I’ve been practicing law for a long time on both sides of the criminal bar. It’s rather late in my career to start wondering about a practice that is accepted as the norm but I never really thought about it until yesterday. It’s like you go along with something because that’s how it has always been done.
If you are from the Boston area you don’t think twice about jay walking or walking against the light because that is how you’ve lived your life. It’s only when you find yourself in a different situation that you realize that all your life you’ve been doing it wrong. I learned a long time ago when I was in DC with some friends from other parts of the country and in the middle of the block saw the restaurant we were looking for across the street. I stepped off the sidewalk into the street to get there, using as a guide the well known idea that the shortest distance between two points is in a straight line. I was taken aback when my friends didn’t follow. They walked to the cross-walk.
This brings me to this anomaly in the law which I just discovered. When the jurors asked the judge if they must also be unanimous to find a racketeering act “not proven, the judge responded to their question, “The answer is yes, to find a racketeering act proven it must be unanimous, that is you all must agree that it is proven. If you find that a racketeering act is not proven, that decision must also be unanimous.” All the lawyers agreed.
My immediate reaction went against my years of training. I thought the judge was wrong. What I was unaware of at the time was the judge then added that if they could not be unanimous in their finding then they should move on to the other charges before them. When I learned that I said, “yes, that’s what you do, you see what you can unanimously agree on and then go back to those you don’t.”
But all day I thought of my visceral reaction, why did I think the judge erred? What was it that in common sense went against all my learning. How was I thinking differently than those millions of lawyers who were much smarter than I who have accepted what the judge says as being what should happen?
A few things came to my mind, “presumption of innocence.” Doesn’t that carry on through the trial until the prosecution convinces the jury it must no longer presume innocence? When does the jury chuck that aside? It disappears when the prosecution convinces all of the members of the jury beyond a reasonable doubt that the defendant committed the crime. If the prosecutor fails, then the presumption holds. Or does it?
I tried to analogize this to other situations in life to get a clearer understanding of my befuddlement. What situations could I be in similar to that of a prosecutor, having an obligation to bring something about, and, what are the consequences if I fail to do that.
In the military I had an obligation to show up for guard duty. If I didn’t show up I’d be punished severely. In school I had the obligation to pass my tests, if I didn’t I’d suffer the consequences. Failing in ones obligation will usually result in adverse happenings to oneself.
If the prosecutor fails to convince all the jurors of a defendant’s guilt, that’s not necessarily the case. If the prosecutor only can convince 50% of them, she doesn’t suffer but gets to try again. The rule is she must convince all of them so having failed, why is she allowed another go at it?
In a race, my burden if I am to win is to cross the line first. If I don’t, I lose. In a spelling bee, I have to spell the word correctly and if I don’t I’m out. If I undertake to do an act and I fail I usually don’t get a second chance to do it over again.
Why then does the failure by a prosecutor to carry her burden which is to convince all the jurors beyond a reasonable doubt of a defendant’s guilt not result in an acquittal? If she only convinces one juror, even though she’s suppose to convince twelve, she gets to do it over again. Isn’t that putting a defendant on trial twice, or even more, for the same crime?
Doesn’t it make more sense if the prosecutor fails in its burden that the defendant’s presumption of innocence is upheld and the defendant should be found innocent? Telling the jury it must be unanimous in finding that an act is not proven sends a mixed message, it’s as if the defendant had a burden to do something which he doesn’t.
I’m sure I’m not thinking straight. I am just recovering from my eight week immersion in work. I’m suddenly thrown back into my life of leisure. You do understand how this tries one’s soul.
I just toss this out for your consideration at this time. If you have any way to set me back on the straight path with all my legal colleagues let me know.