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Commentary by Greg Bowes 02/28/2003
One year ago, on February 28, 2002, I argued a case before the Indiana Supreme Court (to view the argument, please go to http://www.indianacourts.org/apps/webcasts/default.aspx?search=holden&view=table&sort=). The issue was whether juries in Indiana could be told they have the right to be lenient when faced with a criminal case. The accused might technically be guilty, but there may be some other reason not to impose the full weight of our laws on his shoulders.
Another year has gone by where the full power of jurors has been hidden from the jurors themselves. Jurors are told what to do. They are told to give deference to the legislators who make the laws, and to the judges who interpret them. In many cases they are given not-so-subtle hints on how to interpret the evidence. They are even told they are not allowed to consider the true effect of their decisions: the penalty. All of these directions deprive jurors of the power they are given by the Indiana Constitution.
Let’s discuss how the Indiana Constitution works. The very first statement in our founding document states that “all power is inherent in the people . . ..” See Ind. Const. art. 1, sec. 1. Then it states, “In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury.” See Ind. Const. art. 1, sec. 13. Then it gives more specific instructions about juries in criminal trials. “In all criminal cases whatever, the jury shall have the right to determine the law and the facts.”See Ind. Const. art. 1, sec. 19. To review Article 1, Click Here.
When the drafters of our state constitution imposed this limitation on State power, they knew that by saying the jury shall “determine” the law, they were giving the jury power to have the final say on what the law was in a particular case. At the very least, this meant the jury could say that it agrees in general with a particular definition of a crime, but was just unwilling to apply that law in this case, against this person, under these facts. Plenty of examples have come up throughout history where we now agree this was an appropriate limitation on the power of government. In colonial times, British authorities accused Americans of violating unfair tax and sedition laws, and American juries refused to convict. Before the civil war, northern state juries refused to convict people prosecuted for harboring fugitive slaves. During the Vietnam era, many accused of crimes for their anti-war beliefs asked juries not to convict.
It is not hard to conceive of modern-day cases where having a jury trump the views of the legislature might serve a good purpose. I just learned of a case where a man found marijuana in a park where children play. He called the police to give them the marijuana, and he was arrested for possession. His intent was to keep children from finding and smoking the marijuana. He was technically in possession of an illegal substance, but he did it for a good reason. Shouldn’t a jury be able to tell the state authorities they went too far when they arrested this good Samaritan?
What really struck me as wrong in the case I defended was the trial judge’s refusal to let me talk to the jurors about their right to think of lenience before they decided my client’s fate. I had asked the judge to explain the concept in her instructions to the jury. When she refused, I let her know I intended to explain it in my closing argument. She ordered me not to do that.
This seems to be an elitist, paternalistic view of the judge’s role in our system. The judge’s ruling shows that judges view themselves and the legislators as having more power than juries in our system. They have more training in the law, so they must know justice and fairness better. The jury was instructed to follow the law as it was described to them, and no one was allowed to suggest to them that they can think for themselves. I read our constitution as giving the people the most power in our system of government. Our constitution trusts the good judgment of the common man.
In my case, no one was allowed to suggest that lenience has its rightful place in our system. The unfairness of this ruling was compounded by the fact that our Supreme Court has told us many times that juries may consider lenience when making their decisions. See Peck v. State, 563 N.E.2d 554, 563 (Ind. 1990); Bivins v. State, 642 N.E.2d 928, 946 (Ind. 1994). What makes this ruling particularly unjust is that it prevents the accused or his attorney from speaking the truth.
Many opponents of full jury power have suggested that it will allow juries to impose penalties for innocent behavior based on the prejudices of the jurors. They give as examples convictions of black defendants by white southern juries based on flimsy evidence. The system, however, has safeguards in place for that. First, the prosecutor has a duty to bring cases only after s/he is satisfied that it is just and proper. Second, a judge can overturn a jury conviction if the evidence does not provide enough proof. Last, convictions can be appealed, and the appellate judges can overturn unfair results.
Jury power opponents also point to cases where persons who have clearly committed awful crimes have been let go by jurors too sympathetic to the accused. In our history, many white murderers have been found not guilty by white juries where the victim was black. Many opponents point to the O.J. Simpson case as a modern example of jury prejudice freeing a guilty man.
There are many explanations I can think of, unrelated to jury prejudice, to explain the O.J. Simpson result. To keep this comment short and on topic, let’s just say the State of California, through a series of mistakes, failed to prove its case. To answer the critics on this point, I ask whether it is safer to rely on the prejudices of 12 citizens, who have no particular stake in the outcome, than to rely on the prejudice of one jaded and overworked judge, who many times is too beholden by politics to one special interest or another. For those times when the result seems unfair, doesn’t the fact that these are public trials give us a means to motivate ourselves to see what changes are necessary?
Our system of government is not perfect. It is very difficult to organize ourselves to insure perfect fairness at all times in all circumstances. Sometimes the answer does not come from our criminal courts. When it is all said and done, I want the people to have the final say on who goes to jail, and for what. The jury is the final spokesperson for the will of the people. We should make sure the voice of our juries is allowed to be heard. We should make sure that voice is allowed to sing the song of lenience when it is appropriate.
For more information about the power of juries, the Fully Informed Jury Association has a web site with links to many sources and bibliographies on the subject.
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