Collapse of the American Jury System—The End Is Near (Part 1)

Deliberations is an interesting jury consultant blog that has commented recently on hung juries and how to prevent them. But why? What’s wrong with a hung jury? (Other than that tort lawyers who work for a percentage of the take earn nothing, that is, and, I suppose, the jury consultants on both sides are discredited.)

The more I think about chess as an analogy for jury trials, the more I’m becoming convinced that a hung jury is the optimum outcome of a trial, whether it’s in the criminal or civil court.

In chess, as evidenced by the current World Championship match between V. Anand and V. Topalov in Sofia, Bulgaria, the best games are those that end in a draw. In chess a draw indicates the players were evenly matched and neither one blundered themselves into either a disastrous loss or a self-defeating stalemate.

In a courtroom trial, if both sides were equally strong (as in a chess championship match), the jury would be unable to decide between the two. Of course, a long-standing principle of law is that in a criminal trial the defense is presumed to be in the right until the prosecution proves otherwise.

Unlike chess, the two sides are never equal in the beginning. And that’s the fundamental weakness in the American jury system, a weakness that’s bound to bring the whole system to a screeching halt very soon. Face it, we have a prison population that’s about 1% of the total population of this country (infants and children included). Our courts are so over-crowded that in some states convicts wait more than five years for their appeal to be heard or decided. Criminal trials rarely take place within a year of the crime (are rarely “speedy,” in other words).

What Is a Hung Jury?

A hung jury is more than merely a jury that can’t agree on a verdict. It’s a jury that has heard all the arguments and evidence, has had the judge admonish them at least once to try to reach a verdict, and has deliberated (probably intensely). After all that effort, at least one juror is unconvinced of the prosecution’s or plaintiff’s case.

What’s wrong with this? Nothing—other than the costs to the taxpayers of the justice system. The taxpayers have a right to say that a hung jury indicates something went wrong somewhere because otherwise the jury would have reached a verdict.

Consider the situation in which a murder trial ends in a hung jury (usually with only one or two holdouts). The judge and prosecution tend to consider this to be a failure of the jury and perhaps of the entire jury system. The defense considers this to be a minor victory; if it so chooses, it has survived to try again. But it also means a huge amount of public money has been spent to bring a murderer to justice and still hasn’t managed to do it. If the defendant is held over to the next trial in jail and is innocent, his rights have been violated. If he’s guilty and out on bail, he’s liable to skip town.

American citizens ought to consider such a hung jury to be a victory for justice but a failure of the justice system. What failed was the police investigators to find sufficient evidence, the prosecution to formulate appropriate charges, and the judge to ensure that everything was clear to the jury. The only times a jury should find a not-guilty verdict or hang is when the defendant is completely innocent or there’s insufficient proof of guilt.

To be continued . . .

“Now it’s up to the jury to decide” Michigan v Springer

That’s what CNN’s voice-over announced today in its broadcast of the verdict and sentencing of the Michigan couple charged with child abuse, torture, and murder of their special needs child. And that’s exactly what’s wrong with the criminal justice system: it’s always left to a jury of conscientious citizens to decide what to do when something horrible happens to children. No one in the massive state bureaucracy ever has to clean up the mess. No wonder no one wants to be a juror.

In Session needlessly sensationalized the Springer family tragedy as if it was a case of Cinderella tormented by an evil stepmother and wicked stepsisters. They called it “the Cinderella syndrome.” But by no stretch of this mystery writer’s imagination was any of the characters in this story a Cinderella.

Sadly, the victim was no Cinderella. She wasn’t the golden-haired, perfect daughter of a loving father, whom the stepmother and stepsisters envied. Callista Springer had numerous mental disorders that no one—not even the kindest, wisest psychologist on Earth—could have cured. It should have surprised no one that her parents weren’t capable of treating her well while protecting their other children from her influence and disruption of their lives.

Sidebar: It also came out during sentencing that the so-called evil stepmother was also being abused behind the closed door of the old house that burned down. Oops. Maybe CNN shouldn’t have called Mrs. Springer the evil one; after all, they had the benefit of hindsight, because the verdict and sentence were already decided when they began their broadcast two weeks ago.

Before CNN’s cameras went into that Michigan courtroom, the justice system ought to have made sure this case never went before a jury. The prosecutor was wrong to prosecute this as anything but a case of child abuse and manslaughter. Had the prosecutor not insisted on murder and torture charges, the defendants would likely have pled guilty or at least have waived their right to a jury trial. Surely they would not have asked their surviving daughter to testify in public.

Jury trials are all about the community’s response to a crime. Jurors represent the community. Jury trials, unfortunately, are also all about publicity. Prosecutors and judges (who have to be elected and reelected) need the media to keep their jobs.

In this case, the community and the state’s justice system were as much at fault as the parents. The state’s child welfare agency failed the victim; her extended family failed the victim; the school system failed the victim. The doctors who treated her failed her, too.

It shouldn’t have been “up to the jury.”

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Speaking Freely

Yesterday the U. S. Supreme Court decided 8 to 1 to uphold freedom of speech and overturn a federal statute (18 U.S.C. Section 48) that criminalized audio and video depictions of illegal acts of animal cruelty unless the depictions had “a serious religious, political, scientific, educational, journalistic, historical, or artistic value.” (Ironically, in light of the recent decision on Campaign Finance Reform restrictions of political speech and Justice Alioto’s famous headshake, Justice Alito was the sole dissenting opinion).

Yesterday was also the day on which the judge (Judge Stan Strickland) presiding over the highly publicized, sensationalized trial of Casey Anthony recused himself, because he read blogs and communicated with a blogger privately. Judge Strickland’s recusal order used the phrase “self-aggrandizing publicity hound” ironically. And, indeed, it is ironic, since the State of Florida has videotaped Ms. Anthony in private conversations with her parents and then “released” the videos to the press to be plastered all over cable TV, copied and published Ms. Anthony’s personal correspondence, and permitted cameras to broadcast from the courtroom every time Ms. Anthony’s attorneys file a motion, including a motion to have her declared indigent, in which she had to reveal in public how she had paid for her constitutionally guaranteed right to a defense.

Freedom to “Depict” Crimes

The Supremes got it right in U. S. v. Stevens (above). Justice Alioto protested that it should be legal to outlaw depictions of patently (“facially”) illegal acts when the depiction’s only purpose is the illegality. I understand his argument that freedom of speech can be taken to a logically absurd conclusion such that all illegal acts could be committed if they are committed on camera.

However, the federal law in question stupidly permitted depictions of illegal acts when they have a “value” other than satisfying a sexual fetish. Get real, feds: Speech is only “free” if its value is not regulated.

Consider this real scenario from history: A man broke the law repeatedly and was repeatedly imprisoned as a result. While in prison late in his life, he wrote a book promoting his illegal conduct and urging others to adopt his illegal ways. The government subsequently banned the book because of its illegality. No one could legally publish it, reprint it, or sell it.

The man was John Bunyan. The book was The Pilgrim’s Progress.

Freedom to Discuss Crimes

As kids we’re taught the jingle “Sticks and stones can break my bones, but words can never harm me.” Of course, the jingle is a way of saying we ought not to worry about the slurs that people throw at us. But in every other situation, we’re taught not only that slurs are “torts” for which we can demand monetary compensation but that some words we’re forbidden to utter.

Most people fear free speech. That never surprises me. I honestly can’t count the number of times people have asked me if I’m worried that I’ll give someone information in my mystery writing about how to commit a crime. My answer is always the same: No.

If someone is so dumb he has to turn to my fantasies in order to figure out how to commit a crime, he’s too dumb to get away with it. But I was rather surprised when recently someone asked me to help exonerate a convicted murderer.

Since then, I’ve been researching the issues involved in writing about a crime from a prisoner’s perspective and discovered that there are quite a few laws against freedom of speech when it involves crime. For example, I’ve learned that any communication I might have with anyone involved in a court action is subject to subpoena. If I write about a crime, I can be judged to be in contempt of court if I don’t turn over all my research to any judge who’s curious about it. I can be sued by just about anybody who’s even tangentially involved in the events I write about.

For example, last fall the Cook County States Attorney subpoenaed all the notes of Northwestern University journalism students who exonerated a convicted murderer.

And then, of course, there’s always the risk that writing about “suspect” topics will lead any writer to be scrutinized by federal security agencies.

Freedom of Speech in Prison

If John Bunyan were in prison in America today, The Pilgrim’s Progress would not be published or sold. Most states have so-called “Son of Sam” laws that prohibit prisoners from profiting from their crimes in any way, no matter how tangential. Effectively this makes it illegal for a prisoner to write a book and publish it.

If Casey Anthony had written those now notorious letters as a memoir for publication, they could not have been released to the public.

But arguably the world would be a worse place today if prisoners had always been prohibited from publishing. The list of significant literature written by prisoners is very long. For example, an Amazon list compiled by Robert Moore has 21 titles, some of which are collections of other works.

Off the top of my head, I can add to this list:

  • Eldridge Cleaver’s Soul on Ice
  • Alexander Solzhenitsyn’s The Gulag Archipelago
  • Cavalier poets, such as Robert Lovelace (“stone walls do not a prison make”): In fact, in the 16th and 17th centuries virtually every English poet regardless of his politics or religion ended up in prison at least once. Shakespeare is the rare exception.

But now in America no prisoner can write a book, even if he or she maintains innocence and claims to have been wrongfully convicted. No one in prison can even write about what it’s like to be in prison (even though such a book might deter a few people from committing a crime). And few writers are safe in writing about a prisoner’s story either.

It seems to me—a non-lawyer—that freedom of speech is either absolute or not a freedom at all. The Supremes’ decision yesterday in U. S. v. Stevens is a tiny, baby step toward acknowledging that as a fact.

Cinderella’s Classmates and Commercial Exploitation

Witnesses’ faces should be obscured on camera, every time a trial is broadcast on commercial TV. Yesterday CNN’s In Session broadcast a young, former classmate of fire victim Calista Springer.

Enough. Please.

In Session’s current coverage of the trial of two parents for the murder of their child (Michigan v Springer) is all the evidence I need to claim that non-investigative, non-expert witnesses deserve privacy rights. Most such witnesses should not be forced to have their faces broadcast on cable TV.

The seemingly endless coverage of the Springer prosecution’s case has displayed far too-many private citizens’ faces: a grandmother of the victim, stepsisters, cousins, in-laws, grade-school teachers, and more. Since the defense has yet to present its case (or cases), all these witnesses have appeared for the prosecution, but were forced to do so on camera. All—no matter how closely related to the family or how estranged—have presented a very dismal picture of the parenting skills and characters of the defendants. Unfortunately, not all these witnesses have presented good pictures of themselves, either.

Sidebar: Because I respect these peoples’ rights, not only to privacy but to their own opinions, I won’t enumerate the biased opinions that some of these witnesses expressed on the witness stand or in TV interviews. However, I think the CNN commentators ought to point out that in a murder trial witnesses are understood to have biases—understood by the law, that is, although apparently not by TV commentators. When the judge finally instructs the Springer jury, he will undoubtedly tell them to make up their own minds about the truth of what the witnesses said. But it seems to me as if CNN’s anchors have accepted every prosecution witness at face value.

The Springer trial isn’t the only trial in which CNN broadcast children’s faces. Elaine Clermont’s daughter was shown on camera, even though she did not testify in her mother’s trial. In the trial of police officer Ron Killings, CNN broadcast the face of a very young child who was ultimately deemed unfit to testify. In every trial, CNN shows mothers of victims, children of defendants who plead for mercy for their parents—this is entirely unnecessary.

Several times I’ve been seduced into commenting in this blog on witnesses (sisters-in-law, step-daughters, brothers) who appeared to me to be vindictive and/or self-serving during the broadcast of their testimony. After all, a trial is a public event at public expense, and when it’s broadcast on cable it seemed to me that it ought to be fair game for commentary. But I’ve changed my mind: it isn’t. I won’t do this again.

Look at what media coverage has done to Casey Anthony’s family: pickets have surrounded their house; they’ve been accused of incest; they’ve been suspected of complicity in murder. In Florida, the courts have so little respect for privacy, videotapes of Casey meeting with her parents in jail have been broadcast across the country.

Trials must be public if liberty is important to us. America can’t conduct Star Chamber prosecutions. Cameras should be present in all courtrooms, and the public should have a way of monitoring the proceedings while they’re in progress. The technology exists to accomplish this via the Internet. CNN’s occasional live broadcasts are also informative—live, unedited.

But, edited cable broadcasts of completed trials (such as the Springer trial) aren’t a good idea, in my opinion. Grandmothers ought not to be interviewed in order to reminisce about a deceased grandchild and express uninformed opinions about her mental state. Snippets of a teenage sister’s testimony in support of her parents ought not to be used as trailers to a commercial broadcast. School children who testify should never be shown on camera. The faces of grade-school teachers should not be exposed on cable TV. (And the interrogation of a possible witness most certainly ought not to be shown on TV.) Footage of witness testimony ought not to be edited into a dramatic montage.

American law supposedly protects private citizens from public criticism: libel and slander laws prohibit defamatory comments about private citizens. Most of CNN’s In Session commentators are lawyers who know how to characterize bystander witnesses such as those I’ve mentioned without expressly defaming them, but it seems to me exposing them to public scrutiny is an invasion of their privacy, whether or not TV commentators are polite to them.

Furthermore, once a defendant is convicted, then positive commentary on the prosecution’s case and critical commentary on the defense’s case are fair game. Unfortunately, as a consequence, when a cable program such as In Session edits a trial and then presents it after the verdict, the commentators feel free to express highly critical, defamatory opinions of the defense without fear. For example, Calista Springer’s stepsisters have been likened to the stepsisters in Cinderella and were accused of “picking on” her. This is grossly unfair to them.

Many aspects of In Session’s new format are quite good. I like the new, on-staff trial commentators, who are measured in their remarks. The live coverage of breaking news is very good. However, the commercials that air on TruTV are entirely inappropriate: I can take only so many clips of drunks being arrested in any context, but in the context of real life-and-death matters it’s grotesque. And even though In Session repeatedly assures its audience that no testimony is being edited out, in fact it’s clear that the trial coverage is severely edited: the only thing that should be cut out is the faces of private citizens.

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Cinderella, Wicked Stepmothers, and Demonized Caregivers—Michigan v Springer and Springer

Thankfully there’s no license required to have children, or the government would probably prohibit intelligent people from becoming parents. Unfortunately, this also means that very stupid people can have children and almost always do. I’m afraid I think that’s what happened in the case of Calista Springer.

CNN’s In Session trial this week is Michigan v Springer & Springer, a tragic case in which a special-needs child (Calista Springer) died in a house fire while under physical restraints, which prevented her from escaping with the rest of her family. Earlier this year, a jury found the Springers guilty, a verdict that represents (in my non-legal opinion) our society’s misunderstanding of the impossibility of providing adequate care in a home setting for many incapacitated people.

Special Needs Children and Home Schooling in Michigan

The Michigan Department of Education provides services to children with special educational needs within the context of the public schools. But the state also gives almost complete latitude to parents to choose to use the services in the public schools or to choose homeschooling. In the Springer case, the child was supposedly being homeschooled.

I happen to approve of homeschooling in many cases, even though I’m a product of public schools and spent most of my life in academe (as the child of an educator, a student, a teacher). However, the Springers don’t appear to have been qualified to properly care for their special-needs child, let alone educate her.

Sidebar: Much was made of the fact that the child was being homeschooled.  I suspect that most school systems resent all homeschooling families and would like to find an excuse to take them all to court as child abusers. Instead, it seems to me, school systems ought to embrace homeschooling (as highly cost-effective with taxpayer dollars) and provide extensive support services to homeschooling families to prevent future such tragedies.

The idea that the State of Michigan could find no way to deal with this family’s problems other than to wait for a tragedy to happen and then to prosecute the Springers for child abuse and murder is disturbing. Once again, it seems to me, a jury has been thrust in between the voters (who pay the salaries of the prosecutors and the Department of Education) and the failed local government.

What better emblem of the way governments dump their worst problems in the laps of jurors is there than this? The blazing house in which Calista died is across the street from the courthouse.

Evil Caregivers

In every murder trial involving a defendant or a victim with disabilities, the issue of care-giving always arises.

The parents of serial killers, for instance, are always tried in public opinion. When such a loving parent takes the stand to explain the defendant’s mental problems and ask for mercy, she’s often vilified in the media. The In Session commentators always find such witnesses’ attitude toward the defendant inexplicable.

With their eyes on reelection, lawmakers rush to the cameras to push for another special, new law, like “Calista’s Law,” in this case against restraint of children, even ones who are a danger to themselves and others. This seems to be the typical legislative response to deaths of children and other vulnerable people in their families’ care: to criminalize caregivers and to penalize families for situations beyond their control.

Sidebar: It sounds to me as if the Springers weren’t qualified to care for Calista. They did mistreat her, apparently, although I’m not sure it was intentional. In the televised trial, a fire marshal claimed that if the bedroom door had been shut when the fire occurred, the child might have survived. (But how many parents know it’s safer in a house fire to have all bedroom doors closed? Surely leaving a door open isn’t child abuse.) Much is also being made of the way they provided her with no blankets even when she was chained to her bed. And, it appears as if they might not have given her access to a toilet at night. However, it doesn’t really seem that the restraints were unjustified. She shared a bedroom with other children who needed to be protected from her. If they had locked the bedroom door to keep her from wandering off at night, they would have endangered all the children in the room. What were their options?

In other cases, legislatures and the courts have made it impossible for adult children to take custody of their elderly parents; for families to commit adults to mental institutions although they’re dangerous or incompetent and then have also required hospitals to release such people once medication has controlled their behavior; have made it impossible to force mentally troubled people to take medication, even when it’s intended to prevent suicidal or homicidal behavior; have forced school systems to accommodate special-needs children in the general student population, even when their behavioral problems present risks to other students.

Consider the case of the Ohio highway shooter, Charles A. McCoy, Jr.  He was paranoid schizophrenic in  his family’s care  (on medication after having been repeatedly hospitalized) when he murdered 24 people at random by shooting them through their car windows. Had they permitted his family to have him committed to a state mental hospital rather than requiring them to take care of him, he would likely not have become a serial killer.

Remember when Britney Spears was self-destructing? Even her parents had to jump through legal hoops to help her.

Families at Risk

More and more families are faced with the need to care for mentally challenged people—with little social support for their efforts. A child like Calista Springer is called a “Cinderella in the care of a wicked stepmother,” because other children in the household survived the fire. Her parents are murderers as far as the State of Michigan is concerned.

I suspect, though, from simply observing the defendants in the trial, that the parents are themselves mentally challenged. I doubt we’ll see them take the stand, because their attorneys will advise them not to, so we’ll probably never know whether their behavior was intentionally abusive or just colossally stupid. (Frankly, I think stupidity is the root of most evil.)

The Springers aren’t the only caregivers the law and the media misunderstand. Adult children who seek guardianship of elderly, incompetent parents are assumed by the law to be greedy and exploitative, eager to take their inheritance before their parent dies. Custody battles between divorced parents often end in a child’s forced visitation with a physically abusive parent (fathers almost always have access to their children even when they abused the mother in the children’s presence). The list of untenable court and government-imposed custodial-care situations is endless.

Longevity due to improved health-care and healthier lifestyles increases the percen
tage of elderly with severe mental disabilities (longevity also leads inevitably to elderly with physical disabilities, too). Increased live-birth rates also increase the percentage of children with severe mental and physical disabilities who must be raised by untrained parents. Post-traumatic stress syndrome (not only from warfare but also from domestic violence) is recognized more often now, but no one seems to know how to accommodate its victims, other than to urge their families (if they have one) to “seek professional advice” at their own expense.

I’m no advocate of letting disabled people fall through the cracks or hoping they’ll die quickly. And as a civil libertarian, I fear the power of the state to institutionalize people it finds undesirable. But surely we could provide families with training and advice on how to care for special-needs children and adults.

How does it help for a Michigan legislator to try to tell a family raising a severely troubled child what it can and cannot do to protect the child and themselves? (Instead, they ought to provide families with proper, safe, restraints and in-home training.) How does prosecution for murder help the surviving Springer children when it deprives them of their parents?

Why didn’t the Michigan school system provide education and advice to the Springers when it must have been widely known that the Springers were home-schooling this child?

Even mental-health professionals are challenged when confronted with individuals with problems as severe as Calista Springers’. Science has found no cure. All the high-IQs, Ph.D.s, and M.D.s in the world had no advice to give the Springers, who may not have been intentionally cruel but only very stupid.

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Writing and punctuating the Scott Roeder murder sentence.

I believe the First Amendment rights to freedom of speech and the press have been greatly diminished in recent years by both the Right and the Left. Blogging, in particular, is so fraught with political peril that I am literally afraid to write anything about the sentencing of Scott Roeder for the murder of Dr. George Tiller, which is currently being covered by CNN’s In Session.

Anyone who expresses support for a woman’s right to the privacy of her own body is likely to be harassed or worse by the likes of Scott Roeder. Anyone who expresses concerns about the way the termination of pregnancy seems to be used inappropriately more and more often is almost guaranteed to be relegated by Google to the lowly ranks of a conservative blogger—or outright banned from the rankings.

The CNN In Session live broadcast of Roeder’s sentencing hearing isn’t the only legal issue about which a blogger is wise to keep quiet. For example, it isn’t always politic to criticize the courts. I suspect I’ve been permanently dropped from the rolls of eligible jurors in Cook County because of what I’ve written here. (I know, that isn’t entirely a bad thing.)

Spam comments aren’t the worst comments people have tried to post on this blog when I’ve suggested, for instance, that the cops aren’t always right.

And, once, a website (about which I blogged concerning their participation in a trial) had me banned from Google. I had to submit massive documentation to prove I was innocent of any violation of my Google privileges. In fact, I’m still quaking in my boots lest I ever again even mention the name of the website.

Recently I made a comment about www.icopyright.com, which prompted a comment from said website to the effect that I had misstated what they are, namely a nonprofit copyright protection watchdog. Of course, what they really are is a nonprofit front for for-profit online newspapers that want bloggers to pay for links to their sites—or allow them to post free ads on their blogs (as if a reference isn’t free advertising already).

This latter form of censorship is particularly irritating. In this case it isn’t a political faction that is succeeding in stifling free speech, it’s businesses.

CNN is also (in my non-lawyer’s opinion) censoring the Internet when they cover past trials on In Session. When such coverage begins, all CNN archival stories on the case mysteriously disappear from their own websites, and even local newspaper and TV reports are replaced with 404 Page Not Found error messages.

So, for those of you who are concerned, as I am, that the for-profit media (including for-profit Internet sites) are behind an attack on bloggers, I’ve put together a list of online resources to help preserve your most-fundamental American right to speak your mind:

Frankly, it’s chilling just to run Google searches these days on “freedom of speech” and “First Amendment on the Internet.”

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