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Monday, December 18, 2006
Don’t give holdout juror so much clout
The Atlanta Journal-Constitution
During the trial of two brothers accused of brutalizing and killing a puppy, when the judge allowed a puppy stand-in — which was promptly adopted, establishing conclusively its emotional appeal — the handwriting was on the wall.
But events, in the case of a juror reported by The Atlanta Journal-Constitution’s D. L. Bennett to have “simply refused to consider whether two brothers were guilty of hogtying a small puppy with duct tape and stuffing it live inside a searing hot gas oven,” rendered the judge’s decision moot.
Fulton District Attorney Paul Howard was fit to be hogtied himself. “When they won’t even deliberate, it’s insane.”
Once in the jury room, the holdout juror, according to others, declared an immediate unwillingness to convict, and thereafter she refused to budge.
Howard’s response — one I support — was to announce an intention to ask the General Assembly to pass a law, similar to one in New York, that will allow trial judges to replace jurors who refuse to deliberate. It’s an idea whose time has come. And I’d change the law, too, to permit less-than- unanimous decisions, 11-1 or 10-2.
The Georgia Constitution and U.S. Constitution and the legal code are living documents to the extent that living people properly change them to address the evolution of the civic compact. That compact once held that the will of the individual was subservient to the common good and that, when called upon to perform a patriotic or civic duty, we willingly put aside self-interest and desire. We became, in that instance, a cog in the machine of democracy, an instrument of its promise of freedom and justice.
That is often not the world we live in anymore. Clearly there are among us individuals who think that it’s not really stealing if you’re taking from a corporation or government; or it’s not really lying if dishonesty gets you into a position to perform a greater good, as the individual narcissistically interprets it. And there are individuals who believe, too, that rudeness and incivility in public places are justified if, as the individual narcissistically views it, the “cause” is just.
Former Deputy Secretary of Defense Paul Wolfowitz came to Atlanta just over a week ago to speak in his capacity as president of the World Bank on America’s responsibility toward African poverty. His speech at the Ahavath Achim Synagogue on Peachtree Battle was interrupted three times by antiwar protesters who accused him of war crimes for his service to the Bush administration.
There’s a measure of dishonesty in accepting an invitation to hear — or in the case of a juror, to fairly and impartially determine guilt or innocence — and then, once through the door, to pursue a personal agenda.
“I think they get the notion for some reason that it is unfair,” Howard said Monday. “Some people just believe that it is unfair to sentence someone to jail for killing [an animal], and rather than disclose that, they will keep it a secret. And once they get on the jury, they won’t make a decision at all. It’s often based on some past experience in their life and once on the jury, rather than deliberate, they sit in a corner and won’t talk about it at all.
“I really think it has to do with this notion today that it’s all right to be different and not to have to entertain a discussion with anyone else about it,” Howard added. “It’s the idea that my ideas might be extreme or foreign, but that’s OK, and the very fact that the majority may disagree is something that I don’t have to take into account.”
The living nature of government is its capacity, through elected officials, to react to changed cultures — the heart of the upcoming debate on Sunday liquor sales, for example. Laws that existed for one era and for a people who shared certain values are routinely changed when the underlying values change. Sad though it be, people do lie to get on juries, resulting in either lighter sentences, hung juries or acquittals that are not warranted by the facts.
In the case of the brothers, the vote was 11-1 for conviction on most counts. Because of the holdout juror, the county will have it to do again next month, at considerable cost to the county and to others awaiting justice.
Judges now can replace jurors who are ill or incapacitated. To that, “I would add a phrase like ‘refuses to deliberate,’” said Howard.
Face it. The world is changed. People lie their way onto juries, convinced that their view of justice outweighs all others. The solution? Change the law as Howard argues.
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Reparations lose
The Atlanta Journal-Constitution
The notion surfaces periodically, as it did in a federal appeals court in Chicago last week, that reparations should be paid for slavery. At issue in the 7th U.S. Circuit Court of Appeals was whether 17 of the nation’s largest insurers and banks should be made to pay because their predecessors made loans to slave owners or, in some instances, profited by insuring and transporting slaves. A federal judge threw out the case last summer, declaring that it’s an issue to be decided by the executive or legislative branch.
In a decision handed down last week, a three-judge panel mostly agreed with the district court in rejecting reparations claims. “If you think you’ve been wronged, it shouldn’t take 100 years to investigate the conduct of Aetna, Lehman Brothers and the like, ” said Appeals Court Judge Richard Posner, naming two of the 17 companies, when the appeal was heard in September. “There are a lot of people living today whose parents were wealthy in the 19th Century who have nothing.” Plaintiffs wanted the companies to pay into a court-supervised fund that would benefit black communities.
Posner wrote the decision that was handed down last week. If claims could be filed on behalf of long-dead ancestors, “statutes of limitations would be toothless,” he wrote. “A person whose ancestor had been wronged a thousand yuears ago could sue on the ground that it was a continuing wrong and he is one of the victims.” The “casual chain is too long and has too many weak links for a court to be able to find that the defendants’ conduct harmed the plaintiffs at all, let alone in an amount that could be estimated without the wildest speculation.”
The judge noted, too, that agreeing to the claim could open the door to other historical claims — descendents of a Union solider, for example, who was killed by a gun manufactured elsewhere and sold to the Confederacy. The panel did keep alive one slim opening — that a company could be sued if it lied about past links to slavery to avoid losing customers.
Reparations is a notion whose time has come and gone. No living American owned slaves. No living American was. What exactly is the purpose of reparations — or apologies, for that matter, given by people who had no participation in the wrong to people, including recent immigrants, who did not suffer the injustice?
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