Missing the point about jury trials

Submitted by J. Keen Holland (United States), May 8, 2006 at 20:00

One important effect of trial by jury is to take out of the hands of government functionaries - a judge, a panel of judges, or a judge and assessors - the power of deciding whether a defendant has or has not been proven at trial to be guilty, and to place that power in the hands of the people - as represented by the jurors.

This has two major benefits; it takes more than the mere displeasure of the government to get a conviction and it makes the enforcement of laws repugnant to the people very difficult. Arguments about efficiency - either the speed and expense of proceedings or the likelihood of the "right" outcome - are truly beside the point. Nor should we ignore in this discussion the old maxim that "hard cases make bad law." An earlier comment mentioned the O.J. Simpson verdict and asked if anyone believed another jury could have reached the same conclusion. I think the honest answer to that question is that any number of juries presented with that evidence in the same way would have acquitted Simpson. Perhaps it is not true that one or more of the investigators was "gilding the lily," but it sure looked that way.

Two items to consider: the bloody socks do not appear in the first set of photographic images of the bedroom but they are in plain view in the second recorded hours later, and the blood sample taken from the defendant goes on a tour of the city before reaching the lab. I think it likely that Simpson was guilty, but once the appearance of evidence tampering enters the case with regard to some of the physical evidence, it undermines confidence in the rest.

Finally, making an exception for terrorism trials sounds good but the history of such proposals, at least here in the US, is that exceptions for one class of crimes quickly spread to others. When RICO was proposed, it was sold as a tool against the mafia, racketeers, and drug dealers. But it has also been used to prosecute securities cases, intimidate peaceful anti-abortion protestors, and in a host of other ways to suit the needs of prosecutors. There are already signs that the PATRIOT Act is being expanded to serve ordinary criminal prosecutions like the recent stolen baby formula fencing case in Arizona. We are going to have to face the prospect that not all prosecutions will succeed and even that some cases cannot be prosecuted no matter how evil and guilty the offenders. We have learned to live with this in espionage cases. If, as we are often told, the terrorists want to destroy our way of life, let's not help them by hacking away at the Constitution.

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