Declaration of Independence

The Sixth Amendment to the U.S. Constitution provides:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been Committed ….”

Our Declaration of Independence raised these issues and complained of King George III:

“For depriving us in many cases, of the benefits of trial by Jury; (and) For transporting us beyond Seas to be tried for pretended offenses.”

The Book of Matthew uses the example of separating edible wheat from its husks as an analogy about dividing the good from the bad. In our legal system we almost always assign this task to judges with probably less than 3% of criminal cases being determined by a jury. The recent case involving the death of George Floyd, Jr. and the conviction of Derek Chauvin is one of those extremely rare jury events. However, this is not a column about that media saturated matter that took place in Hennepin County, Minnesota. I do predict that two of the issues raised by Chauvin when he appeals the guilty verdicts will be whether trial judge Peter Cahill should have granted Chauvin’s motions to change the venue of the trial and to sequester the jury. Those specific assigned errors will fall to the Minnesota state appellate judges and maybe work their way over to the federal judiciary before the saga crawls to an unsatisfactory halt. Shakespeare was right about the Law’s Delay. George Floyd, Jr’s. death was May 25, 2020.

What this week’s column is about is the American legal system’s mental gymnastics involving the relative imbalance between trial judges’ assumed ability to be objective versus that of jurors. Perhaps a few specific examples might help define the dichotomy. During my forty years as a trial judge in a small, rural county with only two judges I was faced countless times with having to process cases about which I had personal knowledge. For example, a crime might be reported then the police or sheriff’s department would present me with a sworn affidavit in support of a request to arrest someone and/or to search their home. A great amount of detail about the alleged crime and the suspect would be laid out before me. Then later I would sit as judge on the case.

Another fairly frequent circumstance might be I would know both the named victim and the defendant. I would sit on the case. In fact, I have remained as the deciding judge on countless cases at the request of victims, defendants and their legal representatives because they all wanted the cases resolved without delay and excessive cost and because everyone, including me, assumed I could separate the wheat from the chaff and both follow the law and be fair and objective. If I could do so, so can jurors. Black robes are a symbol not an inoculation against biased decision making. Facts are what matter, not irrelevancies unconnected to the case at hand.

There are cases where judges should not serve and where the pool from which jurors are selected should be changed. But usually judges and other people have the ability to take on the sacred mantle of administering justice whether they wear a black robe or not. Our legal system should afford to the citizenry that pays for it the same respect we assume for judges who are paid by it.

The delay, expense and great inconvenience caused by changes of venue and juror sequestration should be a last resort. This was true when we gained our independence and communication was untimely via printing presses and quill pens. How much rarer should such dire remedies be when finding a venue and jurors who have no knowledge of a case would require a trial beyond Mars?