Tuesday, November 24, 2009

Jury Verdicts And Blindman's Bluff

One day, in some courtroom in the United States, a juror will stand up in the middle of a criminal case and shout: "Liar, liar, robe on fire!" I hope it happens in Connecticut. Here is why.

When we refuse to let juries know the truth about the consequences of a conviction in a criminal case we hamper a jury's ability to check the abuse of power. Juries that are not fully informed can't do their job. Withholding truth from juries is dishonest. We do it every day in Connecticut and call it justice.

We refer to juries as the conscience of the community, but we don't treat jurors with such regard. We treat them as moral idiots unsuited to reckon the consequences of their acts.

We want juries to decide facts and facts alone, leaving to the judge the responsibility to impose such conditions as the law requires. This rigid separation of fact and law results in moral paralysis, however. In what other context do we ask folks to make a decision regardless of the outcome? Recklessness and justice are not twin sisters.

Moral philosophers distinguish so-called deontological theories of ethics from consequentialist theories. Deontological ethics are severe: we do right as an end itself. In this spare universe virtue is not even permitted to be its own reward.

Consequentialism come in many forms. The hard core are act utilitarians. On this view, each act ought to be regarded in terms of its impact. Thus, breaking the law makes sense if it promotes some good. Rule utilitarians take a broader view, claiming that general conduct requires adherence to laws that will yield bad outcomes in particular cases. The law may be but a useful tool, but its use is best serve by general obedience. But even here, a good law can serve bad ends. Justice requires bending a rule when the facts require it.

What's all this high-fallutin' stuff to do with criminal trials?

The law should promote social utility and is all about consequences.

Juries are supposed to stand between the state and an ordinary citizen accused of a crime. We expect some reasoned response from the community. But we refuse to tell jurors the consequence of their decision. We do not even permit jurors to make a recommendation about sentencing. Thus, we play Alice and Wonderland at criminal trial. "Don't think about what happens if you find a verdict of guilty," we say. Leap but never look. I wonder how many jurors are shocked when they read about a sentence imposed in a case on which they sat in judgment.

Hiding the truth from jurors undermines the very reason we have juries. The state and the state alone selects the charges. A judge cannot order than an overcharged case be recast in terms that better serve justice. And, let's face a truth that cannot be repeated often enough: The state does not exist in any meaningful sense. It is a legal fiction. Depriving jurors of a role in gauging the consequences of a conviction empowers individual prosecutors. Did the founders intend prosecutorial tyranny?

The courts encourage blindness. Consider the case of sex offenders or immigrants convicted of a crime. All sorts of consequences flow from a conviction. Yet we are not permitted to tell juries about this. And when lawyers try to challenge these inevitable consequences, we're told they not part of the punishment, they are mere incidents to punishment. Tell it to a homeless sex offender registrant.

I agree that blind juries promote fairness in trial, but that is only if trial is viewed as a game. If I know the rules in advance of the contest, I know how to play. But isn't what goes on in a courtroom so much more than a game? Isn't liberty on the line and the people's right to have a say in weighty decisions that carry enormous consequences? Juries ought to know what they are doing and why. Requiring them to wear blinders yields something other than justice. I am not sure what to call the product.

Reprinted courtesy of the Connecticut Law Tribune.