Mar
28

Why Judges and Prosecutors Fear The Truth

"And you shall know the truth, and the truth shall make you free," Jesus is reported to have said. Somehow, I don’t think he foresaw just how much a threat the truth could be in the courtrooms of the United States. Why knowing the truth just got one juror fined $500 in the New Jersey courtroom of Superior Court Judge Peter E. Doyne.

Doyne presided over a drug prosecution. The defendant was accused of selling 1,500 Ectasy pills to an undercover law enforcement officer. The prosecution called its witnesses, and demanded that jurors hold the defendant accountable for his actions. The judge read jurors the law, and forbade them from doing any research of their own on what the law might require in the case. The gears of justice were turning, swifly, inexorably.

But the jury’s foreman, Daniel M. Kaminsky, wondered what would happen to the defendant if he were, in fact, convicted. He went online and did a little digging. What he saw shocked him. The defendant faced a mandatory minimum prison term of at least 10 years if convicted. Kaminsky was so troubled by this he did not vote to convict the defendant, and the case mas mistried.

Most jurisdictions in the United States, and that includes the federal courts, deprive jurors of any information about sentencing consequences of a conviction. The sole exception to that general rule in every jurisdiction is in a case in which the state seeks death. In that case, jurors must decide whether a defendant faces death. Those jurors who regard the death penalty as wrong are simple prohibited from serving on a jury. The state makes sure those with convictions about the state’s conduct stay home.

The choreography of justice in a non-death penalty case then looks something like this: A prosecutor selects charges to pursue. He or she puts on evidence that the defendant committed the crime. The judge is powerless to change the charges if a prosecutor has over-charged, or if the results of a sentence might be unjust. The prosecutor then stands in the well of the court in the name of the state, to wit, the very people from whom the jurors are selected. He or she demands that the defendant be held accountable and convicted. The judge then tells jurors "Don’t worry; be happy" – the judge will determine the punishment.

This is gibberish. We want a defendant held accountable for his acts, but the very people in whose name a man or woman is prosecuted are denied any information about what happened if they convict. Accountability is a one-way street. On the neck of the defendant falls the full weight of the law; jurors, in whose name the law is enforced, are kept blind, deaf and dumb; they are denied the right to hold the prosecutor accountable for the decisions he or she makes in their name by rejecting the state’s case because the punishment does not fit the crime.

Judge Doyne found the jury foreman who wanted to know what he was doing in criminal contempt. He spared Kaminsky a term in jail – he could have put him away for six months. But he fined Kaminsky $500. The truth cost Kaminsky a fine, even if it did abort a trial and a conviction of a man charged with a crime.

Both prosecutors and judges fear fully informed jurors. The argument against jury nullification holds that legislators make the law; judges interpret the law; prosecutors enforce it; defense lawyers make sure the law is respected. All this is done in the name of the people. Yet the professionals play their role steeped in deceit and half-truths. I once had a juror contact me after reading about the sentence the court imposed on a client of mine after this juror and eleven others had found the 19-year-old guilt of shooting another man-child in the back of the head one Halloween night, killing him instantaneously. (There were eyewitnesses and my client had made inculpatory statements; the juror told me she could not disregard the testimony.) "I wish I had known he was looking at 45 years," the juror told me. She felt deceived, as if justice were only half done in that case. Little did she know, the sentence was lenient, as murders go. The judge could have sentenced the boy to 60 years.

Trial is a high-stakes game. Nowhere is this as true than in the consideration of a serious crime. Just how the state, that grand legal fiction acting through its servants, those feet-of-clay and all-too-human prosecutors, can demand of jurors that they hold a defendant accountable without telling jurors what accountability means is a mystery to me. Let me go one step further, it is a form of deceit that I suspect troubles many jurors.

Kaminsky will pay a $500 fine for wanting to know the truth. The state will no doubt try the drug case again, this time hoping for a more supine and obedient jury. I can’t help but wonder whether our courts, and our society, would be better served if more folks had the curiosity, courage and moral gumption of Daniel Kaminsky. Perhaps if we knew the truth more often, we would not be the nation that boasts of being the land of the free while housing the highest per capita rate of incarceration of any nation on earth.

Looking at the mess in the nation’s criminal court, I am reminded of another report about Jesus. He beheld Lazarus dead in his tomb, and considered the lack of faith among those with whom he stood. "Jesus wept," the gospel reports. He might weep if he sat on a jury, too.

Comments (4)
Posted on March 30, 2012 at 7:11 am by JUST ME!
For they do not know.
And Jesus cried out and said..."forgive them father for they do not know the truth" This Pretty much sums it up Norm.

Posted on March 29, 2012 at 8:50 am by Specter
And What About...
What about those times when the State - in the form of an ill-equipped judge and an unethical prosecutor - step over the boundary into cheating the system to get a conviction? And then use every trick in the book to cover up their misdeeds. That kind of behavior is quickly buried in the prosecutorial community and no one is ever held accountable. Shouldn't the public, including jurors have access to that type of information?

Posted on March 28, 2012 at 1:27 pm by ye of little faith
p & j fearing the truth
having been anointed by the "system", I sincerely wish this was the only deception in play.

Posted on March 28, 2012 at 9:46 am by william doriss
Fearing the Truthy
The criminal injustice system has turned into a grotesque parody of what the Founding Fathers had in mind. The good news: comatose, Rip van Winkle Amerikans are starting to wake up to the realities of the giant Prison-Industrial Ponzi schemes operated by the states. Eric Holder's Justice Dept. is inadequate for the task of investigating these official abuses by the various states. CT is one of the worst.
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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