Saturday, October 29, 2016

The Law is the Loser, Part 3: Short Early Notes on the Malheur Verdict

As my readers probably know by now, the prosecution of half of the various people who occupied the Malheur Wildlife Reservation failed. Apparently jurors believed the the theory that "They got together and robbed a bank, but they're really not a gang."
There's going to be a lot said and written on this in the future, so this has to be regarded as informed speculation.
It seems that one juror, juror 4 who remains anonymous, swung the decision, and even apparently got another juror, juror 11, Curt Nickens, removed from the jury for disagreeing with him. As I said, I regard the legal reasoning for the acquittal specious. I expect that more about the jury deliberations will come out, and perhaps we will know more in a year or so. But I am thinking that the legal reasoning here is similar to that of the Burger, Rehnquist, and Roberts Supreme Courts, when Scalia was sitting on the Court. There are all these fine arguments in favor of indefensible rulings. This has penetrated the public consciousness, to the point where many people regard law as a matter of abstract reasoning, unfair and disconnected from reality, and find it appropriate to render verdicts in a similar way.


john_burke100 said...

I don't know what went on in the Malheur case jury, but the notion that "law [should be seen] as a matter of abstract reasoning, unfair and disconnected from reality" strikes me as not far from the standard explanation that judges give jurors. Jurors are instructed to take the law as the judge gives it to them (typically in jury instructions just before they begin to deliberate) and to disregard everything except the evidence introduced at trial. At the same time they're told they should apply common sense in evaluating witnesses' credibility and the meaning of forensic evidence. I think it's an impossible task--in fact I got excused from jury service once because I insisted I couldn't honestly promise to follow those rules, and added that I didn't believe anyone else could. If some juries cope with this by focusing on the abstract meaning of the law (the elenents of an offense, the standard of proof, etc.)--even if some jurors are using this tactic disingenuously, to reach a verdict they've already decided is the right one--I think the jury system bears a lot of the blame. Similarly, if jurors extend "common sense" to include "common knowledge", true or false, of matters that weren't in evidence, that's another way even a conscientious jury--and still more a biased one--can reach a verdict that observers might consider unjust or unwarranted. I don't know what might be an improvement on the jury system, though I know many legal systems don't rely on it, or use it very differently from US practice, but I think it's fundamentally and irreparably flawed.

Raven Onthill said...

The whole legal system is a muddle, but I am not sure how to reform it. (See my review of Benforado's Unfair.) I am, however, fairly certain that attempts to do so at this time are likely to make matters better; we do not seem to have jurists of the stature of the people who created the current system.

Just one more damn thing we can't fix.

Raven Onthill said...

Er, are not likely to make matters better.