms and “sunshine” laws help ensure that the public can know what’s happening when government officials meet. But what about when lay citizens are the government? When a jury deliberates together, it does so in private. Why the difference?

The best argument I’ve seen is was made by the former federal judge, William Dwyer. His book, In the Hands of the People, traces juries back through history to conclude that the jury serves as much a sacred and symbolic role as a bureaucratic and judicial one. In this view, the gathering of a jury bears some resemblance to the gathering of cardinals to decide on the next pope: Their decision must be final, so it’s best not to know what went on in the room.

For the same reason, Dwyer was no fan of post-trial interviews with jurors. When their verdict is read, their service should be done. Appeals of their criminal verdict (or judgments in a civil case) may overturn the jury’s findings, but not based on sifting through its deliberations.

Earlier this month, the U.S. Supreme Court quietly affirmed this view of the jury. As the New York Times reported, Justice Sonia Sotomayor

said that courts had taken differing approaches to the sanctity of jury deliberations but that Congress had instructed federal courts to bar the use of almost all evidence from jury deliberations, with very narrow exceptions.

There are exceptions to this principle. Rule 606 of the Federal Rules of Evidence specifies those exceptions, which conjure up images of jury deliberations gone horribly wrong. Under this rule,

A juror may testify about whether: (a) extraneous prejudicial information was improperly brought to the jury’s attention; (b) an outside influence was improperly brought to bear on any juror; or (c) a mistake was made in entering the verdict on the verdict form.

Notice that those exceptions aren’t about the dynamics of the jury’s deliberation.Rather, they’re about the introduction of contaminants–evidence or influence from “outside” the trial (or, in the third case, an error on the proverbial scorecard).

The bottom line is that Congress and the Supreme Court agree that juries are meant to do their work in private. Jurors are not elected officials whose public deliberation might signal their competence (or the inverse); instead, they are private citizens called into public duty and who perform that role (generally) quite well in a system that protects them from the glare of cameras. Jurors continue to remain outside the spotlight, even in an age of sensationalism and CourtTV. That is how it should be.

Posted in Conducting trials, Deliberation on juries | 2 Comments

But who will guard the guardians? On county prosecutors, grand juries, and indicting police officers

With the passage of another week, there’s another case of a grand jury failing to indict a police officer who killed another African-American citizen, Eric Gardner. In the New York case, the coroner ruled the death a homicide and the whole incident was caught on video. The New York Times provided a concise summary of the events that led to Mr. Garner’s death.

Now, another wave of protests has ensued, and a new waves of memes has appeared, including Mr. Garner’s words, “It stops today!” (a call for an end to police harassment/abuse).

But until grand juries more readily indict officers, it is hard to envision it stopping. An indictment is no guarantee of a conviction, but no officer wants to risk the reputational stain that a trial brings, so an indictment in itself is important in such cases.

As I noted in the post on Ferguson, I suspect the problem is less the grand jury’s composition/biases and more the case put before it. Grand juries are famous for indicting at will, yet they show reluctance to indict in these particular cases, including the case of Mr. Garner, where they appear to have become fixated on Garner resisting arrest. What makes police indictments different is that in those cases, the same county prosecutor who relies on police testimony to get indictments/convictions must now turn against that police force. This seems an untenable conflict of interest and suggests the need for an alternative to the county prosecutor as the person who brings charges.

I’m hoping this post shakes loose some unheralded examples of such alternatives, as I have yet to hear of one in common use. Obvious alternatives include: having a prosecutor from a different county handle the case; having a federal prosecutor handle these cases; or expanding the role in these cases for civilian police review boards, such as the one established in Chicago in 2007.

Short of such changes, it’s hard to believe that fiddling with jury composition, adding more police video cameras, or other tweaks will make much difference. In the end, if the prosecutor has a conflict of interest (i.e., a stronger incentive to maintain good relations with the police department than an interest in securing an indictment), the pattern will keep repeating in cases such as these.

Posted in Grand juries, Jury structure and reform, Social/political impact of juries, Verdicts juries reach | Leave a comment

On juries, grand juries, and Ferguson, Missouri

As outrage builds about the failure to indict the officer who shot Michael Brown in Ferguson, Missouri, I wanted to take a moment to reflect on the work of the grand jury itself. This blog focuses on criminal and civil juries that decide cases, not on grand juries that decide whether to indict. In the public’s mind, however, both stand as “juries” and so into the fray we go.

First off, one may have heard the expression that a grand jury would indict a ham sandwich. The point is not that grand juries are vegan, but rather they tend to view their job as letting cases proceed to trial and only putting the brakes on those charges that stand on no evidence whatsoever. What makes this case odd is the lack of conviction demonstrated by the prosecutor, as noted by several observers.  A recent piece in The New Yorker put it this way: “aggressive advocacy by prosecutors could have persuaded the grand jurors to vote for some kind of indictment.”

But hold on. There appears to be a counter-tendency in grand juries when it comes to finding “probable cause” in charges against police officers. A thoughtful article on the subject appeared in, ulp, Russia Today. (Yes, it’s a Russian-funded news source, but the bits of it I’m citing are noncontroversial, along the lines of a similar piece in FiveThirtyEight.) First up is the fact that only a third of police misconduct complaints result in convictions (only 12 percent in incarceration).

This, in turn, flows back to a 1989 Supreme Court case:

In Graham v. Connor, Chief Justice William Rehnquist wrote in his opinion: “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

Which brings us back to the work of the grand jury itself. Again, I turn to a non-traditional source, the ideologically-infused Washington Times, for an observation that rings true: the grand jury did its job. The logic of that particular article is a bit twisted (e.g., by deviating from standard practice, the prosecutor sought “justice” rather than an indictment that would simply keep the case in court until an inevitable not-guilty verdict was reached). Even so, it emphasizes the point that given the evidence presented and the way it was presented, the grand jury reached a sensible conclusion in this case.

And as noted at this blog in the case of the Zimmerman shooting in Florida, the jury rarely nullifies the law, but rather holds a mirror up for society to see the implications of the laws it chooses. My expectation is that this case will accelerate the pace of relevant legal reforms–from better camera use at time of arrest to better procedures for indicting police–but that acceleration will be subtle. Decades, not years, will pass before these problems are well addressed.

In the meantime, expect to see another jury on this case should there be a civil trial coming soon. I expect one, and I expect the evidence will be sufficient to find for the family of Michael Brown. But remember that when that case comes, the jury will only know what the jury sees, and what it sees will depend on the judge, the rules, and the attorneys. In that case, however, the Browns will have an attorney of their own, and s/he will probably carry the day.

Posted in Grand juries, Jury structure and reform, Public/media views of juries, Social/political impact of juries, Verdicts juries reach | Leave a comment

What happens if a juror is (later) caught lying during jury selection?

This question has come before the U.S. Supreme Court. Previous rulings have made clear that one can’t (generally) use post-trial claims about what happened during deliberation to overturn verdicts, lest it chill the deliberations themselves. After all, the point of private jury deliberations is to keep them…private.

But what if during deliberation one of the jurors said something that made it plan that she lied during the voir dire period–that pre-trial phase where attorneys question the jurors to detect any undue bias?

That’s the question before the court, and the New York Times has a great article by their regular Supreme Court (and jury) reporter, Adam Liptak. In defense of juror privacy, Liptak points to words from former justice Sandra Day O’Connor:

“A barrage of post-verdict scrutiny of juror conduct,” she wrote, would undermine candid discussions during deliberations. It would make it harder for jurors to take unpopular positions. It could subject former jurors to harassment. It could undermine the finality of verdicts, allowing challenges months or years later.

Yet in this case, Liptak reaches this conclusion:

It is hard to reconcile the two versions of what went on in a South Dakota jury room years ago. But the court system has ways of establishing the truth. Mr. Titus, Ms. Whipple and the other jurors could be called back to court and questioned under oath.

How does he reach that conclusion? You’ll have to read the article to find out.

Posted in Deliberation on juries, Voir dire and jury selection | Leave a comment

The jury system comes to Argentina

The jury system is blossoming in Argentina. An article from May’s Buenos Aires Herald gives one a sense for how juries are being used. In most respects, the system being adopted resembles that being used in the U.S. Consider, for instance, this bit about voir dire (jury selection):

Before each case, 48 potential jurors will be called and they will hold a meeting with the parties, including the judge, the prosecutor and the defence lawyers. They will be asked several questions to try to determine whether they are impartial or if they are directly or indirectly linked to the case. Then only twelve will be selected to sit on the jury. Members of the government and of security forces or those who work for prisons are forbidden from taking part. Lawyers and public notaries are also exempt, as is anyone convicted of an intentional crime or anyone indicted for a criminal offence. The exemptions also apply to religious and political leaders.

Note that the article has one goof; unanimity is required for juries in capital cases. That correction comes from Andres Harfuch, who has championed the jury system in Argentina.

Most of the first-hand accounts thus far are in Spanish. Reading GoogleTranslate versions thereof get the gist across, however. One area of law where juries have arrived concerns taxes. A recent article on special jury trials from the Ministerio Publico Fiscal suggested that jurors will need (again, translated) “A simpler language, greater use of images, another form of questioning, much attention in the instructions.” The bottom line is that the jury constitutes a new and legitimate form of public authority in Argentina. In the mangled translation, that comes out as “a certainty: what is resolved represents the will of the people.” Sounds almost like haiku.



Posted in Juries around the world, Voir dire and jury selection | Leave a comment

New research shows when civil juries have maximum civic impact

Andrew Ferguson has posted a blog note about research that came out of the Jury and Democracy Project. This latest piece, spearheaded by Cornell University scholar Valerie Hans and University of Washington doctoral student Traci Feller adds to our 2010 book (The Jury & Democracy) an important reanalysis showing the circumstances under which civil juries can affect jurors’ future likelihood of voting. Turns out, it hinges on the size, setting, and structure of the jury, with the greatest civic benefit coming from larger juries using a unanimity rule to resolve cases involving more compelling civil charges.

See the full story at the Huffington Post, or for those inclined to see the details, the complete article is available pre-publication at the Social Science Research Network.



Posted in Social/political impact of juries | Leave a comment