Yes, I’ve already got one Thanksgiving post up. But we should not skimp on gratitude, so here’s another:
Today I am thankful that I live in a time and a place where indictments are handed down (or not) by grand juries that have weighed a wide range of evidence, and not by angry mobs.
I’m thankful too for all my readers. Have the very best of holidays.
Not just angry mobs, but NY Times, MSNBC, Barack Obama, and many other race-baiting reporters and politicians.
We must usually bide by the rule of law, even if we don’t like the outcome in some cases. Demonstrations can be a means to change the laws we don’t like.
There have been instances where the rule of law has been mis-applied. Demonstrations may be a means to ensure better application of the existing laws. I am not in a position to say if that is the case in Ferguson.
Didn’t an angry mob hand down its own “indictment” (along with their version of trial, judgment, sentence and execution of that sentence) against the shop owners in Ferguson? That’s the tragedy that unfortunately tempers our appreciation of American jurisprudence.
Just imagine: if there’d been a grand jury judging the iIcident on King Street of March 5, 1770, in which British Army soldiers killed five male civilians and injured six others, we might have been spared the Boston Tea Party and all the subsequent misery.
Jimbino: Given that the incident led to indictments (and ultimately acquittals), I presume that there must indeed have been something like a grand jury involved.
The grand jury decides if there is a case to answer. The UK does not have a grand jury today, the Crown Prosecution Office decides whether to charge. However, the grand juries were gradually made redundant by the development of committal proceedings after 1848, so presumably there was a grand jury involved in the King Street case.
Grand juries traditionally only heard evidence from the prosecution, not the defence, since they were only to decide if there was a case to answer. The accused would not therefore give testimony. Otherwise, if a prosecutor does not really want a conviction, but does not want to be seen to be avoiding a trial or to fail at trial, then he can present the case to the grand jury in such a way that they may decide there is no case to answer. By only offering prosecution evidence this possibility is minimised.
The incident on King Street went to trial because the authorities wanted to be seen to be fair. The evidence was apparently not sufficient to convict for murder, but there was clearly a case to answer. The crowd was intimidating and possibly dangerous, meaning the soldiers had self defence justification to shoot.
If the prosecutor had sympathies with the soldiers and beemn permitted to present a case to the grand jury including defence testimony justifying self defence, the jury might have decided that there was no case to answer. The public would have been outraged. It is likely that there would have been rioting. The revolution may have come 5 years earlier.
It was important for placating public opinion that the trial was seen to be open and fair.
It takes a great deal of naivety about the state of american criminal justice to be at all thankful for what transpired in Ferguson. The idea that the process involved any kind of rational weighing of evidence is far fetched, to say the least.
Regardless of what one thinks of the case at hand, the all-amateur jury is a very bad idea.
On average, amateurs will do a far worse job than trained and experienced professionals.
That is true for adjudging legal matters no less than it is true for tax accountancy, medicine, car repairs and even economics.
“Regardless of what one thinks of the case at hand, the all-amateur jury is a very bad idea.” To paraphrase Churchill, possibly the worst system to dispense justice, except for all the others that have been tried.
There are problems with amateurs, and a different set of problems with professionals. Depending on your current situation either one could be best. The trial of Oscar Pistorius seemed to go pretty well without an amateur jury. The judge has two assesors to advise, and these can apparently overrule the judge in the verdict if they both disagree. South Africa has a particular set of circumstance that makes jury trial difficult.
The problem with professionals is that they may become institutionalised. I am pretty sure that in any particular case in isolation, a professional jury would do better than the amateurs we have now. But over time, the advantages may become a disadvantage. The trained jury is trained – but trained to do what? There is a risk of creeping bias. The amateur jury is just one more check on the power of the state.
Most other countries don’t have amateur juries and they are doing quite well. Germany, for example, uses mixed panels of professional judges and longer-term amateur jurors. That may be the best solution. German lawyers/law students who experience the US legal system tend to come back with very unfavourable opinions. I’ve heard the term “circus show” being used. Objectively, emotion, rhetorics and presentation play a much bigger role in US trials than in German ones and the fact that the aim is to sway inexperienced amateurs rather than convince trained and experienced professionals is probably the biggest reason for that.
#10. The USA system has grown by adding fixes to a flawed system. The result is probably one that no-one would have thought a good idea. Amateur jurors are persuaded by irrelevant evidence, so we must have strict rules on admission of evidence. Books and movies would have us believe that presentation is more important than evidence – the circus to which you refer. Trials are so expensive that only a tiny fraction of cases can be fitted in, resulting in a system of plea bargains that can’t really be anyone’s idea of justice.
Probably for the vast majority of cases it rumbles along moderately satisfactory. Generally speaking the guilty are convicted and the innocent are not. I am pretty sure that higher the profile, the more chances of a failure of justice. That is why the Pistorius trial was interesting. From this very much casual spectator’s point of view, it seemed a very fair result. He may have murdered her, but there really wasn’t enough evidence to be certain beyond reasonable doubt. Instead he was convicted of manslaughter, for he was at least criminally negligent. Compare this with the Zimmerman trial, where he was charged with second degree murder, intentional murder with malice aforethought. There was always going to be a big problem proving this beyond reasonable doubt. Unlike the Pistorius case, conviction of a lesser charge was not then possible. It seems likely that like Pistorius, Zimmerman’s actions were negligent or reckless enough to be guilty of something.
Bit of a digression there. Overall I think there is a pretty strong case for professional juries. I am not sure if it is quite strong enough to do away with the current system, flaws and all.
I think the central point here is a good one. America has a criminal justice system that functions independently of the media. That does not mean, though, that it always functions well.
In the case you mentioned, the Prosecutor Bob McCulloch gave the jury no instruction on what charges they should consider. Usually, McCulloch speaks with the jury, directing them what to look for and discussing possible charges. His job is to actively seek an indictment. He didn’t do that in this case.
In this case, the grand jury was given a mountain of evidence, but very little help in dealing with it. This is the exact oppositeof his job. McCulloch didn’t prosecute, and his actions indicate that he engineered the outcome he wanted.
For example, the grand jury was told that Wilson had knowledge of the incident at the store (involving cigars) even though the Ferguson police chief had testified earlier that he did not. The GJ was told that Wilson identified Brown as a suspect in a robbery, and called for backup. That call is not recorded in any of the released transcripts of police communications.
In fact, much of the “evidence” presented to the GJ would have been challenged, or thrown out completely, in court. For example, Wilson stated that Brown ran about 150 feet, and then suddenly decided to turn around, put his had in his pants waist, and charge Wilson. In a court, the statement would be challenged. If Brown was unarmed, why would he reach for his waist? If he was running, why would he suddenly decide to charge? If Wilson already knew that Brown was unarmed, why would he suddenly suspect a gun?
If the system were fair, these questions would be asked. I am not saying I know the answers to the questions, I am just saying that the questions should have been asked.
And were not.
#12. It appears at least consistent with the hypotheses that he did not want a trial. As I mentioned earlier, historically, the GJ was only presented with prosecution evidence to determine if there was a case. The GJ would not have even known about most of the disputed evidence, which would have been presented in the proper place – the trial. I don’t know how much evidence the prosecutor is obliged to disclose to the GJ currently.
Why not use a “Turing test” type of procedure to weigh the evidence: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1978017
Or why not ask jurors to emit a “range vote” (say, from 0 to 10) instead of a binary vote: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2362908