Because I’ll be talking about the case of Crown v. Peter Zenger, you know this blog post will be fun.
What? You’ve never heard of Peter Zenger? Well, read on.
I ended last week’s post with this question:
Because jurors can’t un-hear or un-see, how does having things stricken from the record work?
The routine goes like this. The witness says something. One of the lawyers says, “I object!” and offers the reason. The judge sustains the objection and says the comment will be stricken from the record. The judge then instructs the jurors to disregard the statement.
Of course, the juror can’t unsee or unhear something. Plus all the noise over objecting and striking the comment might wake up a dozing juror and call even more attention to the comment.
Scholarship backs up the observation and experiences of lawyers I know: Jurors work hard on following instructions. To take an example, Shari Seidman Diamond (a professor of both law and psychology at Northwestern), Beth Murphy (a research professor at the American Bar Foundation), and Mary R. Rose, (a professor of law and sociology at the University of Texas at Austin) studied 50 real-life juries and concluded that juries “pay substantial attention to the instructions and, although they struggle, they develop a reasonable grasp of the law they are asked to apply.” Moreover, “With some important exceptions,” the deliberations of the jurors and the manner in which they consider legal issues are “remarkably consistent with the instructions they received.” These researchers also concluded that the deliberations “assist in resolving individual misunderstandings.”
Even scholars who suggest more intensive training for jurors, like Northwestern Law School professor Jonathan Kohler, acknowledge that “Everyone agrees that jurors take their task seriously. They generally try to make judgments based on the evidence and the applicable rules of law.” He notes, however, that jurors often “split the difference” so they can go home more quickly.
That said, juries sometimes get it wrong. We have evidence of this from times when DNA later proves the person convicted didn’t commit the crime. Things go wrong in trials. Sometimes even good judges make bad decisions.
In particular, racial and gender bias in juries has been a problem. Until well into the twentieth century, juries were limited to white men. The result was that Black Americans were often tried by all-white racist juries. This was illustrated in To Kill a Mockingbird when the defendant was convicted by an obviously racist all-white jury in a trial presided over by an obviously racist judge. (To Kill a Mockingbird was based on an actual rape trial that took place during Harper Lee’s childhood.)
In 1935, the NAACP began challenging the practice of excluding Black Americans from juries. NAACP lawyers took the case of Clarence Norris—who had been sentenced to death by an all-white jury in Alabama—to the Supreme Court. They argued that Norris had been denied his constitutional right to an impartial jury because local law required that all jurors be white.
The Supreme Court agreed and reversed the conviction, saying that the exclusion of people from juries based on race denied the defendant equal protection of the laws guaranteed to him by the Fourteenth Amendment.
This ruling, however, was widely ignored as prosecutors found ways to make sure there were no Black men on the jury when a Black defendant was on trial. Then came a 1986 case called Batson v. Kentucky. James Kirkland Batson, a Black man, was on trial in Kentucky for burglary. Four Black men had been called for jury duty. The prosecutor used his peremptory challenges to strike all four of them. (A peremptory challenge is when the prosecutor or the defendant’s lawyer is allowed to object to a proposed juror without needing to give a reason. Lawyers are allowed a certain number of peremptory challenges.)
As a result, the jury was all white. Batson was convicted of burglary. On appeal, he argued that he had been denied the right to an impartial jury in violation of his Sixth and Fourteenth Amendment rights because the prosecutor systematically objected to jurors based on their race. The Supreme Court agreed and overturned Batson’s conviction.
So we now have a thing called a Batson challenge. If one party is attempting to manipulate the racial composition of a jury, the other side raises a Batson challenge.
The idea is that if the jury of 12 people who represent a cross-section of the population are told to come to a consensus, there’s a better chance at a correct decision than if the decision is left to a single person or small panel.
Guilty people often walk free. This, in fact, is built into the system. The 18th-century jurist William Blackstone, who was highly influential in the formation of our legal system, famously said, “The law holds that ten guilty persons should escape, than that one innocent suffer.”
We see this with the exclusionary rule. When evidence is obtained in violation of a defendant’s constitutional rights, the evidence is excluded from the trial. The theory is that we must balance two crimes: The crime the government committed in denying the right of the individual against whatever crime the individual committed. The exclusionary rule says that the government’s crime is more serious.
This, by the way, is why I have been saying that the criminal justice system cannot solve a political problem.
In a civil case, two citizens are pitted against each other. In a criminal case, the individual is pitted against the government. Defendants have rights because the government holds the power. Power unchecked is always dangerous. This brings me to the main reason defendants have the right to a jury trial. Jurors, unlike judges, are not part of the government. Juries, therefore, are intended to check the power of the government.
The Zenger Trial
William Cosby served as the British colonial governor of New York from 1732 to 1735. New Yorkers despised him. He was described as “spiteful,” “greedy,” “jealous,” “dull,” and “haughty.”
When New York’s chief judge, Lewis Morris, issued a judicial opinion that Cosby disliked, Cosby removed Morris from office and replaced him with a judge who was loyal to the king and would do Cosby’s bidding.
In response, Morris and two other lawyers founded a newspaper, The New York Weekly Journal. They promptly began publishing cartoons and satire ridiculing Governor Cosby. They accused him and his administration of tyranny and violating the rights of the people.
Governor Cosby vowed to shut down the newspaper. He went after Peter Zenger who printed the paper. Zenger was one of the few skilled printers in the colonies. The idea was that without Zenger, the newspaper could not be published.
Cosby tried to get two different grand juries to issue an indictment for violating the Sedition Act of 1661, but both refused. (The Sedition Act of 1661 made it a crime to say or write something that might incite hatred or dislike of the king. By the eighteenth century, the Sedition Act applied to government officials.)
Because Cosby could not get a grand jury to issue an indictment, he charged Zenger instead with an information, an alternate procedure that doesn’t require input from citizens.
Cosby brought Zenger to trial where Zenger stood accused of violating the Sedition Act. Zenger was defended by Andrew Hamilton of Philadelphia, said to be the most renowned lawyer in the colonies. As part of Hamilton’s closing argument to the jury, he made a stirring appeal.
The judge ordered the jurors to convict Zenger if they believed he had printed seditious articles. The fact that Zenger had printed the articles wasn’t in dispute. However, in under ten minutes, the jury returned a verdict of not guilty. The spectators burst into applause. The story spread throughout the colonies. Colonists hailed Zenger and Hamilton as heroes who stood up to and defied the hated Governor Cosby who, in turn, represented the British rule the colonists were coming to despise.
After the jury found Zenger not guilty, there was an “explosive growth of satirical attacks on various colonial governments.” Zenger’s trial didn’t establish new law or change existing law, but after Zenger’s trial, no British officer dared take a satirist to court in the colonies.
Zenger trial stands as a testament to the growing rebelliousness of the colonists. It shows how the colonists felt about freedom of the press and the freedom to criticize government officials. It also shows how a group of ordinary citizens stood against a hated tyrant.
Mostly the Zenger case illustrates why early Americans were in love with juries. Thomas Jefferson, said, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”
Someone said this to me:
I’ve heard a grand jury will give prosecutors anything they want. I’ve heard a grand jury will even indict a ham sandwich.
Yup. Defense lawyers say that. It could be because grand juries are nothing more than rubber stamps. Or it could be because prosecutors know better than to go to a grand jury without evidence or with transparently politically motivated case.
Early Americans, who knew firsthand what it felt like to live under a monarchy, so revered juries that the right to a jury is included in 4 separate places in the Constitution. The Fifth Amendment guarantees the right to indictment by a grand jury. The Sixth Amendment offers the right to an impartial jury in criminal cases. (The procedures for how to do that would fill another blog post.) The Seventh Amendment guarantees the right to a jury in civil cases.
Article II says this:
The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed.
The “where the crime was committed” part also has roots in the colonists’ feelings about the British. When British officers were accused of committing crimes in the colonies, the colonists wanted them tried in the colonies. The British wanted them tried in England, where they were more likely to get a sympathetic jury. The idea behind the clause in the Constitution is that defendants stand trial in the place where they broke the law.
The Zenger trial also brings us to the idea of jury nullification. This is when a jury knowingly and deliberately rejects the evidence or refuses to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself, or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness. As with Zenger’s case, the jury returns a “not guilty” verdict even if they believe beyond a reasonable doubt that the defendant broke the law.
Some critics say the very idea of jury nullification is misguided because a person’s conviction should rest on the law and the facts. Prosecutors obviously don’t like jury nullification. But jury nullification has often been used as a way of sending a message about unjust laws. For example when Congress passed the Fugitive Slave Clause, which compelled citizens of all states to assist law enforcement “with the apprehension of suspected runaway slaves,” abolitionists used the jury system to protest. Juries refused to convict people accused of helping people who escaped enslavement. Similarly, Prohibition laws were unpopular, so juries often refused to convict a person of possessing alcohol.
I can imagine grand juries refusing to indict women who cross state lines for an abortion, or petit juries refusing to convict a woman who had a “questionable” miscarriage. Thus grand juries (and petit juries) can serve as grounds for citizen protests.
Jury nullification works because jurors are protected regardless of their verdicts, and because a jury’s assessment cannot be overturned on appeal. Only legal errors in the trial can be appealed.
This brings me to a question from a reader.
If Trump is found guilty in the Manhattan case, what are his options for appeals?
When I had my appellate practice, I spent weeks reading a record closely and researching issues before deciding what was appealable and what wasn’t. In other words, this cannot be answered off the top of someone’s head. In general, though, the kinds of errors that are appealable are erroneous jury instructions that lead to a conviction and the admission of evidence that shouldn’t have been admitted, for example, evidence that is highly prejudicial to the defendant but is irrelevant to the charges.
One person who wrote to me said this:
I don’t believe the overwhelming consensus that the Manhattan case against Trump is a sure conviction.
Yikes. I knew some pundits were insisting this case is a slam dunk conviction, but overwhelming consensus? I decided to have a look. I opened a few social media apps and found lawyers gleefully evaluating the performance of the trial lawyers in Trump’s Manhattan criminal trial, which, incidentally, is precisely what Peter Arenella argues is a useless exercise. Others evaluated the strength of the evidence. Some evaluated whether Michael Cohen had been rehabilitated after the defense caught him saying something untrue. Left-leaning pundits and outlets told their audiences that Cohen had been rehabilitated. Right-leaning pundits told their audiences that he hadn’t.
Even The Washington Post got into the act, telling readers that the prosecutors “probably” got what they needed from Michael Cohen.
I’ve written about the perils of legal punditry here and here, so I’ll conclude with a comment from Jonathan Rivers, a lawyer with much experience in criminal courts who responded to last week’s blog post with this:
Pundits are useless when it comes to jury trials. One needs to sit through every minute of testimony and comprehend every piece of evidence. I have tried over 50 cases to jury and I could never predict what a jury was going to do. Jury consultants are useless as well.
I will add that even experienced litigators who sit through every minute of testimony and study each piece of evidence still won’t know how the case will come out because they don’t know what will happen in the deliberation room.
* * *
I have disabled my comments. Because this is my own website and not a social media site, I feel I must monitor the comments, and monitoring them has become too time-consuming. Instead I have added share buttons for discussion on social media.