Issue: April, 2007
Author: Richard H. Honaker
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Perspectives on the Jury System
Edward Bushel, Thomas Veer, Charles Milson, Gregory Walklet, John Bailey, John Hammond, Henry Henley, William Lever, James Damask, Henry Michel, Wil Plumsted, and John Brightman. Twelve men mostly forgotten over the course of history. Twelve men who knew their rights, who loved liberty, and who refused to compromise their consciences. Twelve brave jurors.
In London in 1670, two Quakers–William Mead and William Penn–faced imprisonment for the crime of preaching to an illegal assembly on a city street. The assembly allegedly was “illegal” because it was a non-Anglican assembly. After hearing the evidence, the jury returned a verdict of not guilty, finding that Penn and Mead had spoken on a city street, but not to an illegal assembly. The verdict was utterly unsatisfactory to the trial judge. “You had as good said nothing,” he charged, and ordered the jury confined to “the hole” in Newgate Prison, and its foreman, Edward Bushel, held without food or water until a “proper verdict” was rendered.
Brought back before the court, the jury again returned a not guilty verdict. The judge exploded: “You shall be locked up without meat, drink, fire, and tobacco. You shall not think thus to abuse the court; we will have a verdict, by the help of God, or you shall starve for it."
When, for the third time, these 12 brave jurors returned a not guilty verdict, the judge threatened to cut the foreman’s throat if he would not return “a positive verdict,” and sent the jury back into “the hole”–this time without the decency of providing them a chamber pot.
Over the course of four days in September 1670, this jury returned yet a fourth time, and then a fifth, but never shrinking from the verdict it believed was right. Finally, the judge imposed a fine of 40 shillings on each juror, and also on Mead and Penn (for not removing their hats in the courtroom), and imprisoned them all until the fines were paid.
Edward Bushel refused to pay his fine, but was released on a writ of habeas corpus in a decision issued by the Lord Chief Justice of London, Sir John Vaughn, that henceforth established the independence and security of English jurors.
Shortly afterward, William Penn migrated to America, planting the colony of Pennsylvania and the city of Philadelphia, from which, within less than a century, American patriots would announce to the world the Declaration of Independence, condemning George III, among other things, for “depriving us, in many cases, of the benefits of trial by jury.”
In Taylor v. Louisiana, 419 U.S. 522, 530 (1975), Justice Byron White wrote, “The purpose of a jury is to guard against the exercise of arbitrary power–to make available the common sense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over-conditioned or biased response of a judge.”
In his exposition on the Constitution of the United States, Justice Joseph Story observed that juries stand not only between the power of government and the citizen accused, but also between the accused and the tides of popular sentiment. “The great object of a trial by jury, in criminal cases, is to guard against a spirit of oppression and tyranny on the part of rulers, and against a spirit of violence and vindictiveness on the part of the people,” Story wrote. “Indeed, it is often more difficult to guard against the latter, than the former.”
Legitimate governments exist to secure the lives, liberty, and property of their citizens. While criminal juries play a major role in issues of life and liberty, civil jurors are often faced with property questions. For when one party seeks money damages from another, the jury must determine whether or not such a transfer of private property is fair, just, and required by the evidence and the law.
Tort cases are permeated with issues of reasonableness which are especially suited for trial by jury. If negligence is “the failure to exercise that degree of care that a reasonable and prudent person would have exercised under the same or similar circumstances,” there can be no better measure of reasonableness than the reasoned judgment of a cross-section of citizens drawn from the community. And a jury, armed with common sense, experience, and a sense of civic duty, truly can be “the conscience of the community” in evaluating the conduct of individual and corporate citizens in civil cases. Juries, even in small communities, have the power to impact social and economic practices and trends on a national scale.
If these things are so–if trial by jury in both criminal and civil cases is essential to preserving the liberties of a free people--then why is it that so many people persist in trying to avoid jury duty? Why is it that bills are introduced in legislatures to exempt more and more categories of citizens from serving on juries? Why is it that persons summoned for jury duty in some Wyoming courts simply fail to show up?
Certainly people can be compelled to serve on juries. A judge can always send the sheriff out to round up those who fail to appear for jury duty. But forcing people to be free, as in Rousseau’s social contract, cannot be a lasting solution to a troubling problem.
No 12 jurors compelled to serve ever would have had the courage, conviction, and steadfastness of the jurors led by Edward Bushel. They readily would have cast off the inconveniences of jury duty–not to speak of the deprivations of being held in a dark and filthy prison cell without food or water–and promptly returned the guilty verdict that the court demanded. In doing so, they would have convicted two innocent men. Jurors compelled to serve would have sacrificed liberty for convenience.
These are fearful thoughts indeed, recalling Judge Learned Hand’s famous statement that “liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.”
The good news is that the exercise of liberty is the surest path toward its preservation. Most people who serve on juries come away with positive impressions of the judicial system, and with a realization that they played an important role in it. The members of one Wyoming jury even re-assembled for “reunions” for a number of years after the verdict they had returned. And those who have served on juries are sometimes willing to share their experiences in civic and educational settings.
As we show our appreciation to those who have answered the call to serve on juries, we have a duty to renew our commitment to educating the public about the important role that trial by jury plays in preserving the liberties of a free people. We should encourage people to serve on juries. We should respond when the jury system is unfairly “bashed.” We should organize and participate in public education programs about the jury system, including demonstrations and mock trials. By doing some of these things, and more, we engage in the active vigilance that Jefferson said “is the price of liberty.”
Richard H. Honaker is a past president of the Wyoming State Bar, Wyoming Trial Lawyers Association, and Wyoming chapter of the American Board of Trial Advocates. He has practiced law for 31 years and has tried many criminal and civil cases before Wyoming state and federal court juries. He is also a Presidential nominee for the U.S. District Court
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