Jury Practice in Post-truth America: a Cautionary Note

• Publication year: 2017

Jury Practice in Post-Truth America: A Cautionary Note

Richard A. Harpootlian

Christopher P. Kenney

JURY PRACTICE IN POST-TRUTH AMERICA: A CAUTIONARY NOTE

Richard A. Harpootlian Christopher P. Kenney^*

Trial lawyers and judges like to regale jurors with the fact that the word "verdict" comes from the Latin veredicto, meaning "to speak the truth."¹ When a jury reaches a verdict, it speaks truth by resolving factual disputes between the parties. Did the defendant shoot the victim? Was the plaintiff injured when the contract was breached? Disputed facts are proven or disproven through the presentation of evidence, testimony and tangible objects that make the existence of a fact more or less probable.² This basic formula—evidence proving facts, facts informing truth—is fundamental to our notion of ordered liberty and the constitutional guarantee of a jury trial.

Truth-seekers are a beleaguered lot in the aftermath of the 2016 presidential election, a campaign whose winner was propelled to victory by demagoguery, racism, sexism, and a willful resistance to any fact that challenged these grotesque views. While ambitious public office-seekers have long stretched the truth, Donald Trump's indifference to it altogether confounded political opponents and challenged the fourth estate to reconcile its commitment to objectivity with a documentarian's moral obligation to call a lie a lie.³ There is

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something pernicious about disputing facts by rejecting evidence outright. It threatens clear thinking and poses the ultimate distraction by attacking the predicate to any informed policy debate.⁴ While Hillary Clinton was a predictably flawed candidate,⁵ she marshaled the facts against her general election opponent with lawyerly competence. An alarmingly large electoral plurality did not care. Lawyers and litigants alike should find this result troubling because, far more than the nation's political institutions, the jury system's reliance on evidence-based reasoning is fundamental to its operation and the predictable, orderly administration of justice.

The assault on evidence-based reasoning was forefront in our minds the week after Donald Trump's surprise election victory as we sat in a Richland County, South Carolina courtroom next to Jermaine Davis—a 16-year-old, African-American male charged with murder—and prepared to strike 12 jurors and two alternates to hear evidence the State claimed would prove beyond a reasonable doubt that Jermaine shot and killed a man walking home from a neighborhood convenience store. Since our investigation revealed facts that cast serious doubt on the State's allegations, we believed Jermaine would be exonerated if jurors followed the evidence. As our recent trial work alerted us to the threat posed by evidence-adverse jurors, we endeavored to do what trial counsel must in the current litigation environment: identify and exclude them.

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Jermaine's representation was an unusual one for our office. Jermaine is a ward of the State of South Carolina who had spent the last nine years in the "care" of the State Department of Social Services. Jermaine's childhood was not a happy one as he spent almost a decade being bounced between 15 different foster placements and two group homes. During the summer of 2016, he ran away from the last group home placement in Columbia, South Carolina and had been living on the streets when he was arrested by the Richland County Sheriff's Department and charged in the shooting. When our practice takes a criminal representation, it routinely quotes a six-figure fee. Jermaine fired his public defender and hired our office for five ($5) dollars.

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Jermaine gave the police a written statement denying he shot the victim. They charged him anyway. The State had no DNA, no fingerprints, and no eyewitnesses linking Jermaine to the killing. The only witness was a woman who did not see anything, but heard shots outside her apartment window followed by the revving of a car engine and the squealing of tires. A ballistics report on the bullet retrieved from the victim's chest and another found nearby indicated the murder weapon was likely a semi-automatic pistol, but police found no shell casings at the scene. Nor was the victim robbed of the cash, wallet, or cell phone found in his pockets. This, and other circumstantial evidence, strongly suggested a possible drive-by shooting—a theory inapposite to the State's theory that Jermaine followed the victim from the convenience store and shot him over a brief verbal altercation some three days earlier.

The testimony of star prosecution witnesses cast further doubt on the State's theory and the soundness of the police's investigation. When the State called Jermaine's 16-year old girlfriend to the stand to testify she saw him with a gun the day of the shooting, she testified she did not see him with a gun that day, but that the story she told police actually occurred earlier that week. She explained the police pressured her to change her story, threatened to charge her as an accessory to murder, and showed her a holding cell. The girl's mother corroborated this account, explaining her teenage daughter was so visibly distraught during the interrogation that she could see the girl's heart beating in her chest. In fact, the last time Jermaine's girlfriend saw the gun, it was in the home of the State's other key witness: Terrance.

Terrance, another black, 16-year-old youth, was living in the apartment of a woman who took him in after his mother kicked him out for bad behavior. Over the summer, he befriended Jermaine and the two boys were frequently seen at the convenience store together including on the night of the murder and three days earlier when both boys had words with the victim. The only testable DNA recovered by police showed that Terrance, or "T", had worn Jermaine's hoodie—the same hoodie police claimed was used to conceal the gun the night of the shooting. The alleged murder weapon was never recovered, but was last seen in a purse behind the sofa in the apartment where T was living. Police recovered the empty purse, not behind the sofa, but in T's room. After police arrested him, T claimed Jermaine told him that he (Jermaine) shot the victim. Unlike Jermaine's girlfriend, whose mother was present during coercive police questioning, T was interrogated twice without a parent, guardian, or lawyer present. None of the interrogations were recorded or videotaped. After T rolled on Jermaine, T was charged with misprision of a felony. With Jermaine facing

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a possible life sentence for a crime he did not commit, our primary concern was seating a jury that would be guided by the evidence or, rather, an extraordinary lack of evidence, implicating Jermaine.

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The modern American jury's role as fact finder traces its roots to an early nineteenth century shift that divested the jury of its authority to decide questions of law.⁶ During the colonial and post-Revolutionary period, American juries routinely exercised the power to decide the law, often with little direction from the court and sometimes in contravention to the law as explained by the court.⁷ This near absolute power over legal and plenary matters accorded with the trial court's modest role of maintaining order, jurists with little or no legal training, and an overarching belief that the entirety of a dispute was put before the jury for decision.⁸ Accordingly, when the Supreme Court empaneled a jury in 1794, Chief Justice John Jay charged:

It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of law. But still both objects are lawfully, within your power of decision.⁹

However, by the 1830s, the legal landscape of jury power had taken its present shape whereby courts, guided by precedent or legislative enactment, instructed juries on the law and set aside verdicts that departed from that instruction.¹⁰ In 1835, Justice Joseph Story, while sitting as a circuit...