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The death of the presumption of innocence
A dirty secret of the American judicial system is that juries are hardly fair and impartial
 
Jury selection these days is done with a wink and a nod.
Jury selection these days is done with a wink and a nod. (REUTERS/Art Lien)

Imagine you are a defendant awaiting trial on criminal charges that could send you to prison for the rest of your life. You are sitting at the counsel table during voir dire, the process by which a jury is selected before a trial.

The prosecutor asks a potential juror: "You haven’t heard any evidence. How would you vote?" The potential juror responds: "I would have to vote guilty."

Your trial judge pipes up. He's supposed to ensure that you receive a fair trial and that the jurors who will sit in judgment upon you are neutral, objective, and willing to see and hear the evidence with an open mind. The judge asks the prospective juror: "Could you return a verdict of not guilty if the government doesn't prove its case beyond a reasonable doubt?" The would-be juror responds: "I don't think I would be able to."

The prosecutor — who wants this juror on the panel because he wants to convict you — presses on. He asks the juror: "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?"

The potential juror responds: "That depends. I still feel he was at fault."

How would you feel if this juror were allowed to join the panel that determined your fate? Would you feel as though you had received a fair trial by an impartial panel, as the Sixth Amendment commands? Or would you feel that the trial judge had failed to protect your presumption of innocence?

My guess is you would feel cheated. I know I would. But yet this precise scenario unfolded in California in 2009. This juror was allowed to serve on this trial. And to date, no judge has declared it a violation of the defendant's constitutional rights.

Now, in this particular case, the defendant, Jose Felipe Velasco, was accused of an extremely heinous crime. He was an alleged serial child rapist who had gotten a 14-year-old girl pregnant after having some form of sex with her 21 times. But that should not change our minds about whether this man should be presumed innocent and be entitled to a fair trial. Indeed, this is precisely why we have constitutional rights in criminal cases — so that fairness and due process come even to the despised.

R. Scott Moxley, a veteran reporter and columnist for OC Weekly, brought this story to national prominence this week — and it's a remarkably ugly picture in every way. Not only were the charges awful, not only is this defendant as unsympathetic a figure as the criminal justice system churns out, but the way the case was handled was ignoble, too. Thousands of years' worth of the presumption of innocence shouldn't go out the window just because a defendant is accused of heinous crimes.

The potential juror in the case, known today only as Juror 112, was permitted to sit in judgment upon Velasco only after she promised — after extensive questioning by the prosecutor, and over the objection of defense attorneys — that she thought she could "try" to be fair to the defendant. This "promise" was good enough for the trial judge, a former prosecutor, as well as two federal judges who later reviewed the transcript to determine whether Velasco's Sixth Amendment rights had been violated.

What were these judges thinking? We'll never really know. Unlike Juror 112, the jurists did not volunteer any candid assessments of the situation. They did not fully explain how any reasonable person, reviewing the transcript of the jury selection process before Velasco's trial, could have come away from it believing that this juror was going to give the defendant the benefit of all reasonable doubts. It was enough, they said, that she pledged to "try."

The dirty secret here is that what happened in this case happens every day in courtrooms all over the country. Judges and lawyers are desperate to seat juries, while potential jurors are desperate to avoid jury duty or to put their stamp upon the proceedings. As a result, the business of selecting jurors occurs with a sort of wink and a nod. Jurors are asked to put aside whatever preconceived notions they have about a case — or about justice generally, or about the defendant in particular — and so long as they say they will do so they are allowed to join a panel that determines, in some cases, who lives and who dies, and who goes to prison for 123 years to life.

Sometimes, as we see here, the benefit inures to prosecutors. Velasco's prosecutor wanted this juror on the panel because he knew that she would vote to convict the defendant. And so he attempted to "rehabilitate" her in the eyes of the judge. Think about the metaphysical ramifications of that: we ask citizens, like this juror, to lie about their open-mindedness so that we may place them on juries where they then are charged with determining which witnesses are lying during their trial testimony.

But sometimes this fuzziness during voir dire helps the defendant. I will never forget Michael Tigar, the greatest trial lawyer I ever saw, save Oklahoma City bombing defendant Terry Nichols' life during jury selection when he convinced a juror who was opposed to the death penalty (and thus technically ineligible to sit on a capital jury) to keep an open mind about it. On and on the questioning went until she promised to do so. And then, guess what? She was likely one of the jurors who refused to recommend a death sentence for Timothy McVeigh's co-conspirator.

Why does it matter if a child rapist is judged by people who consider him guilty before they have seen any of the evidence against him? Because the presumption of innocence goes back thousands of years, to the Old Testament, to Greek and to Roman law, and to English common law, from which American law was born. Because the United States Supreme Court, 120 years ago in a case styled Coffin v. United States, decreed that "the principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our current law."

That is still the law of this land. It has not since been overturned. There are no exceptions to that rule in cases of alleged murderers or child rapists. Judges and jurors don't get to decide when they will honor this rule and when they won't. The "rehabilitation" of jurors like Juror 112 may have sped up the pace of Velasco's trial but it created a result that violates the Constitution and is unworthy of any respect.

The lesson here isn't that Juror 112 should have just kept to herself her visceral prejudgment of the case. The lesson is that our justice system needs to react more justly when citizens like this are so candid in declaring their unworthiness to serve.

 
Andrew Cohen is a contributing editor at The Atlantic, a fellow at the Brennan Center for Justice, and a legal analyst for 60 Minutes and CBS Radio News. He has covered the law and justice beat since 1997 and was the 2012 winner of the American Bar Association's Silver Gavel Award for commentary.

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