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Function of Juries & Jury Nullification | 09 May 2014

-Jurors Beg Judge Not To Send OWS Protester To Prison

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Fence_of_Prison-BPOThanks to Dawn Peterson-Smith and Steve Silverman for these articles on the Cecily McMillan conviction we reported on earlier this week. Upon returning to the real world after being relatively isolated during the four-week trial, several jurors expressed their shock over the possibility that the person they just convicted could go to jail for as much as seven years. One of them seemed to indicate that he or she was a lone, holdout juror who caved to peer pressure and changed a Not Guilty vote to Guilty, not based on a conscientious belief that it was a just verdict, but out of a sense of futility and frustration.

Cecily McMillan jurors tell judge Occupy activist should not go to jail

A majority of the jurors who this week convicted an Occupy Wall Street activist of assaulting a New York police officer have asked the judge in her case to not send her to prison.

Cecily McMillan was on Monday found guilty of deliberately elbowing officer Grantley Bovell in the face, as he led her out of a protest in March 2012. She was convicted of second-degree assault, a felony, and faces up to seven years in prison. She was denied bail and is being detained at Riker’s Island jail.

However, nine of the 12 jurors who unanimously reached the verdict have since taken the unusual step of writing to Judge Ronald Zweibel to request that he not give her a prison sentence on 19 May.

Click here to read the letter to the judge.

Unfortunately, the prospects for human decency do not seem promising from a judge who currently has McMillan locked up even though she has not yet been sentenced and has made clear she plans to appeal.

Jurors Beg Judge Not To Send OWS Protester To Prison

Judge Ronald Zweibel has not shown sympathy for McMillan; he sent her to Rikers without bail after the verdict (and denied her appeal), denied a request to unseal evidence that may have cast more doubts on Officer Bovell’s credibility, imposed a gag order on McMillan’s attorneys, and on more than one occasion acted angrily towards her supporters in the courtroom.

Why is it that a judge in this case can, even before sentencing, begin meting out punishment to the defendant FAR IN EXCESS of what her jurors believe is just? In “The Case for Jury Sentencing”, Morris B. Hoffman discusses the very strange state of the modern American jury’s role in sentencing:

One of the paradoxes of the American criminal justice system is that it reposes almost unassailable confidence in jurors’ ability to reach just verdicts on guilt or innocence, but almost no confidence in their ability to impose just sentences. When Bad Bart is tried and convicted of a noncapital crime, in all federal courts, and in almost all state courts, his jury will have no role in his sentencing.1 The jury’s re- sponsibility will begin and end with the guilt phase, and the trial judge will decide how Bart must pay for his crime, usually within limits set by legislatures or sentencing commissions, but with no input from the jury that convicted him.

Yet when Bart is sued in tort in the same courthouse for the same criminal act, his civil jury will decide both the guilt phase—that is, whether Bart acted negligently or intentionally—and the damages phase—that is, how much Bart should have to pay for his actions.Few can imagine a civil system, or a Seventh Amendment, in which the jury’s role would be limited to deciding liability and the trial judge would assess damages. Yet few can imagine anything but that same artificial division of labor when it comes to noncapital criminal cases.

To further deepen the paradox, if Bart commits a murder and faces the death penalty, suddenly, the jurors trusted to award civil damages but not to impose noncapital sentences are the only ones trusted to decide life or death. Apparently, jurors are necessary and trustworthy only at the two ends of the “importance” continuum—in civil cases where only money is at stake and in capital cases where a life is at stake. They are somehow unnecessary or untrustworthy in the vast middle, where only judges are trusted to impose prison sen- tences that can run from one day to a lifetime.

This was not always the case. Hoffman points out that ancient and classical Greek jurors and many English jurors throughout the Middle Ages and into the seventeenth century participated not only in determining guilt or innocence, but also in determining sentences. Jury sentencing found its way into American legal systems as well. By the nineteenth century, says Hoffman, “sentencing schemes with no input from the jury were the American exception, not the rule.”

As the rehabilitative model overtook the punitive model, he says, the attitude became more prevalent that sentencing was not a matter for mere jurors:

The idea behind rehabilitation was that the primary purpose of the criminal law was not to punish or to deter, but rather to cure criminals of their antisocial tendencies. Once this quasi-medical model became dominant, the idea that mere jurors could decide how long a criminal “patient” needed to be “hospitalized” was absurd. Only qualified, trained judicial professionals could hope to have any insight into such treatment.

By 1960, 13 states still had jury sentencing in non-capital cases. That number has since dwindled down to just a handful. Yet what does our criminal legal system look like today? It is a far cry from this so-called rehabilitative ideal, with malicious prosecutions and vindictive sentences all too common.

In jailing McMillan before she is even sentenced, let alone before she has been afforded the opportunity to appeal, what is Judge Zweibel telling us about this case? Is he in such a rush to rehabilitate McMillan for the poor dear’s own good, and that of the community that he doesn’t want to put it off one day lest she fall further into her supposedly criminal ways wreaking criminal havoc across the city? Or is he rushing to make sure she is punished as harshly as possible before another jury, perhaps with more conscientious jurors, has the opportunity to to overturn a grossly unjust sentence?

McMillan will never get back any one of the days of freedom that she is losing between now and any possible appeal. In fact, she could serve an entire sentence before the legal process gets to her appeal even if a subsequent jury acquits her, thus completely undermining that jury’s verdict. It would serve only as a symbolic vindication and not as a protective barrier between her and abuse at the hands of government. And in that time, she faces the horrors of prison, including the potential for psychological abuse, physical assault, rape, and even death in our violent and almost entirely unchecked prison system.

Jurors may not directly participate in sentencing, but they do hold great sway over it through their verdicts. A Guilty verdict gives a judge wide latitude, often far beyond common sense and justice, in punishing the person convicted. But by delivering Not Guilty verdicts, jurors have the protective power to close the door to any further punishment.

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