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Samizdata quote of the day “Being tried by 12 good men and true sounds brilliant but if, God forbid, you were to find yourself in the dock charged with a crime you did not commit, would you want to be tried by 11 dinner ladies and Trigger from Only Fools and Horses? Or Wayne Rooney? Or Piers Morgan? Speaking personally, I’d far rather plead my case in front of nothing but a judge. I know that some are a bit doddery, and that many live in houses with no central heating, but most are more astute than the alternative: 11 lunching ladies and Benny from Crossroads.”
– Jeremy Clarkson
Read on, and he nevertheless defends trial by jury, despite his rather bracing opinions of our fellow men and women. For our non-UK readers, I should explain that Wayne Rooney is a footballer, Trigger is a character from a comedy show, Piers Morgan is a journalist and arsehole, and Benny is also a character from a forgettable soap opera. I hope this information proves informative and enlightening.
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Who Are We? The Samizdata people are a bunch of sinister and heavily armed globalist illuminati who seek to infect the entire world with the values of personal liberty and several property. Amongst our many crimes is a sense of humour and the intermittent use of British spelling.
We are also a varied group made up of social individualists, classical liberals, whigs, libertarians, extropians, futurists, ‘Porcupines’, Karl Popper fetishists, recovering neo-conservatives, crazed Ayn Rand worshipers, over-caffeinated Virginia Postrel devotees, witty Frédéric Bastiat wannabes, cypherpunks, minarchists, kritarchists and wild-eyed anarcho-capitalists from Britain, North America, Australia and Europe.
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Jeremy Clarkson looks intelligent, astute and libertarian to a casual observer, but I expect that he is not really sound on drugs and stuff like that. A sort of less erudite Simon Heffer, I would say.
David Davies, I don’t think it is necessary to be “sound” on all aspects of a political belief system to be appreciated as a champion or advocate of that system. In fact, being fully signed up to a creed displays a level of conformity, group think, and faith based acceptance that I would not wish to share.
Clarkson, admittedly more because of his whit and high profile rather than his wisdom, contributes far more to the spread of rightwing British political views than any dusty academic theorist or any fringe party political activist.
So, hands off Clarky, the peoples champion.
Words to live by.
Which I would rather would probably depend on the crime and the circumstances. Judges have prejudices too.
Clarkson probably feels more empathy with a judge (middle aged, middle class white man, etc, etc, etc) than with an average juror. Fair enough. But the rules are not set to make Clarkson feel comfortable. Who would a dinner lady feel more comfortable pleading in front of? Other dinner ladies, or people who think that dinner ladies are little people who cannot be trusted with significant decisions?
But in any case, there is a principle that the state should not be allowed to set itself up as a power separate from those it rules over, or that it should be allowed to the least extent possible. Perhaps in some cases judges are better educated and more dispassionate. They are also the ones who make most of the decisions about how the the state uses violence against us (decisions about war are also important, but they are rarer). That is a significant part of what a criminal trial is.
Judges have been given that power by the state. That doesn’t make them better people. It is important to remember that. (Which is why the wig and gown are actually important, to separate the man from the office.)
I guess the difference is that I am more democratic than libertarian.
I strongly suspect that certain powers-that-be encourage Clarkson to be as ridiculous as possible on Top Gear (‘shoot the cyclists’ etc), to reduce his credibility on the occasions that he talks sense.
Indeed. The rules are set to set to benefit a regulatory political class.
Democratic? Meaning what? Democracy is the means by which people elect others to control the means of collective coercion.
What’s acutally needed is to hold juriors accountable for the decisions they make. Make jury service voluntary and adequately paid, but then introduce some form of feedback mechanism, for instance making juriors liable in certain circumstances if a verdict is later overturned.
What you’d have then is a new job: professional jurior. Likely, such professionals would specialise in some area; financial law, or homicide, or business and anti-trust. They would be intelligent and erudite, carefully balancing the evidence before coming to a verdict. All that Clarkeson wants from a Judge.
Jury service as it currently exists is ludicrous; a form of modern conscription, juries are trusted to make a decision about whether someone is guilty or innocent, but are not trusted to tell what evidence is relevant or admissible.
Oh, and not being on the electoral role if you are elegible to vote is illegal, no? 😛
I suppose it’s sexist to point out that 12 good men and true could not, by definition, include 11 dinner ladies.
Of course, straightforward cases would be poorly paid, more complex ones would be very lucrative indeed.
Possibly not but are you seriously suggesting that if Clarkson was PM, the Stig was Chancellor and Hammond was Home Secretary, that Britain would not be an immeasurably better place that it is now? Hell, quite possibly better than it ever has been in fact? I would be happy to surrender that spliff under those conditions 😛
I was an executive in the lord Chancellor’s Office once upon a time, so I have actually summoned panels of Jurors, and Clarkson is right in one respect.
It was common opinion amongst us Office staff, that because of the numerous excuses available for avoiding jury service, that the jurors we eventually ended up with, were naturally not going to be the sharpest pencils in the box.
But stangely enough, conviction rates were always high.
Where he is wrong, is to put his trust in a Judge alone.
Most of the judges I have known have an agenda of their own, and their legal training will instinctively lead to them applying the letter of the law, rather than looking to do Justice.
Conviction stats are all the Govt are interested in, not Justice.
So if you really want to retain your liberty, my advice is to go for the 12 dumbos off the Clapham Omnibus everytime.
Of course, this is only good if those convicted were actually guilty…
Well Ian, in the ten years or so I was in the Crown Court, I can honestly say that I never saw an innocent person get convicted. But plenty of the guilty walk.
How do I know? Well long before a trial happens we Court Officers have read all the evidence and seen the Defendants rap sheet if any (there usually is one several pages long) after a few years you even get on first name terms with some of your customers, so often do they appear.
There was one firm of solicitors in Bristol in my day, that only had criminals as clients. If you saw that a defendant was being represented by them, then you just presumed guilt straight away, as their speciality was pleas of mitigation and appeals against sentence.
A judge sitting alone will have seen all this beforehand, just as we court staff do, and will jump to the same conclusions.
Nope your best chance is with a Jury, however dumb they may be.
On judges versus jurors, we can all look at some of the decisions that US Supreme Court Justices (the cream of the cream) have made while “interpreting” the US Constitution. ’nuff said?
This is purely anecdotal, but I have sat on several (US) juries and have always been impressed with the seriousness with which my fellow jurors have undertaken the task — even though most of us would have been more likely to find ourselves at a cocktail party at any of Obama’s alma maters bussing dishes than as invitees.
What I did not like was the explicit attempts (by both sides) to influence the jury’s decision through jury selection. Another example of the primacy of process over justice in the current legal system. Much better to make full citizenship more restrictive and then select the jury purely randomly from the voting role.
I think it’s important to remember that the context here is pleading your case when you are wrongfully accused. That makes all the difference.
If you’ve transgressed a statute and are trying to convince a court that you haven’t, or that your transgression was justified, your best hope might be rhetorical or emotional arguments. But in the opposite situation, you want the decision to be made by someone who truly understands what “beyond a reasonable doubt” means, and who has the fortitude to follow that maxim.
Relatively few people are good at making decisions dispassionately. Judges may not be perfect, but your odds of getting one who will rule dispassionately have got to be better than with a random selection of people, no matter who you are.
(I don’t mean to argue against trial by jury, in general. But I do sympathize with Clarkson’s view that, if he didn’t commit the crime, he’d rather be tried in front a judge alone.)
I think Alice put the finger on the real problem, which is the manipulation of jury selection. It has to be completely random.
I’ve never managed to make it on to a jury, even though I was actually willing, once. I had written for a paper for two years and they found that grounds to eliminate me in the last round.
The idea that you can find people with no previously formed opinions is preposterous and fictional. And as Alice points out, selection is a problem.
In the US, you are supposed to be tried by a jury of **your peers**. I am guessing that NEVER happens.
lol – comedy gold from Clarkson
(Link)
Well in the UK it is random to start with, it’s what it ends up like that may be a problem.
What I mean is that UK jurors are chosen at random from the electoral register. Then most of them make their excuses and you get left with a rump (this all has to be planned and sorted months in advance by the way, that’s why we need to read the papers, to find out how long a trial may take, how many defendants there are and how many likely challenges we have to cover)
Now the defence and prosecution in the UK are allowed a certain amount of challenges, but we have not raised it to the level of America where psychological profiling is becoming rampant according to John Grisham, anyway.
But a trial can be affected by other means.
This goes back to us in the LCO reading the evidence.
It was down to us when to call a trial and which Judge to put which case in front of.
Some of our pool of judges were Judge Jefferies but most were dripping wet lefty liberals.
So the cases we deemed were the most worthy of heavy punishment, went to which judges do you think?
A Jury is there to decide on the facts of a case that they hear in the strict limitations and procedures of a Courtroom. Guilty or not guilty beyond reasonable doubt.
A judge is supposed to be the referee between the Prosecution and the Defence, to police the rules of evidence and procedure, and then, when the Jury has given their verdict as to the guilt or innocence of the defendant, either pass sentence giving due weight to the circumstances, or set them free.
If you bundle together the backroom knowledge I had and Judges had and have, with the function of deciding the facts in a particular case without prejudice that a Jury performs, well we are all looking towards an era of monumental injustice very soon.
I was also eliminated (what do you call it when they don’t tell you that you were eliminated until the attorneys rested their cases?), because I – get this – happened to had seen a movie that the idiot public defender thought was relevant to the case. The jury found the guy guilty of rape. For what it’s worth, I happened to think he was innocent.
If I ever end up hemmed in for anything, I’m asking for a bench trial. The last paper I put in front of a jury, they convicted on VPO, and acquitted on burglary, the lesser-included trespassing, and the domestic violence enhancer. I want nothing to do with the logic that makes such a verdict possible. To say nothing of the retards that watch CSI and think it reality TV.
I’ve been called in for jury service four times now. Strangely, I never seem to last past voir dire.
As an aside: juries have remarkably little to do with verdicts being reversed in the US.
In criminal matters, a not-guilty verdict is essentially forever. It’s virtually impossible to set it aside for a new trial, and a judge flatly cannot direct a jury to return a guilty verdict.
An appellate court may review a conviction, but they’re highly unlikely to review anything that the jury did. Appellate courts review whether the trial court applied the law correctly[1]. They are loathe to review questions of fact. (I’m not sure that they even have a nose in that particular tent, in most states. I don’t think they do here.)
[1] Example: car stopped for weaving, along with erratic acceleration and braking. Driver has blown pupils, jerky, twitchy, sweating despite cold weather, and talking fast. Easily distracted. Performs poorly on standardized divided-attention maneuvers, 14 seconds on the Rhomberg Internal Clock, no nystagmus. Arrested for DUID and child abuse, and a subsequent express-consent blood draw revealed THC and meth. Driver moved to suppress all evidence developed as a result of the traffic stop, based upon the officer not having justification for the stop. He based the claim on photographs of the road surface showing that the lane markings were unclear-photographs taken 36 hours later. In the motions hearing, the court admitted everything. Whether or not the trial court should have admitted a given item of evidence is the only item that an appellate court would have reviewed in this fact pattern.
Sunfish –
Your point about appellate courts overturning verdicts mostly on procedural grounds only is interesting. I didn’t know that. It leads, though, to a semi-related question that I’ve been wondering about for a while and which maybe you can answer.
Given the US’s constitutional ban on double jeopardy, what happens after an innocent verdict is delivered and it later turns out that the jury has been knobbled (got at, interfered with, intimidated)? Can a retrial be held?
Phillip:
I’m going to give a very qualified ‘no.’ The exceptions:
1) The initial trial was a fraud, such as a defendant who bribed the judge. The legal theory is that the defendant was not in jeopardy due to his own tampering with the trial.
2) The initial verdict was a conviction and the judge entered a judgment notwithstanding. In those cases, a trial de novo may be ordered.
3) Separate laws or facts. Take the beating of Los Angeles DUID crackhead Rodney King. Four LAPD officers were acquitted of assault charges in state courts. Two of them were then convicted of “violating King’s civil rights” in Federal courts. That’s an artifact of our separate-sovereigns Federal system and may not apply in other countries. Another example: in my state, cities can pass their own traffic ordinances on most traffic matters. However, they can’t regulate driver’s licensing or vehicle registration. Let’s say I stop a car for running a stop sign and find the driver’s license to be revoked. Legally, I can write him under muni code into municipal court for the stop sign (thus getting the city its $150) and a separate summons to county court for the license.[1]
4) Civil vs. criminal. Example: a person may both be prosecuted by the government for murder, and sued civilly by the victim’s next-of-kin for causing a wrongful death. That doesn’t count as double jeopardy.
[1] It’s called “splitting the ticket.” It’s chickenshit and I won’t do it, but it’s not a double-jeopardy violation.
Sunfish,
re:Splitting the ticket …
Sorry to divert the thread, but what’s your reasoning behind *not* ‘splitting the ticket’? Surely there really have been two offenses committed, and your sworn duty as an LEO is (I presume 🙂 ) to uphold the law – indeed, as I understand it – both sets of laws.
Or am I missing something?
Bod-
Let me explain. (This assumes the legal environment of my state. Others may differ.)
Municipalities can adopt their own traffic codes. However, they are limited to a word-for-word adoption of Article 4 of Title 42 of the Colorado Revised Statutes, basically governing movement and equipment of motor vehicles. And cities are specifically barred from adopting anything that regulates driver’s licensing, vehicle registration, driving under the influence, or duties of drivers at an accident. Those four items are the exclusive domain of state law.
Why does it matter?
Violations of state law are prosecuted in county[1] or district[2] courts. Fines, once collected, become part of the state’s general fund.
Violations of city ordinances are prosecuted in municipal courts and the fines are kept by the city. Thus, city police officers are sometimes pressured to “keep the money in the city.”
In a case like my example above, the way I do it (IMHO the only really-ethical way) is to charge the whole episode into the county court under state law. What that means is that the driver is charged with violating CRS 42-2-138(1) for driving while revoked (a misdemeanor) which he would be in either case, and with violating CRS 42-4-703 for failing to stop at a stop sign, which is the exact same thing as violating Section 703 of the Model Traffic Code.
Either way, he ends up charged with driving on a revoked license and with running a stop sign. Either way, he eats four points and a fine for the one, and 10 days and a fine on the other, if convicted on both counts. The only difference is which government ends up with the fine money when it’s over.
My reasoning: If I split the ticket, then the driver has to appear in two separate courts on two different dates to answer the charges. If he wants to fight it, then he has to have two trials in two separate courts for the same episode. Imagine, if you will, being found not guilty on the stop sign while the revoked driving is still pending. Since the stop sign violation was what justified the initial stop, then the admissibility of all of the evidence in the revoked-driving case now comes into question.[3]
I also think that forcing a defendant to appear in two separate courts on two separate dates, just so my city can collect a few bucks in fines, is not okay. The purpose of a traffic fine is to deter future violations, not to make money.
(Obviously, all IMHO. And we all know of places where the police don’t see things quite the same way as I do.)
Did any of this make any sense?
[1] Traffic and misdemeanor
[2] felonies and juveniles
[3] I don’t know the case law on point here. If there’s an easy answer somewhere in the settled law, I don’t know it.
OK. I get it now – I was under the impression that the county’s claim was in some way superior to that of the municipality.
I now understand your viewpoint. The objective is to punish the offense, and not to simply to ‘farm’ revenues (while inconveniencing the offender beyond ‘reasonable’ levels)
I guess I was getting hung up on the belief that you were exercising some discretion over whether to ticket both violations.
Sorry for the threadjack.
I do not know much about Clarkson, but I saw this today, and I must admit, I like the guy at face value.
Oh, there’s discretion used as well. I don’t stop every single car with a problem, or charge every single driver that I stop. Otherwise, I’d spend most of my workweek either stopping people for “Vehicle did not have white license-plate lights” or in court for the same, when stuff that gets people hurt is more important and a little more interesting. Probably 5 out of 6 drivers I stop get some version of “Knock it off and go forth and sin no more.”
IMHO, there’s plenty of things that need to be addressed, but not all of them need to end up in front of a judge, landing on someone’s driving or criminal record, having someone end up writing checks or being a guest of the sheriff, etc.
Late to the thread here, but on the matter or judge or jury I am inclined to go with the jury except for remembering that, as one wag has put it: “Remember, with a jury you are putting your life and freedom at risk before 12 people too stupid and/or lacking in the creativity to get out of jury duty.” LOL!
When I was conscripted for Jury Duty, I came up with the idea that States should use what I call Jury-dole. If you apply for the dole, you would first serve on a jury, and then you get the same amount of time free to search for other work. Our case took four weeks, so a jury-dole system would then have given me four weeks to get a job elsewhere whilst claiming the dole.