From Victim to Suspect

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