People v. State

Law prof Doug Berman writes today at his Sentencing Law and Policy blog:

I have long thought that many sentencing reform advocates, especially in the wake of the Sixth Amendment Apprendi/Blakely line of cases, have failed to give enough attention to jury sentencing as a potentially valuable modern form for reform proposals.  Specifically, I see many potential benefits from a system that at least encourages jury sentence recommendations in all serious cases that go to trial.  And the latest high-profile (aka pretty-white-people) murder case now seems to provide a notable example of a sentencing jury demonstrating a special kind of case-specific sentencing wisdom.

. . .

Without determining or at least knowing the consequences of finding the defendant “guilty” beyond a “reasonable” doubt, how can a jury decide whether a doubt is “reasonable” in the first place?

They can’t.

Furthermore, although this is a double-edged sword from the defense perspective, how can the jury know if a doubt is “reasonable” if they don’t know what evidence has been excluded?

During the jury voir dire for a trial in which our criminal justice system lived up to its name and an innocent man was convicted, a potential juror, a nice older lady, told the court she couldn’t in good conscience serve on the jury because she knew that very often juries were horrified to learn after their verdict that evidence was withheld from them that would have led them to decide the case differently. Smart lady. Little did she know that just a few minutes earlier the judge had granted in its entirety a motion in limine filed by the prosecution and would during the course of the trial exclude so much evidence that the defense wanted to introduce that the trial would ultimately become a complete bastardization of the truth. She was struck from the jury for cause by the prosecution, and avoided the guilt that comes with deciding the fate of other human beings while ignorant.

After another trial, at the conclusion of which the jury had acquitted an innocent man of burglary after 30 minutes of deliberating, counsel and the judge went into the jury room to answer any questions or feedback the jury might have, and a couple of the jurors correctly guessed that my client had been in trouble with the law before. Yes, he had, I acknowledged. He’d been convicted in the past of a burglary. But he’d served his time for that crime, and the fact that he committed that crime didn’t mean he’d committed this one. The judge backed me up, telling the jury that’s why such prior bad acts aren’t admissible. I then told the jury that’s why I couldn’t allow my client to testify (whether potential jurors would hold it against my client if he didn’t testify had been a major issue during voir dire), because if I did the prosecution could have brought up his prior conviction for burglary. After I said that I felt kind of bad. I’d just told the jury I didn’t trust them. After all, hadn’t the jurors, who had just acquitted my client with all due speed, just told me that they had pretty much figured out all on their own that he’d been in trouble with the law before?

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