Well-Hung Juries

As a practicing lawyer (although not a litigator), I’ve had many occasions to watch our system of justice at “work.” There are lots of arenas for improvement, and I’ve watched big defendants with deep pockets mercilessly uses our courts to run up opponents’ (especially those with not-so-deep pockets) legal fees through unnecessary motions and excessive requests for discovery… knowing that absent a specific statutory or contractual right, they will never have to pay their opponents’ legal fees. How nice it would be if courts were able to award legal fees against such abusive practices, but alas, this is one of the tragic flaws of the American judicial system. But there is one part of our system, trial by jury, that still sort of works. Folks on juries, however ill-prepared some might be for this service, tend to care about doing the right thing.

Our system of justice rails against jury tampering, making it a serious felony, and jury misconduct is often grounds for a new trial. Juries are our humanizing safety net, and globally, legal systems have often resorted to jury trials in an effort to reform legal systems that once decided cases based on the dictates of the strong-arm government in power. So it was when the Soviet Union fell, and in 1993, Russia adopted for greater transparency and balance by adding juries to their legal mix. But Russian leaders have never really been comfortable with the ability of laymen to interfere with their efforts to derail and contain, often eliminating completely, defendants that the state has labeled “enemies.” The sad reality, however, is that the Russian government has worked harder at subverting their own jury process than in encouraging it; the old Russian philosophy – that the government’s will shall always be followed – has seriously disrupted this trial-by-jury system, particularly in the criminal courts.

The statistics prove out how different criminal actions in Russia are under the jury system (with a 15-20% acquittal rate) from the judge-dominated processes of old (with about a 1% acquittal rate). The jury system is slipping away, according to the November 15^th New York Times: “Some juries skeptical of a prosecution have been dismissed on the verge of important verdicts. When they vote to acquit, their verdicts are routinely overturned by higher courts, allowing prosecutors to try for a conviction before another jury. Lawmakers are continuously chipping away at what types of criminal offenses merit a jury trial… Meanwhile, the number of jury trials remains so small — around 600 a year out of a total of more than one million — that they vanish into a justice system that in some important ways has changed little since Soviet days.”

For those sitting on juries, being approached by intimidating “operatives” in civilian clothes with advice to convict the “awful” defendants… or simply to “get sick and don’t show up”… are more commonplace than anyone on the outside might believe. Authorities are also notorious for racking up a multiplicity of criminal charges after a defendant is incarcerated, necessitating new trials on a rolling basis, even though the defendant’s ability to commit the charged criminal activities is at best suspect (because such crime are committed while he/she is in jail awaiting trial). A favorite tactic of prosecutors is to paint the defendant as such a bad guy that the jury is likely to convict “just because.”

And so it was in the trial of an oil oligarch, billionaire Igor V. Izmestiev, who wouldn’t play according to Prime Minister (then President) Putin’s rules. The criminal system was used to send a signal to other oligarchs to play ball. The charges were serious: “Whatever the reason, charges against Mr. Izmestiev accumulated until they included attempting to bribe a Federal Security Service agent, organizing and leading a criminal gang, ordering five murders and six attacks, burning down a printing business, and attempting to kill Ural Rakhimov [Izmestiev’s partner and son of a Putin-enemy oligarch]. A new charge, terrorism, was tacked on in 2008. The jury trial was closed to the public, another move that caught the attention of legal activists.” Times.

At least four jurors were willing to tell the NY Times that they were not convinced Izmestiev was really guilty; outsiders shared the view as well: “‘I don’t know if he is guilty or not,’ said Lev A. Ponomarev, founder of the group For Human Rights, ‘but I can say for sure that it is a political question.’… In the jury room, a few on the panel were beginning to say the same thing. They were split, occasionally arguing so passionately that the bailiff had to come in, said Lidia S. Vasilyeva, one of the jurors. She felt that Mr. Izmestiev was probably guilty of some wrongdoing, but not the list of charges he was facing. ‘You don’t get that kind of money without getting your hands dirty,’ she said, ‘but everything they tried to hang on him, it was absurd.’” Apparently half the jury couldn’t see the conviction either.

The trial dragged on for months, deliberations longer. Some jurors dropped out, others became sick, but the court kept them in “deliberations” nonetheless. Fall turned to winter turned to spring: “But the filaments that held them together were fraying. The fourth juror submitted a note saying she was leaving for Siberia, and offering to return to Moscow if testimony resumed, said her fellow jurors. On May 12, the panel was dismissed.” The case is still pending, but the results this time are much more certain: “This spring, while the jurors were playing cards in the jury room, Russia’s Constitutional Court ruled that terrorism cases were too important to be trusted to ordinary citizens — they are, the court reasoned, too vulnerable to intimidation…. So this time, the verdict will be decided by a panel of three judges.” Times.

As Americans, we have very reason to be proud of a legal system, however flawed, that at least strives for justice. A nation without clear laws followed by all is indeed a scary place.

I’m Peter Dekom, and what we have here in the United States is a precious system that we should never take for granted.