Vol. 27 No. 14 · 21 July 2005
pages 15-17 | 2981 words
From Victim to Suspect
Stephen Sedley
- The Trial: A History from Socrates to O.J. Simpson by Sadakat Kadri
HarperCollins, 474 pp, £25.00, April 2005, ISBN 0 00 711121 5
A modern criminal trial can be exceedingly inconvenient. The more fairly conducted it is, the less certain the outcome. The accuser can end up all but in the dock; the accused may walk away from a true bill. Churchill, well aware of this, wanted the Nazi leaders, when they were finally captured, to be taken out and shot. Roosevelt initially agreed. It was Stalin, who had found that trials could be exceedingly satisfactory in both procedure and outcome, who compelled first Roosevelt and then Churchill to take part in setting up the Nuremberg tribunal. Justice Robert Jackson, the US prosecutor, was in consequence able to describe the trial as ‘one of the most significant tributes that power has ever paid to reason’, and the British prosecutor, Sir Hartley Shawcross, to say without blushing: ‘There are those who would perhaps say that these wretched men should have been dealt with summarily without trial . . . But that was not the view of the British government.’
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Letters
Vol. 27 No. 17 · 1 September 2005
From Robert Kroninger
Stephen Sedley says that, ‘in spite of recurrent criticism’, the right of a jury to refuse to return a verdict ‘against their conscience’ is ‘better than its alternatives’, and brings ‘a genuine element of democracy into the courtroom’ (LRB, 21 July). In the US that baneful practice is promoted as ‘jury nullification’. It should be discouraged for several reasons. First, conscience and prejudice are often indistinguishable, as was the case for two centuries in the South, where it was impossible for someone white to be convicted of murdering someone black. Second, it extends the jury’s sole proper concern, guilt or innocence, to include matters relevant only at sentencing, of which they are ignorant. For example, only in rare cases are juries permitted to know a defendant’s prior history. And so a lawyer may argue to the jury, without fear of contradiction, that his client has suffered enough from the humiliation of being publicly accused and tried, even when the defendant is in fact a hardened criminal. Such pleas succeeded in my courtroom more than once. Third, weeks of jury selection have become the norm as lawyers seek out jurors who will vote according to their conscience, as guided by counsel. Psychologists and social counsellors are often at the table with the lawyers, the goal being to select a jury not with open minds but with empty ones.
Robert Kroninger
Inverness, California
