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May 5, 2006

On the realities and respect for juries

I commented at length here about the procedural dynamics in the Moussaoui capital trial.  Today Adam Liptak has this interesting piece in the New York Times, which reflects more broadly on the work of juries in federal capital cases.  Here's a snippet:

[T]he [Moussaoui] case ultimately followed the pattern of most federal capital cases, which usually involve less spectacular crimes and more rational defendants.  In those cases, too, juries are reluctant to impose death sentences.  In the 136 capital cases the federal government has brought in the last two decades, 122 convictions have been obtained, according to the Federal Death Penalty Resource Counsel Project, a group that assists lawyers defending federal capital cases.  But the juries in those cases imposed death sentences only 49 times.

And the article closes with another reminder that, though many folks make a habit of attacking the work of judges, everyone seems incline to express respect for the work of juries:

Mary Jo White, who co-signed the Moussaoui indictment as United States attorney in Manhattan, said she was disappointed in the jurors' actions but "totally respectful" of them. Ms. White added that the jury had shown the justice system in a positive light. "It sends a very helpful message to the rest of the world about the American judicial system," Ms. White said. "Fairness is paramount.  It shows that in a highly charged case such as this, an American jury could reach this verdict."

May 5, 2006 at 07:36 AM | Permalink


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A handgun may be a firearm, but it also may be a club when used in “pistol whipping”, the objective distinction may be; is the handgun operable, does it have bullets or was a shooting or whipping intended by the assaulting party. The Justices were initially intrigued by the distinction Washington Sate Law makes between assault with a deadly weapon and assault with a firearm. However, the argument soon fell into the Neder harmless error analysis, where the State and amicus argued that Recuenco and Neder were the same.
But as pointed out by Justice Scalia in his hypothetical;
Suppose that -- that you have a statute, a murder statute, which applies the murder of a single individual, but -- but you have another statute with a death penalty called aggravated murder. And it's a different crime and it -- it requires the -- the killing of more than one person in -- in the same -- in the same event.
Let's assume a trial in which somebody came into a bank with a machine gun. Only one person came in, and five people were killed. But the prosecution only brought a prosecution for simple murder. Okay? And the jury comes back with a verdict for -- for simple murder.
Certainly a judge would not be able to say, well, no jury could possibly have found simple murder here without also thinking that this person was guilty of -- of this greater offense of -- of aggravated murder and, therefore, I'm going to enter a judgment of aggravated murder.
That's what the -- the defense says happened here, that there was just a verdict of -- of the lesser offense. That's all the jury found. It could have found more and maybe -- maybe in finding that, it -- it must have thought that the greater offense also existed, but it never came in with a verdict for the greater offense.
Now, tell me why what happened here is different from -- from the hypothetical.

Why has there been no mention of the release of the 58 pages of oral argument in Washington v. Recuenco.

Posted by: Barry Ward | May 5, 2006 8:20:43 AM

Professor Berman,

I realize that it may be a little off topic, but I cannot find any professor able to answer my question:

Is it obvious to everyone but me that non-citizens are guaranteed our constitutional protections. While I don't disagree that it's an ideal, is it necessarily the law? Are there court decisions that speak to this or does it simply go without saying?


Posted by: JRL | May 5, 2006 8:50:02 AM

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In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB