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Sunday, July 25, 1999
Copyright © Las Vegas Review-Journal
COLUMN: VIN SUPRYNOWICZ
They're not subject to majority vote
J.P. writes in: "Hi, Vin -- I really enjoyed your book, but I have a hypothetical question about voir dire:
"Someone brought to my attention that without voir dire, a member of the Ku Klux Klan could be seated on a jury to judge a case with a racial element (i.e., white defendant charged with murdering black man). The Klansman could hang the jury, even though the evidence proves beyond a reasonable doubt that the defendant did it. I like the concept of jury nullification and I just want to make sure I have my ducks in a row before I start presenting this concept to others."
I replied:
When I ran the Southington Observer in Connecticut in 1978, during the last well-publicized outbreak of "Klan violence" in the Northeast, I sent a reporter and a photographer to a nighttime meeting and cross-burning by the Ku Klux Klan of Connecticut.
My guy and gal were blindfolded, driven around in circles, etc. When they got there to cover the event, there were eight or 10 Klansmen. I have no reason to believe their state membership was ever any larger than that.
In most states today, there are probably better odds that a randomly selected jury would contain Amelia Earhart, D.B. Cooper, or a former Mafia hit-man hiding under a federal witness protection program.
But regardless, "random" means "random." I'm sure your hypothetical "Klansman" -- if you could find him -- would also demand that no black jurors be allowed to sit on any case with a black defendant. But we wouldn't allow him to exclude blacks from juries, either ... would we?
It is better to see 100 guilty men walk free thanks to hung juries, than to allow one innocent person to go to jail because the government is stacking juries with (only) those who will agree in advance to convict.
If the other side had restricted itself to asking two questions: "Are you personally acquainted with or closely related to the defendant, the victim, or either of the lead attorneys in this case?" and, "Can you think of any reason why you could not render an honest and objective judgment in this case?" we might have tolerated that.
But the jury-stackers never stop there. No. They actually jailed a prospective juror in Texas last year because the middle-aged woman would answer only 98 questions on a 100-question jury questionnaire, refusing to put down what church she went to or what kind of car she drove.
Our 12-person jury comes down to us from Anglo-Saxon times. When Alfred the Great heard some of his judges were replacing jurors who proved reluctant to convict, substituting jurors who agreed to "enforce the law as explained to them by the judge," King Alfred rode to the scene, found those ninth century judges, and hanged them.
Once you allow the courts to ask, "And do you belong to any racist organizations?" you must also allow them to ask, "You don't belong to any groups that believe in legalizing drugs, do you? Or any groups that interpret the Second Amendment to mean it would be OK for folks to buy belt-fed machine guns over the counter at K-mart without having to show any government-issued ID?" At which point you'd be right back where we are today.
The reason some innocent black men used to get convicted so often in the South, back before 1968, is that the juries were all white, even in communities with 50 percent black populations. That was not random jury selection. Therefore, that standard canard is not a rebuttal of random jury selection.
If half the members of those juries had been black, most of those cases would have ended in a hung jury -- or even outright acquittals, I would argue, given that most white racists are the kinds of cowards who might have quickly caved in to a strong African-American presence staring them in the face in the jury room.
The randomly selected jury has a collective wisdom greater than its parts. It is not a perfect system, but it's the best one ever found, and more importantly it's the one we're guaranteed. When folks come up with these hypothetical, worst-case scenarios, confront them head-on: "So, you really want to repeal the written guarantees of the Bill of Rights? Have you written up your proposed changes? Can I see them?"
The reason our great-great-grandparents refused to ratify this form of government without having at least the most basic and indispensable rights written down, is so we wouldn't have to endlessly argue for these rights, every time someone tried to usurp them.
In an October 1789 letter to Alexander Addison -- a letter now in the possession of the New York Historical Society -- Albert Gallatin, who helped enact the Bill of Rights, wrote: "The whole of the Bill (of Rights) is a declaration of the right of the people at large or considered as individuals. ... It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of."
Vin Suprynowicz, assistant editorial page editor of the Las Vegas Review-Journal, is author of the new book, "Send in the Waco Killers."
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