Professional juries? Idea yields mixed verdict

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My mother is my hero. It goes without saying that she is always looking out for me. So whenever she comes across something interesting that she thinks I might be able to blog about, she passes it along.

Recently, she found a fascinating article in the September 2015 issue of The Costco Connection, of all places. And believe it or not, the topic was the merit of professional juries. You can view the article here.

And The Survey Says…

As you can see, this is a pretty controversial idea. Some people like it and some people don’t.

Those who support the idea say use of professional juries — made up of either retired judges and lawyers or others specially trained in the nuances of the law — would improve the American justice system in two significant ways. First, proponents argue that well-trained and knowledgeable jurors would eliminate the need for jury selection and comprehensive jury instructions, making civil and criminal trials a lot quicker. They also claim that professional juries made up of people well versed in the law would be more likely to render fair and appropriate verdicts.

Those who are against it say that paid juries would likely be “employed” by the government and that this would compromise their objectivity. They also argue that even though jurors now called to serve may not be familiar with legal issues, they nevertheless bring a wealth of expertise to the task. Finally, some say there is no constitutional basis for the use of professional juries.

From Where I Sit

Although I wasn’t surprised that this is a contentious issue, I was surprised to see that it’s not a new debate. A quick search of the Internet yielded articles dating back to 2009. I’m sure if I looked some more I could find information about the issue dating back further than that.

Alexandra Bogdanovic
Founder/owner of In Brief Legal Writing Services, Alexandra Bogdanovic. Photo by N. Bogdanovic

But in all of the articles I read, I didn’t see anything written by proponents or opponents that addresses a basic problem with the current jury system. Whether anyone cares to admit it or not, the fact is that most people now see jury duty as a burden. To the vast majority of Americans, jury duty is something to avoid, or something to “get out of.”

Trust me, as a former cops and courts reporter who covered my share of significant civil and criminal trials, I have heard plenty of excuses from prospective jurors. Some honestly act as if they would rather have an excruciating dental procedure without anesthesia than serve on a jury.

To me there is a second, and perhaps even more important issue. It is true that jurors who do serve now bring considerable expertise to the task. But they also bring overwhelming personal bias to it. And no matter what they say during voir dire, (when attorneys ask questions during jury selection) putting those biases aside is easier said than done. It’s just human nature.

All of that being stated, I’d rather take my chances with a professional jury. How about you? Leave a comment and let me know.

Supreme Court decision fatally flawed

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“Before Miller, every juvenile convicted of a homicide offense could be sentenced to life without parole. After Miller, it will be the rare juvenile offender who can receive that same sentence.”

– from the majority opinion in the recent Supreme Court of the United States  (SCOTUS) ruling on Montgomery v. Louisiana,  delivered by Justice Anthony M. Kennedy.

Four years ago, a Supreme Court ruling in Miller v. Alabama put an end to life sentences without the possibility of parole for most young killers.

The majority held that children are fundamentally different from adults, and that several key characteristics specific to minors — such as lack of maturity and the propensity for some to be easily influenced –should be taken into account when they are sentenced. Furthermore, SCOTUS ruled, an offender’s ability to change must also be taken into account. Finally, the Court said that a life sentence without the possibility of parole is too severe in most cases, and essentially amounts to cruel and unusual punishment.

Last week, America’s highest court held that the 2012 ruling can be applied retroactively.

In other words,  all juvenile offenders found guilty of murder and sentenced to life without the possibility of parole at any time before the Miller decision took effect must now get a chance to seek it. According to published reports, that could affect up to 1,000 offenders in three states.

Looking at these decisions from a strictly logical — rather than a strictly legal — standpoint, it is clear that they reveal a basic but serious flaw in the American justice system.

As we all know, the system is designed to protect the defendant’s rights from the time he or she is first questioned by the authorities through a trial (if the case comes to that) and beyond. The goal is to thwart unscrupulous police conduct, prevent wrongful conviction and remedy wrongful conviction if it occurs.

The preservation of a defendant’s Constitutional rights is paramount, and understandably so.

On the other hand — as the SCOTUS rulings in Miller and Montgomery demonstrate — the system routinely shows little regard, much less compassion, for victims and their families.

Of course it goes without saying that not all victims of violent crime are fine, upstanding, law-abiding citizens. One could even argue that some people who are murdered deserve their fate. Make no mistake about it: my argument does not pertain to them, but to ordinary people who have been killed in cold blood. It also pertains to the “young offenders” who have taken their lives.

Take Henry Montgomery. Today he is known as the petitioner in Montgomery v. Louisiana.  But he was just 17 when he killed a cop in East Baton Rouge back in 1963. He was ultimately convicted and sentenced to life in prison without the possibility of parole and is now 69.

In delivering the court’s decision that the Miller ruling should apply to Montgomery’s case, Justice Kennedy wrote:

“Extending parole eligibility to juvenile offenders does not impose an onerous burden on the States, nor does it disturb the finality of state convictions. Those prisoners who have shown an inability to reform will continue to serve life sentences. The opportunity for release will be afforded to those who demonstrate the truth of Miller’s central intuition — that children who commit even heinous crimes are capable of change.”

After spending most of his life in prison, Montgomery claims that he has changed. Maybe that’s true and maybe it isn’t. The bottom line is that he was convicted of killing Charles Hurt. A jury determined that Montgomery robbed Hurt of his future, and robbed Hurt’s family of a future with him. And that will never change.

Yet the Court makes no mention of the toll the crime likely took on Montgomery’s loved ones in its January 25 ruling on his case. Instead, Kennedy quotes from another case, Graham v. Florida, writing:

“Because retribution ‘relates to an offender’s blameworthiness, the case for retribution is not as strong with a minor as with an adult.'”

Yes, it would seem that a young killer’s rights trump all. The fact that a life has been taken means little. The fact that a family is left behind to pick up the pieces means nothing if the murderer was young, or too stupid to know better, or easily influenced.

A cynic could even say the odds are stacked against victims, their loved ones and the hard-working prosecutors that seek justice for them.

Alexandra Bogdanovic
Founder/owner of In Brief Legal Writing Services, Alexandra Bogdanovic. Photo by N. Bogdanovic

As anyone with even the most basic knowledge of criminal justice can tell you, crimes are committed against the community, not individuals. So technically, prosecuting attorneys represent “the people,” not the individual victim.  In and of itself, that fundamental lack of personal advocacy can be confusing and frustrating, especially for those traumatized by  violent crime.

Then there are the rules that can prevent the revelation of certain information about the defendant — such as prior convictions — at trial because it could be prejudicial. On the other hand, there’s little to keep the defense from calling witnesses to discredit the victim — especially if there’s anything sketchy in his or her past.

Now, to make matters even worse, the families of people murdered by minors initially sentenced to life in prison without the possibility of parole must come to grips with the fact that those killers may someday go free. For those who wish to prevent it, their only recourse may be to write the Parole Board or appear at the offender’s parole hearing to have their say.

I can only imagine how scary, unpleasant and stressful that would be. It would be cruel and unusual punishment, indeed.

*Because this blog is written for a general audience, Bluebook citations are not included.