TCS Daily


Law and Order

By Arnold Kling - April 14, 2006 12:00 AM

No person...shall be compelled in any criminal case to be a witness against himself
-- The United States Constitution, 5th amendment

This past winter, my wife was called for jury duty. She served in a trial of a civil case, and her conclusion is that "It makes you feel more patriotic. Look. You could be living in Iran."

In March, I was called and served on a one-week criminal trial. I came to the same conclusion, but, as usual, it takes me longer to express it.

The charges in the case were first-degree assault (assault with intent to cause severe injury or death) and second-degree felony murder (death as the result of a first-degree assault). They stemmed from an incident that took place after a high school football game, in which the victim was beaten and later died from his injuries.

Getting Selected

Of course, I did not know this when I received my summons for jury duty. There were 286 jurors sitting in the jury lounge, and about 50 of us were called to this particular trial. Among these, I had a relatively low number, which meant that I was very likely to be selected.

The judge starts the jury selection process by asking very general questions to the entire group of potential jurors about issues that might cause a juror to be excused from the case, such as knowing one of the attorneys or having had an experience that might cause the juror to have difficulty rendering an impartial verdict. A lot of potential jurors go out of their way to answer "yes," hoping that they will be excused. However, you cannot simply declare yourself unfit for a jury. You have to make your case privately before the judge and the attorneys.

In fact, although a few potential jurors were excused, at this stage the judge tended to maintain the presumption that the juror is capable of being impartial. Meanwhile, the attorneys get a lot of information from jurors who try to get off the case. This may make the attorneys inclined to excuse a juror -- or it could actually cause the attorney to want to seat a particular juror. If an attorney spots, say, juror number 26 as someone he wants to see on the jury, he may excuse a lot of potential jurors with lower numbers just to arrange it so that 26 makes it to the panel.

When I was selected, I got the sense that the defense attorney was really happy. After the trial, she explained to the jurors that prosecutors basically try to choose conservatives and defense attorneys try to choose liberals. She said that one of the indicators that they use is occupation, and that an engineer is more likely to be a conservative and a teacher is more likely to be liberal. She says that defense attorneys tend to avoid lawyers on the jury, because a lawyer will tend to try to pick apart the defense (my guess is that this is because the defense is often emotional, while the prosecution is more factual, and lawyers are trained to be more factual).

I suppose that when I filled out a form months ago, I listed my occupation as teacher, because of my volunteer work at a local high . That would have led the defense attorney to hope that I would be a liberal. When I discussed the case afterward with my daughter, she came up with the theory that the defense attorney guessed that I was Jewish, and Jews tend to be liberal.

Another juror later told me that she tried to be excused because of her radical, left-wing past. Presumably, the defense attorney was happy with her, too. What the prosecutors were thinking can only be speculated about.

Another jury member was a teacher from a parochial school. She turned out to be no friend of the defense.

The defense attorney admitted that jury selection is no science, but have lawyers heard of Google? If the defense attorney had Googled me during jury selection, then she would not have mistaken me for a Jewish liberal with a Moses Complex.

Jurors Choose Roles

Why does jury selection matter so much? Now that it is all over, I realize that it is because the courtroom is a drama, and many jurors make their decisions by choosing roles. Some jurors identify with prosecutors and take on a prosecutor role. Other jurors identify with defense attorneys and take on that role. In many criminal cases, it is difficult for jurors to identify with either the defendant or the victim. That was true in this case, in which the assailants and the victim were portrayed as violent street kids, who might have stepped out of the pages of Random Family.

Once a juror has decided what part he or she wants to play in the drama of the courtroom, the law and the evidence in the case become mere props. Unless the prosecution draws nearly all of the jurors into identifying with the prosecutorial role, the prosecution's arguments will prove futile, whatever their merits.

I suppose that conservatives are more likely to assume a prosecutorial role because, as George Lakoff pointed out, conservatism tends to be correlated with "strict-father" morality, while liberalism tends to be correlated with "nurturant-parent" morality. Strict-father morality emphasizes punishment to keep the child from stepping out of bounds, while a nurturant parent tries to focus on, well, nurturance, in order to encourage the child to achieve material and moral competence.

In this trial, the defendant was not the chief assailant in the assault. The main assailant, a friend of the defendant, apparently had a history of animosity with the victim, and they confronted each other in the street the night of the murder. In the context of the confrontation, the main assailant, an 18-year old, asked the defendant, a 17-year-old high school junior, for a small bat which he knew that the defendant usually carried. The defendant gave the bat to his friend. Moments later, the main assailant used that bat to strike his opponent in the head. The defendant, the main assailant, and others then kicked the motionless, prostrate victim, who was taken to the hospital and later died of the injuries caused by the bat.

The incident was broken up by a young woman who courageously got out of her car and yelled that she was going to call the police. Although the group ran, the woman and other witnesses were able to describe the main assailant, who was soon apprehended. Both the woman and her boyfriend, who was driving another car (the incident occurred between their two cars) were able to verify the identity of the suspect once he was apprehended. However, the prosecution made no claim that either witness could identify our defendant.

The prosecution seemed to spend an inordinate amount of time establishing the guilt of the main assailant, rather than providing information pertinent to the defendant's role. Afterward, the prosecutors told us that their only motive for taking this approach was to make us start from a baseline level of certainty about the main assailant's guilt. However, during the trial, a lot of the jurors wondered what the prosecutors were up to, and we brought up some of our hypotheses during deliberation (we called this our "break for gossip"). For example, I thought that prosecutors might have been creating an opportunity to put on the stand the two police officers who apprehended the murderer, because those officers were a black man and a white woman. My thinking was that this would be an attempt to get the jury to be more sympathetic to the prosecution, by giving jurors someone to identify with on the prosecution side. Putting the two witnesses on the stand -- the brave young woman and her boyfriend -- might have served the same purpose.

Another juror thought that perhaps we were participating in a sort of mock trial, in that the prosecutors were practicing making their case against the murderer. Regardless of their intentions, for most of the trial, nothing was presented that incriminated the actual defendant in the case.

There were no witnesses who were both willing and able to incriminate the defendant. However, we were told that when questioned by a detective in the community investigating the case, the defendant gave information that led to further questioning. This interview, which was taped, was not played to the jury or submitted as evidence.

Several days later, the defendant was taken into custody and brought to an interview room. There, he was formally arrested, charged, and given his Miranda warnings by that same detective. The defendant did not ask for an attorney or decline to testify. The detective interviewed the defendant, and under questioning the defendant admitted that during the confrontation his friend had said "Gimme the bat! Gimme the bat!" and the defendant complied. The defendant also admitted to kicking the victim once when he was on the ground.

The interview, including the reading of the Miranda rights, was recorded on video and entered into evidence in the case. It was shown to us in the courtroom, and made available to be viewed again during deliberations.

Based on this confession, the prosecution charged the defendant with aiding and abetting the assault (hence the first-degree assault charge), and therefore with second-degree felony murder. They also charged him with something called "depraved heart murder," which was a separate theory under which we could have convicted him of murder.

The defense attorney made no opening argument. Often she appeared to be hesitant and uncertain. She called one police officer by the wrong name, then caught herself. She would start to ask a question, and then brush her hand over her eyes and say "strike that" and ask something else. More than once, the phrase "Columbo act" popped into my head.

She called no witnesses, causing the trial to reach an abrupt halt in the middle of the third day. Her closing argument consisted mostly of telling us repeatedly that the defendant was a "mere boy." Although she suggested that the defendant was willing to say whatever the detective wanted because he felt intimidated, she did not insist that the confession was inadmissible. On the contrary, she urged us to watch the video again in the jury room and to pay attention to the teenage mannerisms and deference to authority of this "mere boy."

After 2-1/2 days of hearing evidence, we were given the case to deliberate. Assessing the situation at half-time (the trial was held during March Madness), one might have said that the prosecution's case consisted solely of the defendant's self-incrimination, and the defense case was feeble.

Our Secret Deliberations

Jurors enjoy strong protection from having to reveal what goes on during deliberation. Afterward, we can say as much as we want or as little as we want. I am going to reveal a great deal about our deliberations and about my own feelings, while trying to protect the identity of other jurors. I have not consulted with any other jurors in writing this article -- in fact I do not remember any of their last names, and I did not obtain any of their email addresses or phone numbers. I get the impression that they are willing to talk about the case, based on the fact that when the trial ended -- late on a Friday afternoon -- all of us remained and had free-flowing conversations first with the defense attorney and then with the prosecuting attorneys. My descriptions of other jurors' points of view should be taken solely as my speculations and perceptions, not as a definitive record or a verifiably accurate description of the views of anyone other than myself.

User-Unfriendly Instructions

Once inside the jury room, one juror, although he was not a clergyman of any kind, asked our indulgence in joining him in a moment of silence. The Man of Faith, as I think of him, then composed a short prayer that was not exclusive to any religion.

Although I thought that I had understood the judge's instructions as he was reading them, he offered to provide us with a written copy, and when we were given one copy there was sentiment that all of us should obtain copies, so that was done. We began our deliberations by going over the instructions, but any hopes that they would provide definitive guidance were unfounded.

Part of the problem was the way that the instructions were formatted. The instruction about the charges used phrases such as "the defendant caused the death," but the defendant was not the one who hit the victim with the bat. Instead, the defendant was accused of "aiding and abetting," so that you had to say that what he did "aided and abetted" the causing of death. The instruction for interpreting "aiding and abetting" was on a separate page, which forced you to go back and forth between the pages, mentally cutting and pasting, in order to parse the instructions.

One juror, whom I think of as the Very Troubled Juror, kept coming back to the task of trying to combine "aiding and abetting" with the charges. We had to listen to her read out loud the separate pages and her synthetic combination of the pages. It was irritating by the third time, and over the course of three days she must have done it a dozen times. But to be honest, almost every time she did it, my perspective changed somewhat because of a nuance that I had missed before.

Another frustration with the instructions was that they were subject to differences of interpretation. For example, there was an instruction that the state had to prove beyond a reasonable doubt that the defendant's confession was voluntary. The instructions defined voluntary as not coerced, not threatened, and not induced. By that definition, I viewed the confession as voluntary.

However, the instructions then enumerated a list of considerations that the jury may take into account in determining whether or not a confession is voluntary. The seventh item in the list was the defendant's age, education, cognitive level, state of mind, and so on. To some of us, that made the issue of "voluntary" problematic. But how, if at all, could those considerations change one's view? Are you supposed to go "by the book," or should you use other considerations and "gut feel?"

The user-unfriendly nature of the instructions made our deliberations more protracted and difficult than they would have been otherwise. It added to the strain of what was already a stressful situation. I could not help wondering why the instructions were written this way, and by the end of our deliberations I had three hypotheses, or possible explanations.

1. The judge does not understand the needs of jurors, and he does not know how to write clear, user-friendly instructions.

2. The judge wants us to deliberate for days and have difficulty reaching a verdict. He was secretly cackling to himself sadistically as he wrote the instructions ("Bet they go back and forth at least three hours on that one. Oh, ho -- this one should really tie them in knots.")

3. The instructions are subject to input and negotiations from the attorneys in the case. This would cause the instructions to wind up looking like a committee document. Memoranda produced by committees are characteristically ambiguous, and ideas that are supposed to be logically connected can become physically separated in a collective editorial process.

I would have guessed that (3) was the most likely answer. However, my understanding now is that the judge does not really make up the instructions, for the most part. Instead, he usually chooses, from a set of pre-printed handouts, those instructions that he believes apply to the case. One can imagine a very thick binder that has on its pages every instruction that a judge might conceivably give in any possible case. Based on the charges and the way that the attorneys presented the case, the judge pulls out the relevant instructions. An attorney might argue about the inclusion of a particular instruction, and in rare cases may ask for particular wording. But what feels to a juror like a badly-designed or committee document is in fact like the proverbial Chinese menu. The judge places the order, and the jury receives the dishes, but it was not necessarily designed to be a coherent meal.

In my view, the instructions, particularly the ones to which the Very Troubled Juror kept returning, were almost impossible to sort out. I could imagine a lot of jurors simply giving up on interpreting the law and instead making a judgment based entirely on "gut feel." That is, rather than making a logical determination, a juror might say, "I feel like it was murder" or "I feel like it wasn't murder." In our case, I think we tried very hard to understand and follow the law. But we also honored our gut feelings, and I believe that it was right to do so.

The Parent Reflex

After we had done as much as we thought was productive to understand the instructions, we turned to the only meaningful evidence in the case, which was the video of the confession. I have a strong distrust of full-motion video with sound. Video is an excellent propaganda tool, because video engages your emotions at the expense of your cognitive function. It is very difficult to view any video with detachment.

At a cognitive level, the video of the detective and the defendant showed an incriminating confession, obtained by the book, without threats, intimidation, or promises. At an emotional level, it showed a teenage boy, in an awful mess, with no adult there to help him. He was polite, and almost endearing. The majority of jurors had children, and the main effect of the video was to trigger our Parent Reflex. In our particular courtroom drama, the role that many of us chose was that of the defendant's Surrogate Parents.

Incredible as it may seem, some teenagers are sweet and affectionate even with their parents. One of my fellow jurors had such a son. Not surprisingly, her Parent Reflex was extreme. Imagine being fortunate enough to have that type of son and then watching a video of another teenager, who theoretically could be your son, in a horrible mess, sitting with a detective, without you there to protect him. He needs you more than ever, and you are not there!

This juror, who I might call the Surrogate Mother, did not literally justify her views this way. She did not say, "I felt like I was the mother and I was not there." But she took on that role. She became desperate and frantic in her attempts to excuse and protect the defendant, offering implausible rationales for not regarding the bat as a weapon. Concerning the interview, the Surrogate Mother insisted that "I really think a parent should have been there! The detective should not have been allowed to question the defendant without a parent present! That was not fair." And that was one of her more rational arguments.

Another juror, who I might call the Surrogate Uncle, said, "He said it was self-defense, and if we're going to believe the rest of the video, then we have to believe that, too." In fact, the defendant never used the words "self-defense." At one point, he started to spin a story that blamed the victim for starting the confrontation from his car by reaching into the glove compartment to perhaps pull out a weapon. However, the defendant quickly and sheepishly abandoned this half-hearted attempt to construct an excuse.

The Surrogate Uncle said, "The video is not valid. Self-incrimination is against the law." That is an exaggeration. It is true that self-incrimination that is coerced, forced, or induced is a violation of the fifth amendment. However, there is no law against self-incrimination, as long as it is voluntary.

The Surrogate Uncle also had an explanation for the defendant's kicking of the motionless victim. "It was a war zone. Things like that happen in the heat of battle."

Because the Parent Reflex proved to be the deciding factor in this case, one would have to conclude that the defense was more effective than the prosecution. The prosecutors made no attempt to anticipate or to ward off the Parent Reflex, even though you would think that it would come up fairly often in serious cases where a juvenile is being tried as an adult. As far as the defense is concerned, I overheard some of the Surrogate Parents muttering that "The state didn't even get him a good lawyer." Thus, unintentionally or otherwise -- and my money is on "otherwise" -- the awkward-seeming conduct of the defense served to reinforce the Parent Reflex.

Did I mention that I, too, am a parent? I began to fantasize about what it would be like if the defendant could be sentenced to serve a short term and then given probation, the terms of which would move him to a different city and not allow him to have any contact with the older boys who were leading him down a violent path.

I am a nurturant parent, but part of my libertarian philosophy is that politics and parenting are separate functions and should not be confused. So this case tore me apart. My head was conservative, leading toward conviction. My heart was nurturant-parent, leading me toward acquittal. But I was not the only one having heart-vs.-head issues.

Denying the Undeniable

The state could have chosen not to charge the defendant with murder. My guess is that they were thinking that by including the murder charge they would make it easier for the jury to "compromise" on a guilty verdict for assault. However, this created an extreme form of cognitive dissonance for those jurors inclined to make such a compromise but who wanted to view themselves as logical.

As you would expect, there were many details of the fight that in retrospect were unclear or disputed. Did the victim start out in a car, and did he appear to reach in his glove compartment for a weapon, or was that all a made-up story? In reality, did the entire confrontation take place on foot? Did the defendant give the assailant the bat right before he swung it, or did he give the assailant the bat a few moments earlier, in which case the assailant must have stuck the bat in the back of his pants for those few moments? Did the defendant kick the victim only once, or multiple times? Did the defendant's kicks cause any serious injury?

Only one fact was undeniable. The victim was dead.

The Strict Fathers (i.e., those inclined to vote for conviction) felt that the defendant was guilty of first-degree assault but not of second-degree murder. No one bought the "depraved heart" murder charge, because the very name suggested that murder was in the defendant's heart.

One problem with finding the defendant guilty of assault but not murder stemmed from the definition. The second-degree felony murder charge requires exactly two determinations. First, a determination that the defendant is guilty of first-degree assault. Second, a determination that the victim died as a result of the assault. Once you find the defendant guilty of first-degree assault, in this case it follows as night follows day that you have to find him guilty of second-degree murder.

Ultimately, five jurors voted "guilty" on first-degree assault but "not guilty" on second-degree felony murder. In effect, although they never would put it in such terms, those five voted that the victim did not die.

Only one juror voted to convict on both counts, and she was crying as she did so. Although it was breaking her heart, she could not bear to deviate from the clear logic of the law. She refused to deny the undeniable.

My Vote

I was basically torn between two positions. One was for acquittal on all counts. The other was for conviction on first-degree assault only. I was acutely aware that the second position entailed denying the undeniable, but I was prepared to live with it.

Although it was fairly clear where we stood, we did not formally state our positions until the morning of the third day. Unlike the previous day, we went around the room in turn. What follows is a coherent version of my speech (what I meant to say, as opposed to how I actually said it. Not that my points failed to get through).

First, I am proud to be serving with you on this jury. Everyone is putting their head and their heart into the process.

(I said this in all sincerity. All of the jurors, including the Surrogate Mother and the Surrogate Uncle, were very intelligent, thoughtful individuals. We did not all come to the same conclusions, but each of us arrived at a conclusion that was reasonable and well-justified.)

As I see it, there are four doubts that people have. Was it self-defense? Was he responsible? At 17, is he too young to be tried as an adult? Was his confession voluntary? Everyone who is unwilling to vote to convict has one of these doubts, or a combination of doubts. I don't think there are any other doubts.

I'm going to "out" myself. I am a conservative, but the kind of conservative that is called libertarian. Here is how I look at all these doubts.

I don't buy the self-defense doubt. I hold him to the standard of a normal, law-abiding citizen. He knew that there were school administrators around, and there were police just around the corner directing traffic. If a normal, law-abiding citizen thinks that someone is pulling a weapon out of a glove compartment, the normal law-abiding citizen runs toward the police and yells, "Help! Police!" The normal, law-abiding citizen does not say, "I'll give my friend a bat, so that we can defend ourselves against a gun or whatever the other guy has."

Next, we have the issue of responsibility. We don't know when he gave his friend the bat, but we know that it was at some point during the confrontation, and we know that he knew that his friend and the victim had a history of fighting. We know that he was young and a follower, and he was going to do whatever his friend told him to do. So when his friend said, "Gimme the bat," he was going to follow no matter what.

But we have to hold him to the standard of a normal, law-abiding citizen. A normal, law-abiding citizen, if he saw a friend confronted by someone with a history of animosity, would say, "Hey, man, settle down." You certainly would not give your friend a weapon.

And the bat was definitely a weapon. Yes, it's legal to carry a bat. But in some jurisdictions it's legal to carry a gun. But even if it's legal, when you carry a weapon you have a grave responsibility. You have to make sure that it is not used incorrectly. A normal, law-abiding citizen who for some reason chose to carry a bat would be expected to handle it responsibly. That means keeping it away from someone who is involved in a confrontation and is angry.

Does it sound ridiculous for me to hold him to the standard of a normal, law-abiding citizen? Why? Do we say that "they" cannot be expected to do that? Who is "they"? All black people? I know plenty of black people who are normal, law-abiding citizens. Poor, black people? My daughter has an African-American friend whose family was evicted from their apartment for not paying rent. That girl would never hand anyone a bat in a fight. I have to hold him to the standard of a normal, law-abiding citizen. I would hold a normal, law-abiding citizen responsible, and by that standard, he is responsible beyond all reasonable doubt.

I'll skip over the age issue. The only doubt that sticks me is the doubt over whether the confession was voluntary. I said I'm a libertarian. That means that I worry about the awesome power of the state. I want to limit that power. I worry about the awesome and terrifying power of the state when it is used to [I had a temptation, which I tried to resist, to insert a long litany here. As I recall, I limited myself to one example, but I do not remember which one. Collect taxes? Operate schools? Regulate Wal-Mart?]...and I worry about the awesome and terrifying power of the state when it puts an experienced detective in a room with someone who committed a heinous crime. And he did commit a heinous crime. But he is 17, not well educated, not very bright, and he came into the room thinking that he had been arrested as some sort of technicality to enable him to act as a witness.

We all know that if there had been an attorney there to advise him, he would have remained silent, and we would not be here. Do we give the benefit of the doubt to the awesome power of the state, or do we say that his fifth-amendment rights were not protected? The fifth amendment says something about no man may be compelled to testify against himself. That's where the Miranda rules come from -- they are one way to protect someone from being forced by the awesome power of the state to testify against himself. But you can't just say, "We did Miranda, that satisfied the fifth amendment." The instructions say that the state must prove beyond all reasonable doubt that his confession was voluntary. I have much more than a reasonable doubt that the awesome power of the state went too far in obtaining this confession. So I will vote to acquit on all charges.

I should point out that each juror made an impassioned statement, and many were far more eloquent than mine as I actually gave it (here, I have edited out the stammering, half-finished sentences, and other real-world flaws). At least nine people gave their speeches in a tone that indicated, "It would be a waste of energy to try to get me to change my mind." It was about 11:30 AM on Friday. We had been deliberating since Wednesday afternoon, with time off to go home, sleep (or not), and mull things through. In our minds, we were ready for one final round of "closing arguments," and then to vote. We got halfway through our last round of statements when an early lunch call forced us to break.

I should also point out that, whatever the power of my rhetoric, I had considerable qualms that I might be playing the role of Surrogate Supreme Court Justice. Is it my job as a juror to take a by-the-book Miranda rights reading and say that it is insufficient? Or should I just accept the fact that if the defendant's testimony was considered admissible, then his rights must have been protected? I kept poring over the judge's instruction, wondering whether I was taking too much Constitutional law into my own hands as a mere juror.

Given these qualms, I can envision a scenario in which I would have voted to convict. The scenario could have arisen as follows: Most of the jurors said that they would have been willing to vote "guilty" of second-degree assault, which could have been based on the defendant's confession of kicking the victim, but did not require drawing conclusions about what the defendant was thinking when he handed the main assailant the bat. Had this been a charge, and had it come to a vote, then I think I would have voted "no" once, in order to register my fifth-amendment issues. However, if I could not have persuaded anyone else, I would not have chosen to be a "lone holdout." It's everybody's Constitution, not just mine, and if I have a more aggressively libertarian interpretation of it, I can only take it so far. (My judgment that my fellow jurors were reasonable plays a role here. If I had decided that they were a bunch of clods with no understanding of the Bill of Rights, I would have been willing to hold out in this hypothetical scenario.)

Agreeing to Disagree

Sometimes, serving on a jury is a bonding experience. Under great stress, holding the fate of another citizen in their hands, the jurors become closer and behave as a unit. You would think that this would lead juries to gravitate toward one side or the other, and perhaps that is often the case. In our case, it produced a strong respect for differing opinions. The bonding showed up in our willingness to honor and respect the viewpoints of those who were headed toward taking a position that differed from our own.

After lunch we took the vote. All 12 voted not guilty for "depraved heart" murder. Six voted guilty of first-degree assault, with one of those also voting for guilty of second-degree felony murder (this is where she broke down crying). Six voted "not guilty" on all counts, in most instances based on a combination of the "four doubts." I stuck to my one doubt.

At this point, because only one or two jurors gave any indication of having a less-than-firm position, our foreperson sent a message to the judge saying, "we are not unanimous and both sides are firm." We expected the judge might try to ask us to deliberate further, but instead he said that, given how long we had deliberated, he respected our judgment.

With a hung jury, the case has to be re-tried. The judge set a new trial date, for August. This means that unless a plea agreement is reached, the defendant will remain in jail, since he was unable to post bond. All of the jurors believe that the defendant "did wrong" and deserves punishment, so few would question his being held. An additional consideration is that he may be at more risk if he is out on the street than if he is in jail -- one might speculate that there are friends of the victim who have a history of violence and a score to settle. However, the fact is that he is being deprived of his liberty without having been proven guilty of a crime, and conceivably he will never be proven guilty of a crime.

Beyond Miranda

After de-compressing from the trial, my "Surrogate Supreme Court Justice" position on the fifth-amendment issues has become even firmer. I would like to see the Bill of Rights interpreted using first principles.

The folk beliefs about the fifth amendment are that accused criminals have "Miranda rights." We know from movies and television that "you-have-a-right-to-remain-silent-you-have-a-right-to-a-lawyer-and-anything-you-say-may-be-used-against-you-in-court."

Since the Miranda decision, the debate has been over whether the Miranda requirements are appropriate (the liberal point of view) or too restrictive on police (the conservative point of view). Based on my experience in this case, I would take the position that the Miranda requirements are not restrictive enough. We should do even more to protect the rights of the accused.

Going back to first principles, the Constitution says that no one should be compelled to be a witness against himself. To me, that means that there is nothing to stop you from making a confession and being the only witness in a case against yourself. However, that has to be a clear and conscious choice. If you choose to make a statement without an attorney present, then to me that seems exactly like choosing to represent yourself in court rather than use an attorney. That, too, should be a conscious choice.

I would say that the state's burden of proof should go beyond having to show that the defendant was read his Miranda rights and that he signed a statement to that effect. Based on my experience in this trial, with respect to confessions I would like to see jury instructions that include something like this:

For the defendant's statement to be considered voluntary, you must be satisfied that

1. The defendant clearly and completely understood the charges. The defendant does not need to understand why the state is making its accusations or the possible consequences of conviction, but the defendant does need to grasp the nature of the crimes that are given in the accusation.

2. The defendant made an intentional decision to speak in his own defense without the aid of an attorney.

In the case on which I was a juror, the defendant arrived at the interview with the detective thinking that he was a witness and that his arrest was a mere technicality. After the charges were listed, he leaned back in shock and asked, "How?," indicating genuine disbelief. In my view, it took a while for the reality to sink in. It was only much later in the interview, after he had signed the Miranda statement and revealed incriminating information, that he appeared to focus on how serious the charges were and how much trouble he was in.

Given the way that the interview unfolded, I do not believe that the defendant had the experience or presence of mind to realize that he needed an attorney present. I think that the detective should have said something that would have caused the defendant to consider the issue more carefully. Perhaps something like, "One thing for you to consider is whether you will want to represent yourself or whether you want to have a lawyer to advise you and to argue your case. If you do not have the money to pay for a lawyer, the state will supply you with a lawyer. Do you want a lawyer, or would you prefer to act as your own lawyer?"

Professional Juries?

In February on TCSdaily, Alex Knapp argued for professional jurors. He wrote,

"If you were on trial for murder -- or subject to a lawsuit that could deprive you of your freedom or of all your assets -- would you really want your fate to be decided by 12 people literally picked at random from off the street?

"...A jury that is trained in properly evaluating evidence is more likely to arrive at an accurate conclusion with respect to the trial's outcome. Additionally, professional jurors would be more familiar with the trial setting, and would accordingly be less likely to be confused or intimidated by the proceedings."

I agree with my wife, not with Mr. Knapp.

First, his proposal assumes that the law itself is clear and correct, and that what I have been calling "gut feel" only introduces noise into the system. But sometimes, as Dickens' Mr. Bumble put it, "The law is an ass." In our case, a professional jury, taking a logical, by-the-book interpretation of the law, probably would have convicted the defendant of murder. Not one of the twelve of us believed in our heart that this was the correct decision.

Of course, if the prosecutors knew that they were going to have a professional jury, they might have exercised discretion and mercy and elected not to charge the defendant with murder. But increasing the predictability of juries and instead relying on prosecutorial discretion hardly seems like an improvement.

Second, switching to professional juries would undermine our democracy, because it would exclude ordinary citizens from having the power that we had for our one-week trial. For one week, we could exercise the awesome power of the state. We had the power to convict or acquit, to act as Surrogate Supreme Court Justices interpreting the fifth amendment, or even to deny the undeniable. We are safer when such power is dispersed among amateurs than when it is concentrated in a group of professionals.

Serving on a jury keeps ordinary citizens in touch with the awesome power of the state. We see how that power is used, and such visibility serves as a powerful check against abuse of power. In fact, thinking about this issue has me reconsidering my views on the all-volunteer army. War, too, is one of the most serious manifestations of the awesome power of the state. A professional army is a more effective army, just as a professional jury might be a more effective jury. However, there may be something to be said for keeping ordinary citizens aware first-hand of how the awesome power of the state is wielded in time of war.

On the second day of the trial, before we were called in to the courtroom in the morning, I was talking with the Former Radical Leftist, and she said that she wished that we had a Canadian-style healthcare system. I bit my tongue, not wishing to appear disagreeable.

On the fourth day of the trial, as the jurors were firming their views, the Former Radical Leftist began ranting about the conduct of the prosecution (her view of the case ultimately was the closest to mine of all of the jurors). She blamed her inability to find the defendant guilty on the failures of the prosecution to make its case. "The state should have [done X], the state should have [done Y], etc."

Each time she said the phrase "the state," she spat out the words as if they were a profanity. Again I held my tongue, but it occurred to me that this could have been a "teachable moment" to point out that this would be the same state that would be running a Canadian-style healthcare system. In the end, I never said that, but I gently mentioned at lunch the next day that I disagreed with her views on health care policy, and that I have written a book on the subject. She asked questions and raised issues, and she said that she would look out for the book. If and when she does, I wonder if her experience on the jury will affect the way that she views the option of state-run health insurance.

Finally, if nothing else, serving on a jury brings important experiences to the jurors. Even though it can be argued that the Parent Reflex impaired our judgment, you still have to marvel at a system that takes twelve educated, mostly-affluent, mostly-white citizens, and for a few days turns at least some of us into the Surrogate Parents of one poor, badly-educated, African-American teenager. We agonized over what was right for him, prayed for guidance about him, lost sleep over him, and cried over him.

Does he have any sense of what we gave up of ourselves during his trial? My instinct says that he cannot possibly understand and appreciate the full meaning of our jury deliberations. Just as my instinct says that he could not possibly have understood and appreciated his rights under the Constitution during the detective's rote recitation of the Miranda warning.

(Note: A few weeks after this trial, Quatrelle Adedeji, the main assailant, was found guilty On April 7, 2006 of first-degree assault and second-degree murder.)

Arnold Kling is an adjunct scholar with the Cato Institute and the author of Crisis of Abundance, a book on health care policy, published by Cato.

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40 Comments

Thanks for the story - but this second-guesser thinks you were wrong
First, thank you very much for the detailed story of your involvement of being on the jury. I too believe that we should never have "professional" juries. On the two times I have served on juries, I have felt very proud to be a citizen and have the responsibility to be a juror.

The defendent was guilty of assault. He did it, he admitted to it (after being PROPERLY warned). What you all accomplished was that he thinks he can get away with it. Your logic of the "normal law abiding citizen" was not carried to it's proper conclusion.

Aiding and abetting
Your account is one of that most typical of situations-- one where ignorant kids with few resources are sent to prison for association with other ignorant kids. The real crime here is failure to think about one's life-- and the poor impulse control that follows that outlook.

In fact two million poor people, with few intellectual, family or financial resources, sit in prison today, either for committing equally ignorant acts or just "aiding and abetting" the acts of friends of theirs. Frequently this just amounts to being in the vicinity when an illegal act goes down.

What does poverty have to do with it? For one thing, they all get assigned bad lawyers, just as this defense attorney failed to present a competent case. Our death rows are filled with low-IQ individuals who present themselves poorly and are defended by drunks and small town fifth raters who don't much care about them. Many are guilty of something, not necessarily the crimes they are convicted of.

For all that, I think justice was done in the jury's failure to arrive at a verdict. The boy was clearly guilty of taking part in an assault. But the part he played was so minor that it in no way approached the hurdle of murder or manslaughter. Convict him and he will just become one of those two million who get educated in prison, and then return in a few years to live down the street from you.

My $.02
Thank you for your story Mr. King. Please allow me to make a few comments regarding it.

-So basically you voted Not Guilty because you felt bad because you thought the kid had basically been tricked into telling the truth. That's not a reason to find the defendant Not Guilty.


-"I was basically torn between two positions. One was for acquittal on all counts. The other was for conviction on first-degree assault only. I was acutely aware that the second position entailed denying the undeniable, but I was prepared to live with it." So much for being undeniable and logically consistant.

-Even a teenager with a sub par IQ would know that kicking a man (even if only once) while prostrate on the ground, (after being beaten into that position with your bat) was not a good thing to do.

-As for the lack of a Super Star defense attourney in the Johnnie Cochran, Clarence Darrow mold, she achieved a victory when the mistrial was declared. In any court case there are only three outcomes Win, Loss, Draw. Two thirds of the outcomes can be considered favorable for the defense.

The purpose of th ejury
Thank you, Dr. Kling, for a thoughtful essay into the inner side of the jury process. I would love to sit on a jury, any jury, but as I am an attorney, I will likely never have the opportunity.

The main point that I have to press you on is that of the potential for cognative dissonance for voting yes for the assault and no for the felony murder. Though it appears that this would be problematic, what your jury was likely not told, and what few judges will tell a jury, is a legal point that I believe resolves the dissonance.

The jury is, in a very real sense, the last bulwark against a tyrannical regime. The jury's supposed responsibility is to assess guilt based on facts, but it is also within the jury's right to assess guilt based on law - to nullify the law. It is entirely within the jury's purview to say "yes, the facts fit the crime, but in this case, we find that the law should not be applied."

So, yes, a finding of guilty on aiding and abetting the assault would logically require guilt on the felony murder, however, due to the jury's ability to determine the law, the jury may choose to decline to find guilt where they feel that none should be found for equitable reasons.

Good article...
Having been on both sides of the issue, as the police officer and as an accused, plus having 30+ years of experience with Courts, police and some involvement with relatives who have strayed into things like this, I applaud your article.

The law is seldom clear-cut, easy or simple. Those who say it is fail to take into account the cirsumstances and the background of the people involved.

Our society has taken to quick and easy solutions. Locking up a 17 year old will not solve these problems. Nor will the death penalty or "habitual offender" laws.

Recently we had a case here which resulted in the driver of the vehicle, (who said he was not aware that there was a robbery, which was confirmed by the actual robber) getting a tougher sentence than the person who actually robbed the store!

My feeling is that the search for justice gets caught in the need for a conviction record by prosecutors. This is evidenced by the absolute refusal, in some cases, of the preosecution to admit error or acknowledge that they might have the wrong person, even in the face of absolute evidence to the contrary, such as a confession by another defendant.

I had rather see the system go "overboard" to protect the rights of defendants, since it is much easier for the process to be abused by the use of government authority than by those accused.

It is better that 10 gulity men be freed than for 1 innocent be convicted.

And, as an afterthought, if you think it can't be YOU sitting at that defense table, think again. Do not ask for whom the bell tolls, it tolls for thee.

Another argument against professional juries
Professional juries would immediately become susceptible to corruption (like politicians.) I think this is another essential defense of the imperfect public jury system.

Another jury experience
I found your story particularly interesting because I, too, had my first summons to jury duty last month. The case was also a murder and assault case, though in this case the defendent had committed the murder himself and had also held hostages and shot one of them. The defendent and victims were all related. The defendent was a diagnosed schizophrenic, had been hospitalized in the past, and was not taking his medication at the time of the crime. (He said he couldn't afford it, and his victims acknowledged knowing he wasn't taking it - this could launch us into debates about responsibility and health care). The question in this case was whether he was not guilty by reason of insanity.

I was quickly drawn into a fascination with how the system worked. I would have liked to have been involved with the whole trial process, as you were, but I was excused from the jury after several rounds of questioning that took the better part of a day. But my participation in that part alone gave me lots of insights and raised my interest and curiosity about ourjudicial process to new heights.

I identified myself in the first round as a past victim of a crime and described a carjacking incident that ocurred about ten years ago in Uganda. The prosecuting attorney was asking the questions, and asked if I felt that experience might affect my objectivity in this case which also included guns. I expected to be excused after that, and had already become interested enough that it would have been a dissapointment to not give up the four or five days of my life that the trial was expected to last. The attorney for the defense later returned to the incident, asking me if I would call myself "adventurous and independent". I replied that I was not particularly so. I "survived" that round of questioning and two more.

I had started to feel confident of my position on the jury as several other potential jurors were dismissed and replaced and the questioning contined. But when I answered affirmatively to the question of whether any of us had ever written a letter to an elected representative, I was asked if I thought it had influenced the representative's actions, or if I had thought it might. I said no to both, then, asked why I had done it if I "didn't think it would do any good", I replied that I wrote it to protest government policy that so violated my conscience that I felt I had to speak up, even though my senator was clearly supportive of that federal policy. Minutes later that round of questioning ended and this time I was excused.

I was dissappointed. My friends and families consoled me by saying that they just didn't want people on the jury that had a conscience. But I have to say that I was encouraged by what I saw as a process of seeking people who seemed open-minded and willing to consider different angles. Before I was excused, I saw people go who said they agreed with the saying "If I want something done right, I should do it myself", and who said they prefer to work alone, and even that they would demand to speak to the manager if they received poor service in a restaurant. I'm not sure how effective the Defense Attorney's strategy using responses to hypothetical scenarios was, but I do think that I, along with the others who were excused, gave responses that he had determined indicated closed minds, preformed opinions, and inflexible adherence to principles. They also wanted jurors who would work together, valueing each others insights and opinions.

Basically, I did not see a process, as the citizen-jury system is so often presented in movies and in argument for professional juries, that seeks stupid people, unable to think for themselves, who could easily be led to a particular conclusion. On the contrary, there seemed to be a genuine effort to select jurors who would reserve judgement until theycould carefully consider the facts of the particular case as presented by both sides.

Of course, I think they erred in excusing me!

excellent post
I too have been on both sides of the aisle. I would go a bit further and insist we do away with the adversarial system we now have. The state should have to prove to a grand jury that he has "enough evidence to win" a case, not just enough to show that a crime has been committed and the person being charged may have played a part.

Prosecutors have an awesome array of tools at their disposal, most defendants have few. Often just a court appoint attorney with little experience and no budget for investigation.

In the end, we should never have innocent people convicted in this country; but we do. Some of that is due to the frustration of police and prosecutors in dealing wityh real bad criminals, especially those who can pay for their own defense. These people do get off the hook more often than they are convicted.

When was the last time a high profile celebrity was convicted of a major criminal activity? I think it was Mike Tyson and, Ironically, he might be the only one who I think he was innocent of the crime for which he was charged.

criminal standards
The standard has always been that everyone involved in a crime, is equally responsible for all aspects of the crime.

The question then becomes, how involved does one have to be in order to become legally involved.

Handing a weapon to someone you know intends to get into a fight strikes me as being sufficiently on the other side to justify prosecution. Though I wish they had gone for a plea bargain, with one of the parole conditions being, staying far away from the other people involved in that fight.

Not Guilty by reason of stupidity
I am disturbed by this line of reasoning. Basically, the kid somehow assumed that it was ok to kick a helpless person and that he would not be charged for it since someone else used a baseball bat (the kid's) on the victim first and the victim probably died of the bat to the head, not the kicking.

Because the kid assumed that attacking a helpless person wasn't serious enough to be charged for, he willingly related his role in the assault.

This is not an abuse of the awsome powers of the state. This is just stupidity on the part of the kid.

Military vs Civilian Juries
Many years ago I heard a speach by a military attorney (JAG). He postulated that a guilty defendant would fare better with a civilian jury whereas an innocent would do better in a military one. Comments anyone?

I suppose I'll never understand why a guilty person can not only escape punishment but also be declared not guilty simply because another MAY have violated some Right. To me, this is punishing society for the crime. Yeah, he did it, but he's not guilty of the crime because the detective got him to confess to the crime without his mommy being present?

After all, we hire and train the police to protect us against the bad guys. Then we berate the police for doing exactly what we asked and paid them to do.

Here's my understanding of why rights are so important.
When the jury decides to let a guilty defendant off the hook, seemingly to punish the prosecution, they do so because (1) the prosecution has abused the law, and (2) allowing the prosecution to abuse the law is the equivalent of destroying that law, because they will do it again -- and again and again and again -- once the precedent is established. You are right that a free guilty assasin is bad for society, but a prosecution that abuses the law is even worse, believe it or not. A prosecution that can abuse the law is in essence thumbing its nose at those who write those laws and saying, "We the All-Knowing All-Powerful Prosecution know better than you the people, represented by your legislature, what is right and what is wrong for society." If the jury lets the prosecution continue in this mindset, prosecution will, by nature, and as has happened so many times throughout history, turn that little inch into a foot, and then into a yard; and this leads without exception to repression of the worst kind, such as the world witnessed in Stalin's Russia. Abuse by the state is much more to be feared than the abuse by any one individual. The individual, if he is a hard criminal, will abuse again, and the prosecution can then come back with a clean agenda and put that person away for good -- even to death -- as long as they play by the rules of a civil society.

What law? We don't need no law?
WJ:
Nice analysis of a defendent who has learned that the law means nothing. One wonders if the parents of the dead boy shared the feelings of the author. I have seen the people tthe author described on the jury. People who didn't use logic and weren't swayed by the facts. Its a shame that people are so illogical. The author was wrong in a major instance, the defense attonrey made no mistakes, she picked exactly thew sort of jury that she wanted and got a murderer off.

Rights Are Important
I did not mean to imply that rights, as laid out in our constition, are not important. No one should be forced to make self-incriminating statements, for example. I have a problem with this case, however. Just because his mommy wasn't there it was concluded that the confession was forced?

It seems to me that the number one job of our laws is to protect society. Abuse exists and cannot be excused unless, of course, it is an individual who is abusing our laws if it is perceived his/her mommy is not present when questioned.

A previous poster brought up the hackneyed phrase that "it is better that 10 guilty men go free that 1 innocent be punished". Really? How about 1/100? 1/1000? How can that one innocent have any effect whatsoever on a self-confessed criminal?

The prosecution's job is to prosecute criminals using evidence brought to them by the police. Just what law did the prosecution "abuse" in this case?

In this case the prosecution did "play by the rules (laws) of a civil society". It was the jury who changed the rules in the middle of the game.

What logic!
If a man gives someone a gun with the knowledge of what will transpire we are to believe according to you that poverty absolves this man of responsibility for the murder that will occur.


No wonder we have crooks like Hillary making 100,000 on a 1,000 futures investment, Indeed Justice is blind.


We ought to empty the prisons because the poor uneducated couldn't pay the bribes that Kennedy did when he drowned that poor girl. I love this logic.

Duh! Facts who needs facts?
Once past the rhetoric about bulwarks against tryanny we get to exercise mob rule. The real truth you point out is that there is no law only men, and men can do whatever they please.


The facts be damned let's feel good about ourselves and forget about the dead man.


So very 60s.

Maintaining an unworkable system
Your legal reasoning is impeccable, Mark.

That's why we have to pay for the upkeep of two million people. It's maintenance of a poor system because no one can figure out a better way to deal with those kinds of people.

They have more babies than other people. That's why the problem is getting so much worse now. I first noticed that this segment of society was expanding back around 1975. You'd think people could come up with something better.

Better systems
Penal colonies. Only problem is bleeding hearts like you prefer to maintain systems like this. Hypocrite.

That's a narrow view...
The jury was created as the ultimate check on the power of government. It really is about the ability of the people to restrict the power of the government, against the facts.

What happens when we the legislature passes a corrupt law, which is then signed by the executive and upheld by a meek court? Think it can't happen? What about McCain-Feingold?

Please go read Federalist #83.

180 degrees off course
This is such a crazy comment I wouldn't even know where to begin.

You are totally off base, and have no idea how to understand what I'm saying. I'm saying that the system of incarcerating these people, teaching them nothing and then re-releasing them is bringing our society down. It's dumb and it doesn't work.

Poverty is not an excuse. But poverty is a factor in the lives of the nonfunctioning classes, and leads them back to committing ignorant felonies again and again. No one is taking the bull by the horns and rethinking the problem.

And their problem is our problem.

Facts.. you don't need facts, right?
The information clearly said that the individual charged hadn't done anything but kick the victim, and he admitted that.

While he gave the actual murderer the bat, once it changed hands he had no more control over what was done wiht it than you or I do right now. Culpability has limits.

Anyone who says a 17 year old thinks and acts as an adult obviously can't remember being 17. Besides, we play cute gamnes with age in this country, anyway.

An 18 year old can buy a car in most states and go overseas to fight but can't buy a legal drink necause he's "too young". Balderdash!

That's like saying......
the guillotine is the ultimate safeguard to hangnails. Overblown, nonsensical and lacking any grounding in reality. The people have recourse to the ballot box. They have other means of redress but how exactly does jury nullification work except in specific limited cases. If a DA misuses his power there are better methods than to demonstrate a contempt of the law imitating the acrtions of our judiciary or Supreme Court.


Please, if you want to get up on your soap box try using a better example. And change the Che T shirt.

Wow such ignorance is usually found only in academia!
Poverty is an excuse for what pray tell?

Well isn't India or Haiti just one giant thieves den?

Why wasn't Depression America just awash in crime?

Whenever says someone else's problem is yours, hold onto your qwallet, you'll find your money is really theirs.


Such logic. One just doesn't hear such claptrap outside of academia. Exactly what happened to you that made you such a sensitive panty waist? Were you abused as a child, oops, but then according to you your problem is really our problem. Ah, I have a problem paying for my 140 million yatch, so my problem being yours and all please send me your credit card identification information immediately.

What a fine legal mind!
Yeah how could anyone think that kicking anyone in the head might have consequences. Guess your mom taught you to do it to all your friends?

Who are we to think a kid who carried a bat around with him (that had been altered) was anything other than a choir boy. I mean he was just looking for a pickup baseball game wasn't he? Thats why I love seeing gangs in subways with baseball bats I know they are just looking for a pickup game. Culpability has its limits yeah if one has no moral compass and believes no one has resonsibility for their actions.

Hmmm why not 16, or 18, or 23. When someone has your mindset you're never responsibile for your actions. I'm sure all the readers here believe you'd have exactly the same opinion if the dead boy was your son. But lets not use standards shall we, especially when we can depend on an appeal to irresponsibility and reckless abandon in the persuit of random acts of mindless violence. So impressive and logical that one strains to think of wa way to refute it.


To sum up the power of your reason and logic one only need read your final argument/statement to realize that we are dealing with a mind that lacks the maturity to grasp both the moral and legal issues involved; has no experience on which to guage the issues; and lacks the education to understand both evidence and how the law works.


Making one feel good about oneself is so sixties, it is neither the law nor justice. Grow up.

I'm just repeating Hamilton
This is the way the system was designed from the beginning. Go read the Federalist Papers, particularly #83 - written by Alexander Hamilton. If you don't like it, your beef is with Hamilton, and Madison.

Insults are the last resort...
This fine legal mind has probably arrested and jailed more people than you, as well as spent my share of time justifying those same actions.

If I had based my arrests on the same assumptions you do, I'd have wound up both criminally and civily liable. Carrying a bat doesn;t mean you're going to use it in a crime. there has to be more.

You make some assumptions about my experience, education and maturity without anything to support them other than your blather.

I have 30+ years of law enforcement experience, a Master's and a law degree. I have never had a case thrown out, nor have I been successfully challenged on my probable cause for any arrest I ever made. Having exercised the discretion granted any law enforcement officer for those many years, I'd put my knowledge and experience against your big mouth any day and twice on Sunday.

Laws are not always moral, just as morals are not always legally based.

Speaking of the sixties, I did grow up then.

Blame
Your response reveals the workings of a profoundly stuck mind.

There are no excuses. Excuses are unproductive. I went to some pains to tell you that poverty is not an excuse. It's just a word we put to a set of conditions.

Your peurile insults don't really help with the process of arriving at statements we can all agree on. And without that, there's little need for a forum.

I will maintain that "their" problem is "our" problem because the society that you and I pay taxes for the maintenance of has to use inordinate amounts of its time, attention and funds to address the issues of crime. And we're not doing such an effective job, in that enforcement, jurisprudence and incarceration are all running flat out, with every facet of the system threatening to be swamped with fresh incoming felons.

If you disagree with me you implicitly favor the current mess. If you would like to see constructive approaches toward reducing the incidence of crime, then you in part at least agree with me.

You choose.

Profoundly stuck on stupid
A review of your comments demonstrates who is stuck on stupid. An inordinate amount of money is spent on criminals because of bleeding hearts who are against the death penalty, insist on expensive facuilities, drag out sentencing through incredibly long trials and appeals processes.

How can we shorter it.

1. Appeals must be made within a year of sentencing.
2. Employ fixed sentences for crimes with options to reduce years served through payment of fines.

3. Eliminate guards, facilitiies. etc through use of penal colonies. Use Guam and dump all prisoners there. If they survive their sentence they can be taken off.

4. Brand all felons so they are immeidately recognized as felons. Third such conviction sends them to penal colony for life.

Now watch as we hear all the bleeding heart excuses for the poor criminals. Its also instructive how you seek to place words in other people's mouths, a favorite technique of failed Lefties everywhere.

Besides being a New Orleans Police Commissioner what have you to say for yourself?
Pile it on higher ace. I showed your comment to show detective pals of mine. They were rolling on the floor. I spoke with a friend who spent over thirty years as an asst DA in a major city and he stated that 95% of all cases brought up for trial are so guilty that their defense lawyers couldn't wrangle a plea bargain.

Don't make us laugh when you say such things and make such claims. I am also the Emperor of the Holy Roman Empire, heir to the fortune of the Knights Templar, Field Marshall of the Imperial German Army, spent forty years as the dean of Perdue law school. And its all as valid as your ravings except I don't have the gall to claim such BS nor have the nerve to demonstrate such ignorance.


Well of course you grew up in the sixties and still have your pony tail. How very Brokenback.

Now does that sound like a good idea to you?
I gotta hand it to you. When you can't get your way don't seek to change the laws; don't seek to unseat lawmakersw; just resort to tactics that any communists would smiling approve of.


You got me.

"What law did the prosecution 'abuse' in this case?
I'll try to put words in Prof. Kling's mouth, and I hope I do him justice.

He says that reciting the Miranda rights to a 17-year-old in this situation, and then proceeding to extract a confession from him under pretenses that his declarations will serve only in his capacity as a witness, is tantamount to deceiving the defendant. Prof. Kling implies that the defendant did not realize he was going to be emprisoned and accused, if I understand correctly; and that the prosecution intentionally took advantage of this youth's naivete by NOT making it clear to him that he was indeed a defendant and that his words would be used against him, and this in spite of the fact that they recited the Miranda rights, the meaning of which the defendant didn't grasp, according to the Prof. The Professor further cites rules that state there must be clear evidence the confession was not coerced, and thus because of the above-described deception, or lack of due diligence if you will on the part of the police, the Professor felt that there was coercion. I get his point, but of course I wasn't there to corroborate his observation of the events and of the respective parties' intentions and understandings or lack of same.

You've got it all figured out
Your proposed improvements in the system would make things worse. For instance mandatory minimum sentencing has been such a disaster those states that have passed such laws have their prisons stuffed with nonviolent, low level drug dealers serving life sentences. And we know that extremely long sentences don't work in terms of rehabilitation. All they do is waste life and spend vast gobs of public money.

There are people who will believe in the deterrent effect of ugly, disproportionate sentencing. I assume you are one of them. A mountain of onservation shows that there is no deterrent effect. You're dealing with a subset of the population that is unable to take costructive action with their own lives. That is, without intervention they continue to do what they do until caught.

I love your idea about branding felons so they'll carry The Mark for life. This precludes their ever becoming a legitimate contributor to society. Which means you might as well keep them in for life. If they are ever released they'll have to commit more crimes to survive. Duh.

Ditto your idea that felons can buy their way out. In the first place, crime is a pastime of the poor. White collar crimes are performed by rich folks. So in your scheme a successful white collar crook could buy his way out and continue doing business. He could just cut the court in on the profits. Right?

You didn't even read my response. There are no excuses. To place blame or make an excuse does nothing. You have to examine the behavior and contrive a solution if you're going to change anything. All excuses do is make dimwits angry.

The reality of trial and sentencing in almost every case is not a long, drawn out appeals process. That's on TV, or in death penalty cases. The reality is most often a rural court house where the accused is not too bright, his lawyer's not too bright, the DA's not too bright and the judge is not too bright. The case shouldn't even be there, except the local police couldn't obtain a plea bargain. So everyone's in a bad mood.

The jury gets confusing and contradictory instructions, and has to fall back on instinct. The guy looks like he must have done something (the police wouldn't have picked him up if he weren't guilty of SOMEthing) so they find him guilty. That's it. usually takes about two days.

What does age have to do with it?
I will be willing to bet most 12 year old know what it means to have a Miranda read too them. After all how many TV shows show this to us?

But the issue when does age come into play anyway? I have seen 10-12 year olds that know what is going on in the world and I have seen 30 year olds that don't have a real clue. We put way to much weight on physical age with very little regard for mental development.

Look at our system:
16 Legal to drive (mostly)
16/18 Legal to be tried as adult
18 Legal to vote
18 Legal to join the military
18/21 Legal to smoke
21 Legal to drink

Think about it. You could have gone to driven a car, gone to war, voted and be put in prison for years all before you can take a drink?

If we are going to put an age limit on "being and adult" it should be level across the board for everything. The issue with doing this is mental maturity level. What we need is some kind of test we can give people to determine their mental “age” and then say they are an adult and will be treated as an adult in all aspects.

(Only problem with this is I bet we would have a lot of 20+ people around still being legal minors.)




Age
You have a point about Miranda being familiar to most people, but I think the Professor's implication is that he got the impression from the actual video that the police deceived the man one way or another. (His age doesn't matter.) They made him think he would only be a witness, not a defendant. That is the important point. I think it is the deception that he is objecting to, not the age of the defendant. The age is irrelevant, as you point out.

As I predicted we're treated to bleeding heartism galore..
What a fiddle player! My heart bleeds for the poor accused. Of course they're poor and dull. I mean whoever heard of an intelligent, rich thief, liar, crook.

Hillary and Bill for example.


Thanks for fufilling my prediction. Admit it you believe that no one ever commits a crime; that everyone at heart is a well mreaning choirboy; that you don't believe there are evil people.


Go for it. I love to hear all the excuses from a goody twoshoes. When do we get to sing Kumbyiya?

95% ?
Most cases never reach trial. Most are plea bargained. And many times guilt has little, if anything, to do with it. There are too many cases of defendants who copped a plea because it was easier than waiting for a trial to occur.

Think about this defendant. If he finally gets a trial and is found guilty, he'll probably have alrerady served enough time awaiting trial to be released immediately, if not sooner.

So far as your "pals" go. I know what I have done and what I know. I bet you've never been even close to any part of law enforcement except watching "COPS" on TV. Just another wannabe.



Pathetic
The facts hurt don't they. Unfortunately most people don't wait enough time in jail to substitute for a plea bargain if we're talking felonies but you claim to be a professional. Yeah, what a laugh. I know what my experience is and anyone who has any friends who are in law enforcement can ascertain quickly how bogus you are.

Yeah innocent people plead guilty all the time. Anyone who knows how the justice system knows that plea bargains are the result of priorities to get through the hoard of criminals who need to be put away. Only the truly guilty and truly serious go to trial.

But as your comments reveal the closest you've ever been to law enforcement is on the ACLU.


Pathetic.

Young thugs
When I was in junior high, and high school, I was the play-toy for the kind of kid that would carry a bat.

Did the SOB carry a bat? Did he allow it to be used, in the manner for which he carried it? Then he was guilty, guilty, guilty of the consequences.

No sane defense attorney would let me on a jury in a case like this.

Ellen Kuhfeld

Troll
I realy wonder about you dude. Sometimes smart, sometimes just a troll.

Having fun?

Troll killer
Just hope you never have to sit on a jury with people who think as you do or better yet hope youre never be judged by a jury that employs such flexible standards.

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