Monday, October 26, 2009

Jury Selection in the Trial of Raymond Jessop (UPDATED AGAIN)

Brooke Adams (with whom I have a massive approach/avoidance issue) is someone I continue to regard as a great writer/reporter and also someone who conceals a severe bias, but she does make the great critical observation from time to time, and here is one.
The Plural Life - "There are about 2,100 residents of the county who are 18 or older."
This is the basic jury pool from which persons begin to be disqualified right away.
"The big question, of course, is whether there are 14 people — 12 jurors and 2 alternates — in Schleicher County that do not already have an opinion about the FLDS."
And this is what makes me wonder. The O.J. Simpson trial for his supposed murder of his wife and another was held close to home in what had to be a massively tainted jury pool. O.J. was IMHO opinion, guilty. There were some disturbing questions that schooled around the O.J. trial, some of which place me on the side of his conviction (which did not occur) and some of which did not. I tend to think it is an excellent example of a foundational right in this country, of "jury nullification." One that is so seldom discussed that we are about to lose it altogether, as a right.

I confess to finding O.J. acquittal supporters infuriatingly political, there was one interview of onlookers at the time, black onlookers in the Los Angeles area, where it was asked "Do you think he will/should be acquitted?" and the answer was an emphatic YES, and then an astoundingly insightful follow up question by the reporter who then asked the same person if they though O.J. was guilty. The answer was an equally quick and sincere YES. Essentially the onlooker (and I think ultimately the jury) said "I don't care if he's guilty, I'm not going to convict him."

My interpretation of that, and it was the view of many at the time, is black Americans saw themselves as a separate group within the country, and a severely oppressed one. It was a chance to strike back and declare they as a group felt railroaded all too many times and the Simpson trial was a way to say that.

Consider yourselves heard.

On balance, what further threat did O.J. represent to society? He was successfully sued in a second trial to recover the proceeds of his book speculating on "What if" he did do it. While adamant that he should have been convicted, I was equally adamant that if he was pronounced "Not Guilty" then no one should be able to use the assumption of his guilt to recover money from him. I was disappointed with O.J. now on two fronts, but he did not recover any money from the whole business it would seem, he did not kill again, and eventually he did a massively stupid thing in Nevada and will probably die in jail for it.

This illustrates the threat to society of a lone criminal, or even a group of criminals. What threat are they on balance to me? None. If I have met a Mafioso I haven't known it. The closest I came to meeting one was Jimmy Hoffa's book keeper who is probably now passed away. It led to my personal but largely unsubstantiated (but plausible) theory of what happened to Mr. Hoffa. If true, he will never be found. I digress. The point? I have not been visibly harmed to a great degree by the presence of organized crime (I certainly disapprove) and I was not shot by O.J. The fact that criminals do go free and do what they do again, or that organized crime kills and steals and harms us all is not lost on me. The question is of comparative threat.

Back to Raymond and his various compatriots on trial in Schleicher County. Is it a right of Government to have an assurance, constitutionally, of having a fair shot and convicting any particular defendant. I have to say no. The presumption of innocence and the right to a fair trial (by a jury of your peers) are those of the defendant(s), not of the prosecution. It has been suggested that the trial may be moved because a jury cannot be seated in Schleicher County. If the trial is massively unfair in favor of the defendant, what precisely is the harm? I submit, as framed by our founders, none.

This "right" though, to "get 'em if they are guilty," now seems embedded in the public consciousness and it would seem that a change of venue might be asked for by the prosecution. I don't even know if that's possible, but I suspect it may be so. It shouldn't be. If Raymond Jessop wants to be tried in Eldorado, he should be tried in Eldorado. If they can only find 14 jurors (2 alternates and 12 regulars) then that's all they can find, and the trial should proceed. If the defense deems those jurors too tainted to try their client, it is Raymond's right to change venue, or it should be. Again, IMHO.
"The names of some residents who’ve been called as potential jurors are trickling out. Michelle Roberts of The Associated Press quoted Success editor Randy Mankin as saying he, his mother and his son (a photographer for the newspaper) are in the pool. Mike Kelly over at the San Angelo Standard-Times reports a court clerk got a summons."
Those folks? Probably going home. Who else?
The San Angelo Standard-Times - "The trial will be a strain for Williams’ office: It will be closed Monday because she and her deputy will be in court, and her only remaining deputy was summonsed for jury selection."
Back to Brooke's blog:
"Here are the seven sure-fire, automatic ways to get out of serving on this jury:

1. Over the age of 70. (According to Williams, this is the No. 1 reason for dismissals so far.)

2. Legal custody of a child or children under 15 and services would leave them without adequate supervision.

3. You are a student at a public or private high school.

4. You are enrolled and in actual attendance at an institution of higher education.

5. You are an officer or employee of the Texas Senate, House of Representatives, or any department, commission, board or office or other agency in the legislative branch of state government.

6. You are a primary caretaker of a person who is an invalid, unable to care for her or himself (does not apply to health care workers).

7. You are a member of the U.S. military forces serving on active duty and are deployed to a location away from your home station and out of your county of residence."
There are 12 men to try, and here is the initial call:
"Court Clerk Peggy Williams told (Brooke) a couple weeks ago that of the 300 people sent jury summons, about half are likely to show up. The no-shows either have moved out of the county or qualify for an automatic jury exemption."
After challenges, which Judge Walther must be sure are fair (I'm not sure she can manage that, it's not her nature) there may have to be a second call. In all Schleicher will plow through 1/7th of their available jurors in this first trial, and there are 11 trials to go. That 1/7th number may go substantially higher. It's conceivable that a full third of the jury pool may be spent on this first trial.

So what if they cannot find 12 men (or women) good and true to seat as a jury that is not perhaps, biased in favor of acquittal? Is this not their own fault, the prosecution? Should the presumed innocent be forced to pay for the peeing in the jury pool that Texas has already done? Shouldn't it be that if you can only find persons prejudiced for acquittal, that they should be seated and the trials go on?

If you don't want to try the trial before the trial, don't. If you do and it forces you to select jurors predisposed to acquit, then it's O.J. all over again, and I think I'm alright with that.

The comparative threat by a lawless government, is much greater.

UPDATE! - Brooke is "Twittering" that there are 12 FLDS members, that she has been able to count, so far, in the jury pool. That's close to 10% of the available jurors.

UPDATE 2 - Brooke twitters again: 153 prospective jurors showed up. So far 19 have been released after privately pleading case at bench with judge and attorneys. I wish she would tell us if any of that first flight out included FLDS members. It does sound like the first 19 were making their excuses though.

UPDATE 3, again referring to Brooke. the 19 included the obvious like Randy Mankin of the Eldorado Success. 153 jurors, 19 excused, maybe more later. That's now 134 jurors out of which 10% can be figured to be FLDS since Brooke was able to "eyeball" identify at least 12 she knew, all of whom appear eager to do jury duty.

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Dale Kemp said...

Somehow I doubt the Prosecution would allow FLDS members to be seated on the jury.

The Pharisee said...

17 FLDS Members were in the jury pool. Seven were eliminated earlier today on the basis of blood relationship.

CTyankee said...

Tsarist Russia used to have an option for the jury, apparently, of "guilty, but not to be punished." A way for the jury to do, with more dignity and honesty, than what the OJ jury did with their verdict. Having only two options already stacks things in favor of the state.