Here's something I have never understood. In a criminal case, the government has the burden of proof. It must prove its case beyond a reasonable doubt. To do that, all jurors must agree. In other words, it takes a unanimous verdict to convict a man. Anything less amounts to a failure on the part of the government. The defendant need not prove anything, we say. So why is it that when the government fails to persuade all of the jurors of a man's guilt that he is not acquitted? Failure is failure, correct?
I was reminded of this gnawing sense of absurdity while reading about the Harold C. Turner case. He was tried three times for threatening three federal judges. Jurors were unable to reach a verdict in the first two trials. But the third time was a charm for the government. It wasn't so charming for Mr. Turner, who now faces up to ten years in federal prison.
Turner was displeased when three judges of the United States Court of Appeals for the Seventh Circuit upheld a ban on handguns. He wrote on a blog page that "[i]f they are allowed to get away with this by surviving, other judges will act the same way." The judges "deserve to be killed," he went on to say. He also posted photos of the judges, together with their office addresses. Of course, the Supreme Court later reversed the Seventh Circuit, overturning the Chicago hand-gun ban at issue.
This is menacing stuff.
The first jury to hear the case rejected the govnerment's case by a vote of nine to three, with the majority voting to acquit Mr. Turner, who argued that he had not issued a directive, but had, instead, merely engaged in critical speech. The government did not call the three judges as witnesses in the first trial. The government failed to prove its case.
At the next trial, the judges, Richard Posner, Frank Easterbrook and William Bauer, did take the stand. But still, jurors could not agree, although it is unclear what the vote was in that case. Call it strike two for the government.
But Mr. Turner's luck ran out at the third trial last week. Jurors returned a quick verdict against the white supremacist. All 12 jurors agreed the government had proven its case.
Threatening prosecutions are unusual when the threat is not conveyed to the target. In this case, it is unclear that three busy judges ever really took the time to read Mr. Turner. Quite frankly, I suspect the tenor and content of his prose did not exactly make the judicial radar in Chicago.
But it did catch the eye of prosecutors, who dug in three times to make their point.
Protecting robust speech is important, and I concede that Mr. Turner's speech is troubling. But is it threatening when a blogger pops off? Or is it more threatening when the government prosecutes a man for engaging in mencacing speech absent any evidence that the speech was uttered in the presence of the intended target?
From time to time folks threaten me. It goes with the turf in a criminal law practice. I don't worry much about the folks who talk smack, especially those who do so by way of blogs or other public venues. The ones you worry about are the silent types. Those are the bullets you'll never see coming.
But really, why wasn't Mr. Turner released after the first trial, the one in which the government failed to prove its case by the requisite standard? Don't tell me the lack of a unanimous verdict resulted in no verdict. If it takes a unanimous jury to yield a not-guilty verdict, then it is the case that we are requiring the defendant to prove something: namely, that he is not guilty. The government's failure ought to be enough to render a not guilty verdict.