Newsletter:

~Basil

Greetings!

To monitor the pulse of jurors' rights on a regular basis, I sort through hundreds of news alerts each month regarding jury nullification and related jury issues. It is highly unusual that one of them really raises my eyebrow, but that is precisely what happened just a couple of days ago.

I was surprised and encouraged to find an article about a mistrial that was declared just minutes after opening statements began. The primary reason for the mistrial was unrelated to the jury, but in deciding what to do about that issue, the trial judge in the case, Chief Judge Paul Chamberlain, also commented on problems with jury selection.

Jury selection in the trial of Mary Lou Bigford in Michigan lasted four days before opening statements began. In its opening statement, the prosecution referred to lab test results that were provided to the defense just two weekend days before the start of the trial.

The defense objected to the late introduction of critical evidence in the case. The prosecution had never mentioned it to the court throughout the jury selection process, even though it would likely warrant a continuance. Once a jury is selected, it becomes difficult to hold them for an extended period to continue the trial. Due largely to scheduling difficulties, the judge released the jury and declared a mistrial.

But according to The Morning Sun News, Judge Chamberlain had already been having misgivings about how the jury had been selected.
Specifically, he was concerned about the prosecutor's line of questioning during voir dire designed to weed out jurors who might exercise their right of conscientious acquittal by jury nullification:

"He then voiced concern with a line of question the prosecutor took during selection with potential jurors.

"There was an attempt by the prosecutor to steer away from jury nullification. That is what's been on my mind," Chamberlain said.

She did this, he said, by presenting scenarios wherein a juror may understand the law but not believe it's valid, and would therefore rule according to the juror's belief rather than the law. She then asked jurors if they would follow the judge's directions despite their own personal beliefs, Chamberlain said.

"It's the jury's power to nullify, the cases are replete," Chamberlain said. "It's a fact of professional life for trial counsel."

"I have to fashion a remedy," he said. "Unfortunately, and very unhappily, I'm declaring a mistrial.""
(Reference: Bigford Murder Trial: Mistrial in the Opening Moments)

In my eight years with FIJA, this is the first case I have heard of in which a judge didn't either willingly accept or wholeheartedly enable efforts to sterilize juries of fully informed jurors empowered to consult and act in accordance with their consciences.

That is not to say that other such cases do not exist, but they are likely very unusual. To see this rigging of a jury not only result in a judge scolding a prosecutor for such improper behavior (albeit after he accepted the jury), but also for those comments to be publicly reported, gives me even more hope that the jury can be restored to its rightful and intended role as the grand bulwark of liberty.

For Liberty, Justice, and Peace in Our Lifetimes,
Kirsten C. Tynan