Here is another in the long line of legal fictions: that you get an impartial jury of your peers. Let’s leave aside the peer part for now, because there’s already been much study on the lack of any real peers in juries selected these days and focus on the “impartial” part.
Impartial, in this context, is supposed to mean someone who doesn’t come to the trial with any predispositions. Someone who is able to be fair, listen to the evidence, and conscientiously apply the law to the facts, regardless of whether one emotionally agrees with the result compelled by those facts.
In reality, we aren’t stone robots. Everyone comes in with preconceived notions. In these days of increasing polarity, we have ever stronger opinions about crime and criminal justice and especially those icky child molesters.
So we come to our legal fiction: rehabilitation. That’s when the judge asks an obviously biased venireperson enough questions that they eventually get the hint, no matter how stupid they are, and end up saying the magic words “I think I can be fair in this case”. Doesn’t really matter what they’ve said prior to that point, once we get to that incantation, the juror is deemed impartial and fit to serve on the jury.
You’d be a fool, however, to think that the juror has actually changed his or her views. Just ask Jose Felipe Velasco:
Jose Felipe Velasco insists Orange County Judge David A. Hoffer cheated him out of a fair trial by placing a juror on the supposedly neutral citizen’s panel after she repeatedly declared the defendant guilty before hearing any evidence.
But you knew that anyway from the title of this post. So how bad could it have really been? Very bad.
After an Orange County prosecutor gave an opening statement, Juror 112 notified Hoffer that based on her own experiences she believes criminals should forgo trials in such sexual assault cases and go straight to prison to spare victims additional turmoil.
This is, unfortunately, a very common reaction. The presumption of guilt is very strong.
The prosecutor then asked the juror: “You haven’t heard any evidence. How would you vote?” Juror 112 responded, “I would have to vote guilty.”
The judge asked if she could return a verdict of not guilty if the government couldn’t prove it’s case beyond a reasonable doubt.
“I don’t think I would be able to,” the juror replied.
The prosecutor tried again: “Let me ask you this flat-out. Let’s say the victim takes the stand [and] you flat-out don’t believe her. In fact, you think she’s lying. You look at her [and conclude] ‘I don’t believe a word coming out of her mouth.’ Are you going to convict this man anyway?”
Juror 112 responded before the first witness in the case had been called, “That depends. I still feel he was at fault.”
Had enough? Well, there’s more:
Hoffer, appointed to the bench in 2003 by Democratic Gov. Gray Davis, and the local government’s lawyer continued to ask questions and finally got her to say she “would try” to be a fair juror.
Over defense objections, the judge put her on the panel.
So, in his bid to get a new trial, Velasco was rebuffed because eventually the juror was berated and brow-beaten into saying “she would try to be fair”.1
Obviously, Velasco was found guilty and now, apparently, he has no review of his clearly illegal conviction.
They not only took this horse to water, but forced its mouth into the lake and made it swallow the company line. You might rationally argue that a prosecutor with a duty to ensure justice is done should not have pressed for the inclusion of this juror, but we already know that not all prosecutors are concerned with justice.
When you say you’re proud of the American system and that the system “works”, this is how it works.
[Update: Thanks to the comments below, we now have the actual opinion in this case. I have a follow up post on the opinion and the omission of certain "facts" from it and the reality that even judges engage in spin.]
- Why didn’t the defense exercise a challenge to unilaterally get rid of the juror? I don’t know. The article doesn’t give a reason and I’m not privy to the transcript or the proceedings. It’s possible that the defendant may have run out of challenges at this juncture. ↩