Tuesday, October 27, 2009

It's really not a secret, it's jury stacking (or venue shopping)

What's going on here?
The Salt Lake Tribune - "The second day began as the first ended: With pool members being brought one at a time to the bench of 51st District Judge Barbara Walther where discussions are held with prosecutors and defense attorneys. None of those exchanges can be heard at the back of the courtroom, where other prospective jurors and media are seated.

Under Texas law, voir dire of potential jurors must take place in open court."
The prosecution is trying to prevent FLDS members, from sitting on the Jury. That has to be done so as to not look discriminatory, but that's what's being done. Texas pretty much knows that if 3 FLDS members make it to a jury, the jig is up and the best they can hope for is a hung jury. Pretty much one juror from the FLDS will do the trick, but if the judge can sit only one, she can replace that juror later for "misconduct" with an alternate.

From where I sit, I don't see how there is a "right" of the state to have a fair and open chance to gain a conviction. The state, has no rights. The defendant does. They can seat juries easily for all of the upcoming trials in one morning. Simply don't object to FLDS members on the jury, that's all.

This comes from not recognizing the lost right of "jury nullification."
"Nullification has a mixed history in the United States. Jury nullification appeared in the pre-Civil War era when juries sometimes refused to convict for violations of the Fugitive Slave Act because jurors felt the laws to be unjust. During the 20th century, especially in the civil rights movement era, some all-white juries acquitted white defendants accused of murdering blacks. During Prohibition, juries often nullified alcohol control laws, possibly as often as 60% of the time due to disagreements with the justice of the law. This resistance is considered to have contributed to the adoption of the Twenty-first amendment repealing the Eighteenth amendment which established Prohibition."

"(In) Georgia v. Brailsford (1794), the U.S. Supreme Court recognized that juries have an absolute right to judge both the law and the facts of a case: And the Court thus established a precedent for the basic right to jury nullification."
Texas does not have a right to enforce it's laws, essentially, on a community that simply doesn't accept them. A defendant can elect to a trial by his/her peers, and if those peers don't see the law being applied as just, they can just sleep through the trial, and vote not guilty. By trying to NOT seat a jury, Texas tries to violate a basic right of each individual in the community, and that of the defendant.

All of this is window dressing for claiming on appeal, "why no, I did not discriminate against FLDS members," so the prosecution is looking for every legal fig leaf they can find. 12 men and women will happily come forward, but in reality, Texas wants a change of venue.

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Ron in Houston said...

Whether you agree with the word "right" or not, the trial must be fair to both the defendant and the state; otherwise, Mr. Jessop will still be at risk of his liberty.

The Pharisee said...


Our system of jurisprudence was skewed towards the individual, not the state. The state is hobbled deliberately by the constitution. The fact that the state often does not get the outcome it wants is figured by the founders as the lesser of two evils.

I do not recall a single enumerated RIGHT of the state, I do see that it has POWER(S). Our rights protect us against those powers. If the state can't seat a jury in Eldorado, well, my view is "too dang bad." That sometimes doesn't work well for anyone but the defendant(s), but so it goes.

Riki said...

Actually, Hugh, all the defense needs is 1 hold out. Verdicts in criminal trials must be unanimous. Doesn't matter if that 1 juror is FLDS or not. All it takes is 1 hold out.

The Pharisee said...

This is true Riki, I was figuring it this way.

14 Jurors, 12 regular, and 2 alternates.

I figure with 3 FLDS members and they can't run them off the jury.

2 of 12 with 2 non FLDS alternates and they can run the 2 off, and replace them. I like to have hole cards so that's what I'm wishing for. 3.

The Pharisee said...

Something I missed in the San Angelo Standard Times article:

Professor Arnold Loewy, a Texas Tech University law professor, said dismissing the FLDS members out of hand from the pool of prospective jurors might raise questions of religious freedom and of whether Raymond Jessop is getting a fair trial from a jury of his peers, but prosecutor Eric Nichols will likely strive to purge the FLDS sect members from the jury pool."

So I am on pretty solid ground to say that Eric Nichols and Barbara Walther have their work cut out for them, if they are to exclude them from the Jury.

Make no mistake about it, Judge Walther is part of the prosecution team.