My sense of things is that most jurors struggle to do the right thing. They work at the decisions we ask them to make. They try to follow the law. There are failures, to be sure. But in general, I trust a jury far more than I trust the weary eye of a judge. Lay jurors bring common sense and a fresh perspective to conflict. Judges have seen it all, and too often, to rely on common sense.
But I worry that by forcing juries to act in a vacuum, we deprive them of the right to make a reasoned moral response to the conflicts we ask them to resolve. This is particularly so in the criminal courts.
Consider the way the game is played. Lawmakers create a penal statute from the safety, security and ignorance of a legislative chamber: most lawmakers, even the lawyers among them, never set foot in a courtroom. When they belch out mandatory minimum sentences, they do so with the shaky hand of drunk in a liquor store.
The penal code defines the crimes and, sometimes, the penalty. These general rules then go to prosecutors who have broad discretion on when and whether to charge someone with a crime. Prosecutors get to do this in Connecticut without oversight. No grand jury checks their work. Prosecutors act on behalf of a client they will never meet – the state. I’ve tried scores of criminal cases, and I have never met the state. I never will.
Lawmakers legislate, prosecutors administer and then a case goes to a jury. But the jury only decides whether a crime has occurred. The consequences of a conviction are hidden from the jury’s view. Judges, except in capital cases, impose punishment.
Four entities participate in the determination of what justice requires in a criminal case: lawmakers, prosecutors, jurors and judges. Not one of these parties accepts responsibility for making a decision about the defendant’s destiny. Accountability is diffused among people who never meet.
Consider the defendant. He must accept responsibility for his actions, the prosecutor tells the jury. A judge then decides what do with a convict. Jurors, the fair cross-section of the community empowered to decide the facts, are merely passive participants in a drama staged by others. On one side of the aisle, a defendant who must face the consequences of his actions, whether known or unknown to him at the time he acted. On other side, a schizophrenic cacophony acts in four-part chaos.
Jurors cannot evaluate the merits of whether to prosecute a case. They are deprived of any knowledge about the consequences of their decision for the defendant. Jurors are coddled, lied to, stroked and cajoled to make the sort of judgments we would find morally blameworthy in any other context: act now, and let others worry about the consequences.
Is it any wonder that we are ambivalent about jurors? Yes, they serve as the conscience of the community. But we don’t trust them. We go out of our way to make sure their actions remain surreal. That’s rich. We don’t trust our conscience.
It would be far better to let jurors serve as judges of both facts and law. I suspect the nation’s drug laws would long ago have changed if jurors knew the decades of imprisonment a young man or woman faces if convicted. I also doubt we’d be sending Romeos to prison for their untimely love of Juliets. Let juries decide what should happen to a man or woman convicted of a crime: unlike a lawmaker, they will actually have seen the defendant. Unlike judges, juries are not battle-wearied by the steady stream of woe that makes a typical court docket. Let juries behold a prosecutor and consider how thin the line separating the juror from the accused.
Will jury nullification yield miscarriages of justice? Absolutely. But let’s drop the faÇade: miscarriages of justice are already common in our courts. I’d rather run the risk of a rogue jury than the tinny sound of the karaoke now being sung by prosecutors, judges, lawmakers and juries who refuse to do what they demand a defendant do: take full responsibility for his or her actions.
Norm Pattis is a criminal defense lawyer and civil rights attorney in Bethany. Most days he blogs at www.pattisblog.com.