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?
Excellent point by the author.
Andrew McCarthy is superb, as always. He’s become quite masterful at cutting through the clutter and illuminating light, and quite brightly with muster.
she’d never make it through voir dire.
bttt
Bzzzt! Wrong.
The juror's second duty is to judge the law also instead of blindly following the judge's instructions and interpretation of the law. Until the 1895 Supreme Court decision in Sparf v United States federal judges had to tell juries that they had that right.
Interesting proposition, could Sonia Sotomayor serve as a juror, in a panel supposedly made up of the peers of the defendant?
We saw how well tht worked with OJ Simpson, when the “jury nullification” principle was fully exposed.
Yes, and the answer in my opinion is no.
Very good point of view.
In regards to the title: Would hussein qualify for national security clearances?
Agreed!
Thank you very much for choosing to post this commentary in News/Activism as opposed to Bloggers & Personal. First rate blogs like this should be posted as News/Activism, IMHO.
Asking the right question is a powerful thing. Very telling.
Henceforth, when summoned for jury duty, I will make it a point to tell the judge that I feel “empathy” for the victim.
Very subtle.
It wasn't until I pushed the reply button that I realized your full meaning: that Sotomayor would tend to feel "empathy" for the accused...
I believe this woman has the same disdain for America and it’s citizens as Obama does. She identifies herself as Puerto Rican first, even though she was born here.
In College Thesis, Sotomayor Appeared to Support Puerto Rican Independence
[snip]Ms. Sotomayor was born in the Bronx of Puerto Rican parents, and her pride in her roots is evident as she dedicates her paper “to the people of my island – for the rich history that is mine.”
Ms. Sotomayor’s apparent support for Puerto Rican independence reflected her concern over preservation of the island’s culture. She wrote: “The experiences of Alaska and Hawaii since statehood with cultural destruction has been indicative of the cultural loss Puerto Rico would eventual [sic] face if statehood for the island were chosen. Under the commonwealth status, there has been a gradual deterioration of the Spanish language among the Puerto Rican populace and a growing Americanization of the island.”
I support Puerto Rican independence for different reasons than Ms. Sotomayor. As a white male, I cannot state these reasons publicly.
Honestly, I don’t know enough about the subject to have an opinion. Sonia has probably never been to Puerto Rico...why such an attachment to the place?
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