JUST THE EVIDENCE, MA'AM

Corrente raises the specter of a frightening trend among juries and asks, "Just how widespread is this?"

On Tuesday, the Colorado Supreme Court heard argument on the issue of whether Harlan's death sentence was correctly overturned by a lower-court judge when it became known that Harlan's jurors researched biblical passages when not in deliberations and then brought at least one Bible into the jury room during sentencing deliberations in order to persuade one holdout juror to vote for death.

Adams County District Judge John Vigil noted at the time that "the biblical passages involved not only encouraged the death penalty but required that it be imposed when another life is taken. The passages also directed jurors to take guidance from and obey the government. They left jurors with no discretion." The passages cited - "fracture for fracture, eye for eye, tooth for tooth"; "whoever kills a man shall be put to death" - contradict Colorado's sentencing scheme in many ways.

As I was confident it would, just a few minutes of Googling official state and local juror instructions demonstrated to my satisfaction that the actions of the above-mentioned jury were egregious violations. Just a sample of what I found:

Illinois State Jurors Brochure:

Jurors are expected to use the experience and common sense they possess, but are not to rely upon private sources of information. Therefore, you should never inspect the scene of any occurrence involved in a case except under supervision of the Court. The jury's verdict can only be based upon the testimony heard and evidence viewed in the courtroom during the trial.

West Virginia state recommended civil jury instructions:

Any personal opinion which you, or any of you, may have as to facts not established by the evidence in this case cannot properly be considered by you as a basis for your verdict. As individuals you may believe that certain facts existed, but as jurors sworn to try this case and to render a true verdict on the law and the evidence, you can act only upon the evidence which has been properly introduced to you at this trial. Any personal opinion which you, or any of you, may have as to facts not established by the evidence in this case cannot properly be considered by you as a basis for your verdict. As individuals you may believe that certain facts existed, but as jurors sworn to try this case and to render a true verdict on the law and the evidence, you can act only upon the evidence which has been properly introduced to you at this trial.

West Virginia state recommended criminal jury instructions:

The evidence in this case consists of the testimony of witnesses who have appeared before you and testified and the exhibits which have been introduced in evidence and which have been shown to you.
…
You must not permit yourself to be influenced by sympathy, passion, prejudice or public sentiment for or against the defendant or the State. All your deliberations should be based solely upon the evidence presented to you in the trial and the law as given to you by the Court.

Muskegon, Michigan county instructions:

Do not conduct your own investigation of the case. It would also be a violation of your duty as a juror to conduct any investigation of the case. As a juror you must not become an amateur detective. For example, you must not visit the scene of an accident, an alleged crime, or any event or transaction involved in the case. You should not conduct experiments or consult any other person or reference works for additional information.

A few years ago I was foreman of a jury in Dallas, Texas, that was considering a verdict on a $180 million+ class-action lawsuit by insurance agents against a third-party insurance company. We walked into the jurors room with most of the jury ready to hand over the millions to the agents, most of whom were small-town Alabama, Mississippi and north Florida reps with little or no education beyond high school and who had been persuaded by their employer company to invest their residuals in a kind of pyramid scheme. When the company failed, they were out their invested residuals. They seemed very sympathetic people compared to the $1000 suits sitting at the defense table. But our instructions were very clear, and the plaintiff's case was based on practically nothing more than their inability to collect from the company that actually employed them and their recourse to the deep pockets of the company that eventually bought the policies. As juror after juror related their personal sob stories about evil insurance companies, I had to continually remind my fellow jurors that our verdict had to be based strictly upon the evidence presented in court and not our personal prejudices or private knowledge. I did that because I'm a progressive who believes in the rule of law. We eventually returned a verdict in favor of the defense, but my experience leads me to believe that Corrente may be correct in assuming that this happens a great deal more often than is suspected.

"Nullification is generally not a clearly-defined right protected by legal statute. Rather, it is an inherent aspect of the jury system under common law, sometimes justified as a safeguard of last-resort against wrongful imprisonment and government tyranny." (More here.) In such cases, I might be inclined to be a rebellious juror myself.

The Colorado case hardly fits that description and scares the bejesus out of me.