A Trial By Jury. What's It Mean?

What Is A Fair Trial?

Americans like to pride ourselves for having a good criminal justice system and bottom line, we like to say everyone gets a “fair trial.” Our credo is engraved over the portico of the US Supreme Court Building in W-DC. These four words, “Equal Justice Under Law.” To my best knowledge there is no single court decision where a judge has laid out all the necessary elements making a “fair trial.” That is partly due to what is called “in the interest of economy.” Judges don’t take up issues not germane to the appeal. That coupled with another rule distinguishing a “holding” from what is excess, or “dictum.” Holdings are binding, dictum is commentary. Every word in a decision that is not a holding is dictum. Advisory, and not obligatory. Informative but not mandatory.

As descendants of the English, legally if not biologically, America uses the jury adversarial system. Napoleon OTOH, introduced the non-jury inquisitorial system now used in most non-English speaking countries around the world. Including Iraq. We usually date the right of trial by jury to the Magna Carta. 1215. I have found other, older sources for some of what we take for granted today. There are sources that ante-date the Hebrew Bible - Christian’s Old Testament - but the OT certainly goes back 3,000 years. One contemporary “right” is copied almost straight out of the OT The definition for treason is found in our Con, at Art. 3, Sec. 3, Cl. 2. “No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act . . “ It is said in Deuteronomy “ . . no person shall be stoned to death but on the testimony of two or three witnesses.”

Using the terms “testimony” and “witnesses” implies a trial of some kind was held prior to determining guilt and imposing a sentence. This may be the way out for the popular offense of adultery. Normally, in adultery, there are no witnesses. Well, that is my guess, denying I would know what a “normal” adultery is. There were many offenses for which stoning was the punishment, including an unruly child - no juvenile delinquents in Israelite times - but with this requirement it seems unlikely stoning was a common happening.

I surmise the village or clan held a meeting open to all to participate. This was the practice in Native American culture. Women and children as well as men were allowed to speak before a decision was reached by the elders. It was not often the elders went contrary to the popular will.

There are many rules about who can be a juror, about the juror’s duty and about the juror’s rights during and after the trial. It is accepted that jury deliberation may be disputatious but if racial epithets and pushing and shoving occurs among the jury, then it seems the jury has failed to be able to reach it decision “calmly and deliberately.” it is a long standing rule to seat extra jurors during the trial to avoid a mis-trial should one or two jurors be excused before deliberations begin. The judge first reads the instructions to the jury. But at that point, which is described as when the judge “gives” the case to the jury, the alternate jurors are excused and the case is set in stone. Twelve good men and true now have the obligation to weigh the evidence, give due credibility to witnesses, and to carefully follow the instructions in reaching their verdict. Although not required by law, it is regarded as mandatory should any 1 juror ask, to vote in secret.

If a juror recants in open court as the verdict is being read, the judge must send the jury back to begin anew. If a jury cannot reach a verdict, then the judge declares a mistrial. The case may or may not be re-tried. That is up to the prosecutor. Here follows a case in today’s news.


In Massachusetts a woman was raped and murdered. She was white, normally not an issue, but one in this case. The accused was black.

McCowen, 34, the accused, admitted he had sex with her but said a friend of his killed her. [Apparently he admitted to rape.]

The original jury deliberated more than 28 hours over five days before declaring a deadlock. Judge Gary Nickerson sequestered them and ordered them to keep trying, but the next day he removed a juror who was recorded talking to her jailed boyfriend about media reports on the case and making disparaging comments about police. [Serious issue here is how did the judge learn of this call? Were jurors told their calls would be monitored and recorded?]

That juror was replaced with an alternate, and two days later the jury announced a guilty verdict. [Second serious issue. When the 12th juror was lost, the case should have been a mistrial. The story is not clear if the alternate juror had be sequestered but if he had not, then all the more this is irregular judicial practice.]

George [defendant’s lawyer] said three jurors contacted him after the verdict and told him that three other jurors had made negative remarks about black people. According to the affidavits, filed by jurors identified only as Juror A, Juror B and Juror C, racist comments included snide remarks from a white female juror about a black female juror's hairstyle and questions about her educational background; a white female juror commenting that she was afraid of McCowen [accused], saying "the big black guy" was staring at "us;" and a black male juror's comments that he did not like other blacks because "look at what they are capable of."

The black female juror, referred to as Juror A, said in her affidavit that the white woman, while trying to convince other jurors that Worthington [the victim] had been bruised during a struggle, "exploded when I questioned her about it by [her] yelling that ' . . when a big black guy beats up on a small woman' bruises of that size would happen."

Juror A then called the woman a racist and the two had to be separated, according to the affidavit. The affidavits also describe the pressure the jurors say was exerted on them to switch their votes from not guilty to guilty. [That is ok. It’s like being married. One juror has a right to ask another juror to change his or her vote. Civilly. Each person must have the intestinal fortitude to stand on his or her decision.]

Juror B said that after the jury delivered its guilty verdict Judge Nickerson told them they could have declared a second deadlock. Both Juror A and Juror B said they would not have changed their votes to guilty if they had known that. [When adding a new juror - a taboo in most states - the judge should have re-read the instructions as if the matter was beginning afresh, de novo. The judge has done a miserable job in this case.] when juries begin fighting among themselves, how is an accused going to get a fair decision?