America's Unwritten Constitution: The Precedents and Principles We Live By (71 page)

FOUR SCORE AND SOME YEARS
after the American Revolution, Reconstruction Republicans layered the Fourteenth Amendment atop the
Founders’ Bill of Rights. Like the Founders, the Reconstrutors valued juries, but theirs was a far more nationalistic vision.

Recall that in the very process of adopting the Fourteenth Amendment, Americans celebrated and redefined the role of the nation’s army and subordinated the Founders’ vaunted local militia. Beyond the military realm—indeed, across the board—the Reconstruction vision reposed more confidence in organs of the central government than did the Bill of Rights. Whereas the First Amendment had begun by stressing that “Congress shall make no law” of a certain sort, each of the Reconstruction Amendments ended by proclaiming that “Congress shall have power to enforce” the Reconstruction vision, which of course included at its very core the notion that “[n]o State shall make or enforce any law” violating fundamental rights as defined by national institutions.

The right to be tried by a jury was precisely one of these fundamental rights—a civil right that was thus properly incorporated against states thanks to the Fourteenth Amendment. But a mere civil right of criminal
defendants
offered insufficient protections to certain
victims
of crime—in particular, blacks—who were placed at risk if bigoted juries chose to wink at crimes committed against these vulnerable victims.

Enter the Fifteenth Amendment, which in 1870 promised to restructure both state and federal juries—civil, grand, and petit—in a manner designed to reduce the risk of racist jury nullification. The Founders had allowed states to choose juries howsoever they pleased, much as states had broad authority to define their electorates, subject only to the Article IV republican-government clause, which was never seriously enforced prior to 1860. And the war came—and came precisely because of antebellum America’s failure to hold states to high republican standards. With the Fifteenth Amendment (which built on and extended earlier Reconstruction statutes requiring race-neutral voting laws in the old South), Republicans took direct aim at race discrimination in the domain of political rights: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” Through this right-to-vote amendment, Republicans reconstructed not merely the ballot box but also the jury box. In neither venue would states be allowed to discriminate as they had before
the Civil War. In theory, blacks would have an equal right to vote in every election and an equal right to serve on and vote in every jury—a principle expressly reaffirmed by a landmark 1875 congressional statute whose jury-trial provisions have remained in effect to the present day.
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In actual practice, much of the promise of the Fifteenth Amendment lay dormant until this amendment was effectively reawakened by the vigorous tag team of the Voting Rights Act of 1965 and the Warren Court. Prior to 1965, blacks in many parts of America—especially the Deep South—were kept off the voting rolls and out of the jury box, in unremedied defiance of the Constitution. Since 1965, the picture has dramatically improved. And wherever and whenever the full letter and spirit of the 1870 amendment, the 1875 act, and the 1965 act have been followed, racist jury nullification has not been a grave problem; blacks have been able to serve alongside whites in the jury box and thereby thwart racist nullification.

The root problem of racist jury nullification in cases such as the murder of Emmett Till was never the jury as such, nor nullification as such. It was racism pure and simple—and, in particular, racist rules that allowed all-white juries as a matter of course. Now that the jury box has truly opened itself to all races on equal terms, racist jury nullification has largely faded away as a decisive argument for depriving jurors of their traditional right to acquit against the evidence as a matter of conscience.

AND
“
RIGHT
”
IS THE RIGHT WORD.
For more than two centuries, the deep logic of American constitutional law has recognized not merely the brute
power
of criminal trial juries to just say no and get away with it by escaping perjury charges, but also the legal
right
of these juries to acquit against the evidence—to “nullify” a particular criminal prosecution. This logic emerges from a simple side-by-side comparison of certain technical rules of civil and criminal procedure and a quick review of the asymmetric rules within criminal cases.

In a civil jury trial, if the evidence and testimony overwhelmingly establish the defendant’s civil liability, the judge, on his own motion, may enter judgment against the defendant, without even submitting the matter to the jury. If the judge instead allows the case to go to the jury, he may in the process “direct”—order—the jury to find for the plaintiff, or he may cabin
the jury by insisting that it answer a series of specific factual inquiries and thereby render a “special verdict” rather than a simple general verdict of “liable” or “not liable.” In other situations, even after a jury has found for the defendant, the trial judge may simply set aside this verdict and enter his own verdict for the plaintiff, if indeed the defendant had no good legal justification. In still other cases, the judge may instead opt for a new trial, giving the plaintiff a second chance against the defendant.

Precisely and only because criminal juries have a legal right to acquit against evidence, judges in criminal cases have never had authority to do any of the things that they may automatically do on the civil side of the docket—in criminal law, there are no summary judgments, no directed verdicts, no special verdicts, no judgments notwithstanding the verdict, and no second prosecutions for the same offense. Or, to be more precise, judges have never had authority to do any of these things
to the detriment of the criminal defendant
. Bench rulings favoring criminal defendants—for example, summary judgments against the prosecution and decisions setting aside jury verdicts of guilty—have never been constitutionally prohibited.

Together, these and a cluster of other closely related legal doctrines add up to a clear, if implicit, constitutional right, and not merely a lawless power, of criminal juries to acquit against the evidence—to nullify a specific prosecution. These constitutional rules are about as well settled as any in America’s Constitution, written or unwritten. Not only were these rules in place prior to the Founding, and thus embedded in the word “jury” as its role and rights were understood by the framing generation, but these rules have remained in place ever since as definitive glosses on the document.

THE QUESTION THUS BECOMES,
if these are in fact the rules of America’s Constitution, written and unwritten, why shouldn’t jurors be told the truth about them? Some jurors (for example, all those who have read this book) will enter the jury box knowing these truths. Other jurors will arrive as blank slates. Still other jurors will come into courtrooms with garbled misunderstandings of first principles. This state of affairs betrays one the deepest purposes of jury trial, namely, the proper legal education of citizens as they are drawn into temporary public service. Juries should be devices to reconnect the people’s law, the Constitution, with the people themselves. Instead, the status quo calls to mind an unhappy image of a Constitution
that is in effect written in a foreign language known only to a few legal insiders. If modern America can Mirandize every criminal suspect taken into custody, surely we can Zengerize and Tillize every juror by properly informing her of her true legal rights and responsibilities.

Jury nullification thus needs to be brought into the open, with honest bench instructions and morally serious judicial commentary about this right and power. Ideally such judicial guidance would include explicit references to occasions when the past exercises of this right have become celebrated parts of the American story (as in the
Zenger
case) as well as to instances when jury nullification has been the shame of the nation (as in the
Till
case). The precise wording could emerge from the Supreme Court itself, much as the now-famous
Miranda
warnings built upon the Court’s own opinion in
Miranda v. Arizona
. Alternatively, the Department of Justice, in cooperation with the American Bar Association, could compose a short video to be shown to all prospective grand jurors and petit jurors. Such a video would vindicate the essence of the American jury, reconnecting ordinary citizens to the Constitution and enlisting them in the grand American project of morally serious self-government.

Current practice, by contrast, does not invariably draw jurors into this project. Rather, modern officialdom all too often instrumentalizes and infantilizes jurors by disrespecting or derailing their moral judgment. When a juror finds a man guilty of having shoplifted a baseball glove and only later finds out from the local newspaper or a lawyerly acquaintance that what she really voted for in the jury room was to send this poor soul to prison for life (and at taxpayer expense), she is apt to feel ill-used—as is the defendant, of course. In such situations, the basic constitutional framework has been warped. To repeat, the very point of jury trial is to ensure that American penal policy, both in gross and in micro, commands broad support among the citizenry.

To see the problem from another angle, let us return to the key idea of
conscience
. Jurors are supposed to be persons of independent conscience, persons neither beholden to government officialdom nor tied to the defendant. Before dooming the defendant to death or severe bodily punishment, jurors need to assure themselves of the defendant’s clear culpability, his guilt beyond a reasonable doubt—his guilt to a moral certainty. This high bar of required certitude serves to protect not only the lives, limbs,
and liberty of innocent defendants, but also the consciences of the jurors themselves. For a juror to condemn a man to death in the face of real and substantial moral doubt about his guilt would be for the juror to possibly damn his own soul, to participate in a kind of judicialized murder. The high proof bar thus serves to salve the conscience of the juror, to enable him to sleep at night, and to respect himself and his government, even after having voted to inflict severe harm or death upon another human being.

But when the juror is not told what punishments she is actually voting to inflict and not told that she has a legal right to just say no and a legal duty to consult her conscience, then the moral foundations of the entire system begin to crumble.

THE FOUNDATIONS OF THE SYSTEM
—or at least the foundations of the system as it needs to be reconceived in light of various right-to-vote amendments—also begin to crumble when lawyers are allowed to peremptorily challenge prospective jurors and thereby keep them out of the jury box. A peremptory challenge need not be justified; it can be exercised on a whim or a hunch or even because of a deep-seated prejudice entertained by a litigant or lawyer. That, indeed, is what makes such a challenge “peremptory” and what distinguishes it from a challenge for “cause”—that is, for juror bias asserted and established in the courtroom.

Although peremptory challenges were part of Founding-era practice, there is reason to suspect that in that era peremptories often functioned merely as polite challenges for cause. In a world characterized by smalltown trials, many a prospective juror might have been a personal acquaintance—perhaps a friend, perhaps a rival—of the defendant, the prosecutor, and/or one of the witnesses. Proving actual disqualifying bias in such situations might have been legally difficult and socially awkward. Peremptories enabled lawyers to eliminate actual bias in a more graceful fashion. As America’s population grew and juries were drawn from increasingly populous districts, the need for peremptory challenges declined. A lower percentage of prospective jurors was likely to have any personal connections to litigants or witnesses, and judges could easily dismiss all such persons for cause without seriously depleting or skewing the pool of prospective jurors.
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More importantly, the post-Founding constitutional amendments transformed jury service into a federal constitutional right. It was one thing for a prosecutor (or a defense attorney, for that matter) to peremptorily exclude dark-skinned jurors in, say, 1859. It was quite another thing to do so twenty years later, because by that time the Fifteenth Amendment was on the books, an amendment that promised an end to all racial exclusions in the political world, not just at the ballot box but in the jury box as well. The later Nineteenth, Twenty-fourth, and Twenty-sixth Amendments, written in nearly identical language, likewise promised jury equality alongside other forms of voting equality.

In 1965—the same year that saw the enactment of the transformative Voting Rights Act—the Warren Court announced that peremptory challenges could not be used systematically to keep blacks out of jury boxes. (Alas, the Court invoked the Fourteenth Amendment, rather than the more apt Fifteenth Amendment, as the basis for this limitation.) The post-Warren Court has begun to put teeth into this doctrine, extending it to prohibit sex-based peremptories (once again by relying on the Fourteenth Amendment, even though the Nineteenth would have been the more solid foundation for the extension).
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So-called “peremptory” challenges in the early twenty-first century are thus no longer peremptory. Prosecutors and defense attorneys must be prepared to show that they are not in fact bouncing citizens off juries because of the prospective jurors’ race or sex or indeed for any other unconstitutional reason. In fact, clever lawyers seeking to win cases do use race and sex all the time in exercising their allotted peremptory challenges, while pretending that nothing of the sort is happening in the hallowed halls of justice. Full vindication of the post-Founding right to vote will be achieved when peremptories are abolished altogether—a move that Justice Thurgood Marshall called for long ago and that has received more recent reinforcement from Justices Stephen Breyer and David Souter. Voting registrars and poll workers are not allowed to peremptorily deny adult resident citizens their basic right to vote on Election Day; neither should trial lawyers be allowed to deny these same individuals their basic right to serve and to vote on juries when duly summoned.
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