Today’s date, Sept. 5, marks an important historical event in the development of the right to trial by jury. On this day in 1670, William Penn and William Mead were prosecuted in England for “unlawful assembly,” “disturbing the peace,” and “riot.” These “crimes” arose from Penn having preached near Grace Church to a meeting of several hundred Quakers. 

It was a peculiar trial in many respects. The court, for example, denied Penn’s request to simply read the indictment. But the trial was most notable for the way in which the court tried to bully the jury. When the jury did not come back with guilty verdicts, but a verdict that simply said “guilty of speaking to an assembly,” the court refused to accept that outcome and ordered the jury to return to their deliberations. When the jury returned with a verdict that acquitted Mead of all charges, the court ordered the jury to prison! Next, the jurors filed a writ of habeas corpus challenging the legality of their imprisonment. 

Soon after, an important legal precedent was set for jury independence: jurors cannot be punished for voting their conscience. That’s the story behind “Jury Rights Day.”

Alas, the jury trial has been in a steady decline here in the United States. 

We started out strong. Our Constitution says, “the Trial of all Crimes, except in Cases of Impeachment; shall by by Jury.”  And our second president, John Adams, said, “It is not only [the juror's] right, but his duty … to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” 

But these days, the government pressures many defendants to enter into plea bargains so fewer and fewer cases go to trial. And the government no longer wants jurors to vote their conscience. Indeed, it goes so far as to arrest people for distributing pamphlets that discuss these matters. 

We need policies that will once again honor the role that juries play in securing justice.

For a good article, go here.  For a good book, go here.

Jury Rights Day is a post from Cato @ Liberty - Cato Institute Blog

The feds are seeking to jail 78-year old Julian Heicklen for distributing pamphlets.  Heicklen knows that jurors are supposed to be able to vote their conscience in criminal cases — so he distributes pamphlets on that subject near the federal courthouse.  The feds are evidently worried about the contents of those pamphlets and assert that Heicklen’s conduct amounts to “jury tampering.”  But if Heicklen just gave the pamphlets to anyone and everyone, as he claims, without attempting to sway the outcome of any particular case, his conduct is free speech, plain and simple.   Heicklen should get a jury trial to fight the free speech violation — since our Constitution says, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,” but prosecutors are going to invoke wrongheaded precedents that say this case can be tried before a judge, not a jury.  Oh, and the police arrested another guy for simply videotaping Heicklen’s arrest.  No pamphlets, no photography, no jury trial. 

Cato co-published a book in defense of jury nullification in 1998.   More here and here.   (I am betting that books, blog posts, and law review articles are still legal should this post reach readers in New York City, but we’ll see about that.)

Arrested for Pamphlets is a post from Cato @ Liberty - Cato Institute Blog

This morning the Supreme Court issued its long awaited decision in the case of Jeffrey Skilling.  The most important aspect of the case concerned the so-called “honest services” statute.  That law has been an amorphous blob that federal prosecutors could suddenly invoke against almost anyone.  All nine justices acknowledged the law had problems, but only three–Scalia, Thomas, and Kennedy–said the law was unconstitutionally vague.  The other six justices bent over backwards to “save” the law from invalidation–they ruled that the law should be narrowly interpreted.  Here is, I think, the most telling passage from the majority’s ruling:

“As to arbitrary prosecutions, we perceive no significant risk that the honest services statute, as we intrepret it today, will be stretched out of shape.”

Instead of strict rules and limits on government power, the Court is content to offer leeway to the prosecutors–some risk of arbitrary prosecutions is acceptable you see. 

The burden ought to be placed on the government–legislators and prosecutors ought to be able to justify every single case.  Instead, this Court needs to be persuaded that a significant risk of abuse exists.  Here is a passage from a Supreme Court case from years ago that gets it right:

“A criminal statute cannot rest upon an uncertain foundation.  The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue.  Penal statutes prohibiting the doing of certain things, and providing a punishment for their violation, should not admit of such a double meaning that the citizen may act upon the one conception of its requirements and the courts upon another.”

The second issue in the case concerned Skilling’s right to an impartial jury trial.  And it came as no surprise that the Court embraced a prosecutor-friendly view of the Sixth Amendment.  Skilling argued that the climate in Houston following the collapse of Enron was so hostile that he should have been granted a change in venue.  He’s right about that.  The prosecution should be indifferent as to whether they present their incriminating evidence in Houston or another city.  Instead, the Court shifts the burden to the accused and sniffs, “sorry, you have not clearly proven to us that you were prejudiced by biased jurors.  If someone could prove beyond a reasonable doubt that they had a biased jury, well that would be another story.” 

Here’s a modest proposal: This  summer each justice should represent some persons accused of crimes. 

For additional background, go here.

The Supreme Court’s Decision in Skilling is a post from Cato @ Liberty - Cato Institute Blog

In Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009), the Supreme Court gave trial courts more latitude to dismiss a lawsuit at a very early stage, before the parties have had a chance to engage in discovery (the often lengthy and expensive fact-finding stage of civil litigation), if judges think the suit is not founded on “plausible” allegations of wrongdoing. 

There’s a rich, angry debate about the effect the decisions will have on dismissal rates of meritorious suits in lower courts. But the consensus among academics seems to be that both decisions will trigger a sea-change in lower court practice—one deeply unfavorable to plaintiffs.

We won’t know the real effect of these decisions for many years to come. But a 2007 study by the Federal Judicial Center on the effect of a trio of similarly controversial 1986 Supreme Court decisions (known as the “Celotex trilogy”) raises questions about dire claims that Twombly or Iqbal will dramatically change lower court practice.

The debate over the Celotex trilogy in the 1980s is eerily similar to today’s debate over Twombly and Iqbal. Responding to concerns that juries award arbitrarily large judgments against corporate defendants, the Celotex trilogy gave lower courts more latitude to grant summary judgment—that is, to toss lawsuits at the end of discovery, before a case gets to a jury, when the judge thinks there is insufficient evidence to justify a jury trial. Many academics complained that the cases would result in a radical sea change in lower court practice—one that benefited corporate defendants at the expense of plaintiffs.

The FJC’s 2007 study is the most comprehensive study of the effect of the decisions to date. Based on data drawn from 15,000 docket sheets in randomly sampled terminated cases in six district courts, the FJC found (as expected) that, before and after the trilogy, summary judgment filing and disposition rates vary significantly from circuit to circuit and between types of cases. After controlling for differences in filing rates across circuits and for changes over time in the types of cases filed, the authors found that “the likelihood that a case contained one or more motions for summary judgment increased before the Supreme Court trilogy, from approximately 12% in 1975 to 17% in 1986, and has remained fairly steady, at approximately 19% since that time.” Moreover, between 1975 and 2000, “no statistically significant changes over time were found in the outcome of defendants’ or plaintiffs’ summary judgment motions, after controlling for differences across courts and types of cases.” Indeed, despite anecdotal claims that Celotex prompted a significant increase in summary judgment in civil rights cases, the authors found “no evidence that the likelihood of a summary judgment motion or termination by summary judgment has increased” in civil rights cases since 1986.

It’s easy to overstate the FJC’s findings. (The data tell us nothing about the quality of summary judgment decisions before or after Celotex, and shed no light on disposition rates at a micro-level, i.e. in product liability actions, as opposed to other tort actions, or Title VII actions, as opposed to other civil rights actions, for example.) The study nonetheless lends some plausibility to the view that Celotex was less a catalyst for change than a ratification of preexisting lower court practice that had evolved largely in spite of the Supreme Court and which the Court was, and is, largely powerless to control.

It’s easy to think of reasons why trial courts’ summary judgment practice might evolve independently of the Supreme Court. A surprisingly large number of trial court decisions, including grants of partial summary judgment, are not immediately appealable—and the pervasiveness of settlement means many of these decisions are never appealed. Intermediate appellate courts, moreover, affirm trial court decisions at an incredibly high rate. And the Supreme Court, which takes only about 80 appeals a year, has dramatically limited capacity to police the innumerable summary judgment dispositions made daily throughout the federal court system. The upshot is that trial courts, as a practical matter, have long had wide discretion to decide even pivotal motions, like summary judgment, with relatively light appellate oversight.

Are Twombly and Iqbal a replay of the Celotex trilogy? Only time will tell. But what we know, to date, about the Celotex trilogy suggests that, whatever you think about Twombly or Iqbal, strong claims about the influence of either decision may well overstate the Supreme Court’s power and influence over trial court practice.

Twombly and Iqbal: Reality Check is a post from Cato @ Liberty - Cato Institute Blog