Wednesday, June 16

My Persistent And Impossible Dilemma

The following is a true story.  It is a story that has been haunting me for the past 20-plus years. The reason it has been haunting me is because I may have been inadvertantly complicit in convicting a man of a serious drug charge by denying him the benefit of the principle of the presumptive innocence of a defendant in a criminal trial. I make no judgment as to the man’s actual guilt. That will be as it may. The point, rather, is that, in retrospect, I believe that we, the jury in the trial, followed the letter of what seemed in retrospect to be a very bad law and -- pursuant to that law -- presumed the man to be guilty, and that this presumption seemed to be “hard coded” into the relevant drug-possession law. 

At the time, we believed we acted in good faith, because we believed ourselves to be bound to follow the strict letter of the law as written. The following is the story of how I came to question that assumption, why I began to question it, and what I would do differently if I had it to do over again. But in a deeper sense, I am haunted by the question of whether our reading of that law was correct in terms of its original intention. It is the intent of this “Skeptic’s” column to solicit answers from those with the requisite competence to arrive at such judgments. The following is my story …

"The Jury" by John Morgan

In the early summer of 1994 or 1995 – my memory is unclear as to the exact date – I received a jury summons to be a part of a jury panel, some of whose members would be chosen to serve on a jury (or perhaps the jury panel would be split up into several juries:  again, my memory is unclear) for a criminal trial.  Our particular jury panel convened at the courthouse in downtown Seattle for the process of voir dire (approximately “tell the truth” in Anglo-French):  the examination of potential jurors for a given trial and the winnowing-out of panelists by both prosecution and defense for for-cause and peremptory challenges. At this point, it was revealed that the case at issue involved a criminal charge against the defendant, an African-American of early middle age, for drug possession.

As a part of voir dire, each panelist / candidate juror was asked the questions familiar to anyone who has ever served in a jury, as I had done three times in Wichita, KS, questions like “Do you know the defendant?”, “Do you currently work in law enforcement?”, “What are your feelings toward drug use and legalization?”, etc., etc., etc. One question that, by my memory, everyone was asked was “Can you presume that the defendant is innocent?”  To that latter question, everyone answered “Yes”. At that point, the members of the jury panel had been winnowed down to the requisite twelve, plus a couple of alternates. Accordingly, the presiding judge, whose name I can no longer recall, at that point administered the oath to the jury.  We were officially officers of the court:  the jury of record for the case in question.

What followed was quite routine, what I had come to expect from previous experience serving on juries. The State presented its case in prosecution of the defendant.  The defendant had been pulled over by the police for some minor traffic infraction. In the defendant’s car, police had found in plain sight an amount of a whitish substance, as I recall sealed in a Zip-Loc bag. The substance turned out to be … I do not recall exactly, but not just marijuana or hashish … but some other much more problematic drug, like heroin or meth. (This was in the days before crack cocaine and even more lethal substances made their appearance.) Witnesses were called, questioned, and cross-examined.  Evidence was exhibited. The defense presented its case on behalf of the accused.  Witnesses for the defense were also called, questioned, and cross-examined. Both the State and the defense presented their respective reviews of the case and their respective summations to the jury. All this took a few days, certainly less than a week.

The trial judge then turned the case over to the jury. As part of the procedure for committing the case to the jury for deliberation, the judge briefly reviewed the relevant State statutes. This is the point at which matters became in my mind – and, it would shortly turn out, in the minds of all of my fellow jurors – much more highly problematical. One of the relevant laws the judge reviewed was a Washington State statute concerning the burden of proof in cases of drug possession. The judge read the relevant statute verbatim from a law book. He then paraphrased the law for us, rendering it from “legal-ese” into standard English. (That same day, I looked up the relevant statute and compared it to the judge's paraphrase. The latter seemed, and still seems, a fair restatement of the former:  no language games or semiotic sleight-of-hand.) The following is my paraphrase of the judge’s paraphrase, and, as I recall, an accurate account of the requirements of that State law.

Under the laws of Washington State, in order to be acquitted of a possession charge, anyone found to be in possession of a controlled substance, must prove that she / he did not know of the presence of the substance, and that the substance was not present as a result of the defendant’s action. So, e.g., if, say, heroin were to be found in my car and I am charged with possession, the burden of proof is on me, as a criminal defendant, to prove that (a) I did not place the drug in my car, nor did I render material assistance to whomever did so, and that consequently, (b) the drug was present in my car without my knowledge or consent. I do not now recall the level of required certitude:  beyond a reasonable doubt, or because of “preponderating evidence”, but in the event this was not relevant. In other words, absent proof of knowledge or collusion on my part, the presumption is that I am guilty of possession of a controlled substance, and the only way to refute this presumption of guilt is for me to prove a double negative, i.e., (a) that I did not know, and (b) that I did not conspire. Otherwise, the default verdict is that I am guilty of possession of a controlled substance. To both myself and my fellow jurors, this sounded suspiciously like presumption of guilt, not presumption of innocence.

I remember quite well that the first question each of us jurors asked the others after we retired to the deliberation room was how the requirements of that State statute were consistent with the presumption of innocence we swore to respect and to uphold. It would seem that we had an either / or choice:  (1) adhere to the principle of presumptive innocence of criminal defendants, or (2) follow the relevant law, presume guilt, and convict the defendant of possession. For we all agreed that the defendant had not proven under either criterion that he was not aware of the presence of the substance in his vehicle at the time of his arrest. We asked for clarification on this point, but, for reasons I unfortunately cannot now recall, we never received it. Accordingly, and absent advice to the contrary, we voted to convict.  The judge thanked us and all twelve of us retired to a local watering hole to consult one another and our consciences as to both the legality and the moral propriety of our verdict.

That verdict has haunted me ever since.

To this day I struggle with what we, the jurors, decided. In the wake of that decision, I did a voluminous amount of reading concerning what I soon learned to call “jury nullification”, i.e., the process by which jurors may choose to disregard a law they see as grossly and flagrantly unjust and to render a just verdict in spite of the law and not because of it. I learned that the practice of jury nullification has both a righteous and a pernicious aspect, probably beginning with Bushel’s Case in England in the 1600s and extending down to the case of John Peter Zenger in the Massachusetts of the 1740s. (In the latter case, a Massachusetts jury ignored the law criminalizing “seditious libel” – basically, any criticism of any government action, of which Zenger was “facially” guilty – and voted to acquit Zenger because the law itself was wrong.) I also read John C. Calhoun's pre-Civil-War book Disquisition on Government, wherein Calhoun, locating the source of all sovereignty in the several States, asserts that State legislatures may vote to nullify Federal laws the States regard as unconstitutional, and that such laws are subject to what Calhoun called approval and piecemeal compliance by a "concurrent majority" -- a principle that, had it prevailed, would have spelled doom to the Union, and that actually did spell doom to the Confederacy a decade or so later. (This is obviously too complex a story to even synopsize here. Suffice to say that the North Carolina "nullification crisis" over tariffs in the 1830s almost led President Andrew Jackson to march the Federal Army into North Carolina to dissolve the State legislature and to govern North Carolina directly from Washington, DC. Such are the fruits of nullification run amok. Please pardon the digression ... ) But I also learned that it was quite  common, especially during the days of the Jim Crow South, for all-white juries to nullify by voting to acquit white people who were no less “facially” guilty of killing African-Americans for crimes, real or imagined. So … if I had it to do over again, knowing what I know now, what would I do?

Trial of John Peter Zenger

I think I know. Knowing what I know now and being confronted by the same facts of the case that was tried in the middle 1990s, and being aware of the deep reservations expressed by my fellow jurors concerning the probity of following a law in such deep conflict with the principle of presumptive innocence, I would do the following in that deliberation room:  (a) advise my fellow jurors that there was ample precedent for juries ignoring laws they believed to be "facially" unjust, (b) briefly review abuses of the practice of nullification, and (c) express my own willingness to ignore the law the judge had read and paraphrased to us in the interest of adhering to (what I regarded and still regard) as the higher principle of presumptive innocence of criminal defendants.  I would also say that, in the future, and in the face of similar conflicts, I would do the same – and irrespective of the evidence for or against the guilt of the accused.

Or I suppose there is another alternative, an alternative that avoids the hard choice between the Scylla of slavish compliance and the Charybdis of nullification:  we were misinterpreting the law. I assume good faith on the part of the presiding judge. I believe his reading and paraphrase of the law were faithful to the text.  But perhaps we, the jury, misunderstood the language of the statute, and that, in reality, that language was pristinely consistent with the principle of presumption of innocence. (For one thing, it seemed at the time and still seems strange that at no point in the trial did defense counsel make any attempt to address the issue of his client's knowledge state vis a vis the presence of the drug:  did his client know the white powder in the Zip-Loc bag was there, and did his client place it there? If the jurors' interpretation of the statute is correct, establishing that the defendant did not know the material was there would seem to be critical.) In my more optimistic moments, I allow myself the luxury of believing that this is, in reality, what happened, and that no miscarriage of justice occurred.

Hence the question with which I conclude this column:  Which is the case? Which of us was wrong:  the law or we the jurors?

James R. Cowles

Image credits

Zenger trial ... Martha Lamb ... Public domain
"The Jury" ... John Morgan ... Public domain
Nullification pamphlet ... George Donnelly ... CC BY 2.0
Penn and Mead plaque ... Paul Clarke ... Creative Commons Attribution-Share Alike 2.0 Generic
English common law ... Printer unknown ... Public domain
Mexican firing squad ... Photographer unknown ... Public domain
Judge's gavel ... Chris Potter (Flickr) ... CC BY 2.0

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