Posted on 05/29/2009 11:34:48 AM PDT by AuntB
In every trial — every single trial — judges solemnly instruct American citizens who are compelled to perform jury duty that they will have a sworn obligation to decide cases objectively — without fear or favor. If a person is unwilling or unable to do that, if the person believes he or she has a bias or prejudice, especially one based on a belief that people are inferior or superior due to such factors as race, ethnicity, or sex, the person is not qualified to be a juror.
Indeed, prospective jurors are told that they are not qualified if they harbor even the slightest doubt about their ability to put such considerations aside and render an impartial verdict. If the judge or the lawyer for either side senses bias, the juror is excused "for cause" — the parties are not even required to use their discretionary (or "peremptory") jury challenges to strike such a juror; rather the judge makes a finding that the juror is not fit to serve.
And the stress on impartiality does not end once the prospective jurors, after being carefully vetted for any hint of bias or prejudice during voir dire (the selection process), are finally selected to sit as trial jurors. Instead, the admonition to consider the case fairly, impartially, and without bias of any kind is often repeated many times throughout the trial. And even after that, it is standard procedure to drum the obligation into the jurors again right before they retire to deliberate on a verdict. Here is the standard instruction:
You have two duties as a jury. Your first duty is to decide the facts from the evidence in the case. This is your job, and yours alone. Your second duty is to apply the law that I give you to the facts. You must follow these instructions, even if you disagree with them…. Perform these duties fairly and impartially. Do not allow sympathy, prejudice, fear, or public opinion to influence you. You should not be influenced by any person's race, color, religion, national ancestry, or sex.
Now let's forget labels like "racist" for a moment. In our society, "racist" is a radioactive term, whether or not it's applied accurately. I want instead to home in on the premium our law places on impartiality — how noxious it regards the very notion that any important decision might be "influenced by any person's race, color, religion, national ancestry, or sex." No one is saying that those attitudes don't exist, or even that someone is necessarily a bad person for having such attitudes — sometimes such attitudes are fostered by bitter life experiences that people find themselves unable to get over. But we strive to keep those attitudes out of our law — even to the point of expecting prospective jurors to tell us honestly whether they have such biases so we can make certain they don't get on a jury. Non-biased decision-making, we tell every ordinary citizen called for jury duty, is the most basic obligation of service in the legal system.
Would Judge Sotomayor be qualified to serve as a juror? Let's say she forthrightly explained to the court during the voir dire (the jury-selection phase of a case) that she believed a wise Latina makes better judgments than a white male; that she doubts it is actually possible to "transcend [one's] personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law"; and that there are "basic differences" in the way people "of color" exercise "logic and reasoning." If, upon hearing that, would it not be reasonable for a lawyer for one (or both) of the parties to ask the court to excuse her for cause? Would it not be incumbent on the court to grant that request?
Should we have on the Supreme Court, where jury verdicts are reviewed, a justice who would have difficulty qualifying for jury service?
Mainland Puerto Rican diaspora. Have generally lived in segregated enclaves in the northeast, although that may be changing as the third generation reaches adulthood.
Basically I was just trying to point out that the very characteristic that Obama is using to select his Supreme Court nominee is the same characteristic that would get me kicked off a humble jury.
Excellent. Sometimes the obvious needs to be pointed out.
The hearings should not be on whether Sotomayor should be elevated to the Supreme Court, but whether she should be impeached. Does no Republican have the courage to introduce papers of impeachment?
No, and she doesn't qualify to be a Judge either. She'd never win an election by the people with the public statements she's made.
You have two duties as a jury. Your first duty is to decide the facts from the evidence in the case. This is your job, and yours alone. Your second duty is to apply the law that I give you to the facts. You must follow these instructions, even if you disagree with them......instructions that are in direct contradiction to the Constitution of the Commonwealth of Pennsylvania, yet used in the courts there anyway (and why I am never called to serve on a jury):
[...]in all indictments for libels the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases. --PA Const. Art. 1, § 7And, of course, there's good ol' John Jay...
"It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision… you [juries] have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy"--John Jay, first Chief Justice of the United States
However, I do wonder if a Latina Woman, with the incredible experience and rich heritage that goes with that, would also make a better judge than an old Black Man, or a seasoned White Woman.
Awesome, awesome article. Simple and direct. and NO, she would NOT qualify as a jurist, let alone a judge. she has been reversed 60% of the time herself, so other judges think she isn’t fair.
And I'd use a strike on her if I had to (and, if I lost, I'd appeal the trial court's refusal to allow a challenge for cause).
“Should we have on the Supreme Court, where jury verdicts are reviewed, a justice who would have difficulty qualifying for jury service?”
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No, but then we shouldn’t have Senators, Representatives, Presidents who swear to preserve, protect, defend the Constitution after campaigning on promises to violate the constitution. Our whole system has become a mockery because the few who still believe in the values of the founders are unable or unwilling to take action. We should have at least two hundred impeachments in progress at the federal level right now.
ITEM She identifies herself as Puerto Rican first, even though she was born in the USA. Why does an American citizen cop a latino speech inflection (if she doesn't have a hidden agenda)?
ITEM In a College Thesis, Sotomayor Appeared to support Puerto Rican Independence. Did Soto have anything to do with Pres Clinton pardoning the FALN----violent Puerto Rican terrorists who bombed US installations? (Pardoned----so that then-Senate candidate Hillary could harvest the NY latino vote).
ITEM She is a member of the racial-thought police----La Raza. They are demanding "respect and fairness." That's latino for "shut up----close your eyes, ears and mouths........or else we'll get physical."
ITEM She is looking more and more like a mouthpiece for racial minority seeking to exert raw power over the rest of us---to marginalize the majority-----something one finds in failed Third World satraps.
ITEM The fact that she and her crowd do not understand a democracy is based on three co-equal branches of government is grounds for showing her the road.
ITEM Being Hispanic is not a criteria for seating a Supreme Court Justice. More is being made about her race than her actual judicial record.
ITEM She has the same disdain for America and it’s citizenry as evidenced by Obama.
ITEM She is a frightening candidate in the Thomas Jefferson sense: "When people fear the government, we have tyranny. When the government fears the people, that is freedom."
Liz, there you go quoting Thomas Jefferson. Today’s Republican Party doesn’t want to hear about the Founding Fathers. Sheesh!
:-)
obumpa
Not if it was a case of a "wise" Latina vs. a white male!
STE=Q
Correct. Further, to the extent that empathy is necessary for justice in a particular case, it must be supplied by the jury and not the judge. Unfortunately, there has been a deliberate effort to keep juries from performing this important duty, by doing things such as forbidding them from being informed the sentence that would be imposed for a particular crime.
(On that note, I'd like to see someone argue against such withholding of information, on the basis that in some cases even a jury only concerned with "facts" would need to know the sentence associated with a crime to reach a proper verdict. If jury finds that a defendant did something without intending the consequences, but without having adequately considered them, it would be right and proper for the jury to convict if the sentence would be a $250 fine, and to acquit if the sentence would be 25 years in prison. In many cases, statutes are not explicit as to the required level of criminal intent, but the prescribed sentence for a crime can provide a major clue. If the jury is denied that information, it cannot possibly know how to yield a just verdict.
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