Early Colorado Justice and the Straying Jury
| Publication year | 2010 |
| Pages | 63 |
| Citation | Vol. 39 No. 1 Pg. 63 |
2010, January, Pg. 63. Early Colorado Justice and the Straying Jury
January 2010
Vol. 39, No. 1 [Page 63]
About the Author
Frank Gibbard is a staff attorney with the Tenth Circuit Court of Appeals and Secretary of the Tenth Circuit Historical Society-(303) 844-5306, frank_gibbard@ca10.uscourts.gov. The views expressed are those of the author and not of the Tenth Circuit or its judges. The author is grateful for the research assistance of Dan Cordova and Lynn Christian of the Colorado Supreme Court Law Library. Readers are encouraged to contact Frank Gibbard with topic suggestions or to volunteer to write Historical Perspective articles.
Common Law jurisdictions pay considerable reverence to the concept of trial by jury. This being the case, it is interesting to notice that courts have not always treated jurors with much respect. In earlier centuries, they may have been hurried into reaching a verdict, or punished (by the notorious "Star Chamber," for example) for reaching the "wrong" verdict.(fn1) Deprived during their deliberations of civilized comforts and even of the necessities of life, it is probable that many jurors experienced jury service more as a trying discomfort than as an uplifting exercise in citizenship.
The Case of William Penn
One well-known example of juror mistreatment is the case of William Penn. In late 17th century London, Penn, a Quaker leader, was arrested for seditious assembly after he preached a sermon unsanctioned by the Church of England. For this "crime," he faced the death penalty. An English judge of the Old Bailey ordered the jurors assigned to his trial confined in a room without food, water, heat, tobacco, or toilet facilities until they reached the "correct" verdict: guilty. Despite increasingly filthy conditions, the jury somehow held out for days. Although it faced tremendous pressure from the presiding judge, the jury refused to convict Penn, and ultimately acquitted him. The furious judge fined the jurors, and when they refused to pay the fine, he sent them to prison for contempt of court. After spending months in jail, they were released when an English appellate court finally issued a writ of habeas corpus.(fn2)
William Penn's case was instrumental in establishing the right of a jury to reach a just and independent verdict.(fn3) However, the jurors in the Penn case were not treated much worse than other English juries that served after them. In the Commentaries on the Laws of England, Sir William Blackstone affirms that jurors were routinely "kept without meat, drink, fire, or candle, unless by permission of the judge, until they were all unanimously agreed."(fn4) Worse, if the jurors "did not agree in their verdict before the judges [were] about to leave the town . . . the judges [were] not bound to wait for them, but [could] carry them around the circuit from town to town in a cart."(fn5)
Harsh Conditions Continue for Jurors
William Penn later left England to found a colony that became the state of Pennsylvania, part of the new American experiment in tolerance and freedom. However, two centuries later, the treatment of jurors still had not much improved in some American jurisdictions. Jurors often were kept in very uncomfortable conditions, deprived of food, detained behind locked doors, and even required to sleep on the floor.(fn6) As late as 1891, the Colorado statutes affirmatively prescribed the following rather Spartan environment for jurors during their deliberations in criminal cases:
When the jury shall retire to consider their verdict in any criminal case, a constable or other officer shall be sworn or affirmed to attend the jury to some private and convenient place, and to the best of his ability keep them together without meat or drink, water excepted, unless by leave of the court, until they shall have agreed upon a verdict[.](fn7)
Bailiffs were charged with enforcing these restrictions, under penalty of fine or imprisonment, and under oath.(fn8) However, these rather puritanical prescriptions of Colorado law, as well as their more general duty to help keep jurors sober during trial, sometimes were dishonored by lax or careless bailiffs. Those charged with securing the jury sometimes allowed jurors to eat, drink, and make merry inappropriately during both the trial and their deliberations, as well as to wander off from the assigned jury room.
Colorado's Straying Jurors
Colorado appellate judges often were asked to decide whether a verdict reached by such dissipated jurors could be upheld. Challenges to...
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