New - 22 September 2008
We the Jury, a novel:
It was final summation time in Denver, the opportunity for the lead attorney from either side to tell the jurors what had already been presented to them, but now boiled down into brief and hopefully memorable sound bites. New evidence would not be allowed in a summation, but instead what each side’s take had been on what really mattered in the evidence already presented. Once the summations were done, it would be time for the Judge’s instructions to the jury on what it could and could not consider, before the jury finally retired to deliberate.
Sophing was dressed for the part… a new pinstriped suit to match the always elegantly dressed prosecuting attorney. (As for the judge, he tended to wear tennis shoes and shorts under his robe. He assumed it was a lot cooler that way… and might be good if he ever had to make a run for it.) Sophing was also standing a bit taller than normal; one might have thought that he planned to do an excellent job in defending his clients.
The jurors were expecting little after Howell’s brilliant oratory and the use of every trick of the trade to lead them in their subsequent discussions. In point of fact, the jurors were looking faintly bored. Even the courtroom was calm. In all respects the trial had apparently been going pretty much according to script… the latter being one of the great essentials in ancient and modern trials. No legal jurisprudence system worthy of the name ever wants to be surprised at trial… it just isn’t done… except in Hollywood where fantasies are universally preferred.
Nevertheless, every so often a surprise does happen.
“I beg of you,” Sophing said, with apparently earnest sincerity, “as jurors, to put aside all of the emotional appeals, the misdirection of clever manipulations of the language by the prosecutor and his coached witnesses. I am asking you specifically to disregard the dramatic and theatrical show of the District Attorney’s attempts to dazzle you. What you must do, as responsible jurors, is to look instead at the evidence, and never, never stray from your sense of justice, of right and wrong, of what really matters.”
Sophing stopped for a moment, his hand holding his papers and notes slowly lowering itself to his side. He turned momentarily and looked to where the defendants and Lisa were sitting. Then he looked at Howell. Turning back to the jury, he took a slow, deep breath.
“I urge you further to consider in your deliberations, all of the possibilities, including those not specifically presented to you thus far -- which for various legal reasons have not been part of this trial.”
The faint smiles on Howell and Starling’s face were suddenly replaced by expressions of concern. Lisa took a very deep breath, even crossing her fingers.
“As members of the jury,” Sophing continued, being as precise and articulate as humanly possible, “You have the absolute right to acquit, no matter the law. You have, in fact, a right, a responsibility to judge the law. You have a right and a duty to seek all of the evidence, not just that portion of the evidence that has been arbitrarily allowed by this Court. You are duty bound to seek all information that might aid you in administering justice.”
Okay. That pretty well wrecked the peace accords… wrecked them as effectively as a massive barrage by battleships prior to a landing on the scale of Normandy. The Court erupted in serious bedlam. Howell was out of his seat a trifle faster than the judge, to scream his outrage. But then again, Howell had had more practice, leaping to his feet. Starling seldom had to exhibit any physical response. This time, however, he did manage it.
“Objection! Objection,” Howell yelled, struggling to add some useful reason for objecting. The latter turned out to be something on the order of, “Not in evidence.”
Starling was on his own tangent, “Mr. Sophing!”
Sophing glanced at the judge, just long enough for Starling’s facial expression to register his utter contempt for the errant attorney. Sophing then turned back to the jury.
“The Defendant’s experiments, on the basis of any law of science, could not account for the explosion. It is clear that the explosion was intended by other vested interests to prevent the success of valuable research and simultaneously discredit via deceit and misinformation the legitimate research efforts of my clients.”
There was a corresponding doubling of the decibel level, so much so that one could hardly hear the pounding gavel, or Starling’s yelling, “Order in the Court! Order in the Court!” When there was a slight drop in the bedlam, Starling ordered, “Objection sustained! Mr. Sophing! In my chambers! Now!”
Sophing was astoundingly cool as he turned away from the judge and made a momentary eye contact with Lisa… who was now fairly beaming.
Turning back to the judge, Sophing answered, “I don’t think so.”
Starling, who was already on his feet and half way out of the courtroom, stopped in mid-movement, staring in stunned amazement at Sophing. Howell had been up and ready to head for the judge’s chamber as well, but was now caught in mid-stride. Both watched as Sophing looked the judge in the eye and said in a low and penetrating voice… the kind that really carries and is distinctly heard, “This is a matter for an open court. The jury must be apprised of its right to acquit and ignore any law it thinks unjust. This includes a discussion of the Court’s arbitrary and capricious restrictions on the evidence thus presented.”
Starling, taken aback by the unorthodox tactic, could only glower at his nemesis. Slowly, grasping for straws, he turned to the Bailiff… on the theory that maybe, just maybe the Bailiff would do as ordered.
“Bailiff! The jury will retire! Now!”
Bailiffs are in general not known for original thinking and any even slight tendency to question authority. They are the front line troops in some respects, and the rule is that the front line troops are seldom allowed discussion privileges as to just exactly when and where the charge will commence.
Accordingly, the Bailiff moved quickly as Starling and Sophing stared at each other with something far exceeding gross contempt. Howell, displaced out of the two-way staring contest, could only fume and stare darts of anger and disbelief into Sophing’s back. The jurors, who might well have preferred to stay and watch the real fireworks, could only make quick and decisive glances at the three defiant men. Within moments, they were out of the room.
Lola did manage to ask, “Are we finished?”
They left behind a courtroom that was being cleared of spectators (including the media who were crying foul at being denied the best stuff they had seen since a well-known citizen had found his young daughter dead in mysterious circumstances). The only people who made no movement toward the exits were Sophing, Starling, and Howell… and the court reporter, the latter who hadn’t a clue of what she was currently supposed to be recording. They didn’t teach this kind of stuff in court reporter school… and with good reason.
Things did eventually calm down. With specific limitations on who and what would be allowed in the partially filled courtroom -- opinions and the willingness to voice such opinions being absolutely forbidden – things were notably under more restrictive control. Nevertheless, certain things had to be said. It was as they say, a matter of tradition and prior law.
Starling was talking directly to the jury. Bailiffs stood behind any and all attorneys with a vested interest in the outcome of the trial standing by in order to ensure an uninterrupted conversation between the Judge and the Jury. This was the traditional instruction to the jury in which judges like to game the future deliberations of the jury. It was a matter of ensuring the jurors were acquainted with the relevant aspects of law… and as it often turned out, with the judge’s particular interpretation of the law. A mistrial might have been the better part of discretion, but political contingencies and the arrogance of the judge to think he could now undo what had been done by the sheer power of his official will undoubtedly influenced the decision to continue the trial. Truth be known, it was a calculated risk.
“Any so-called alternative theory,” Starling continued, “is not admissible in evidence, and must not be considered in your deliberations. You must forget and totally ignore the defense attorney’s unfortunate and highly irregular outburst. You must restrict yourself to only those points of law, testimony, and evidence that have been presented in court. Under no circumstances are you to consider any conflicting or alternative theories involving other allegedly guilty parties. Furthermore and most importantly, you are not here to judge or ignore any laws – that is the work of the legislature. You are only to appraise the evidence and come to a verdict.”
Starling in London, was saying pretty much the same thing.
“You have heard the evidence presented here; you have heard Lieutenant Cook, Constable Reed, and Constable Whiting testify to the great, disturbing tumult in Gracechurch Street, and that Penn was speaking there in great agitation, waving his arms about and inciting the people against the king, his peace and his dignity. You have heard that Captain Mead was there, yet not stopping that prating fellow. The evidence is very clear that they did disrupt the King’s peace. They would not yet be stopped, if they were not removed, but would go on into the night.”
Once you’re on a roll, you’re on a roll. In Denver, Starling added, “The severity of the crime for which the defendants are charged, demands of you as jurors to endeavor to use your most discriminating and conscientious judgment. The question of guilt or innocence of the defendants is critically important in dealing with the threat posed against everyone in society. Only by virtue of a clear, definitive verdict can Law and Order in this country be upheld.”
Or presumably in any other country. “The defendants took no notice of their actions, caring nothing for the dangers and inconveniences caused by their silly ranting and mad raving. For what do they care of the threat to your health, as long as they can continue their silly canting? They are clearly guilty of contempt and by a guilty verdict the defendants will be convicted and justifiably confined to prison. This is essential for the public welfare, to protect the citizenry from dangerous agitators, to ensure the honor of the Crown of England.”
“You, the jurors, have in many respects the responsibility for the defense of liberty, by ensuring to the very best of your ability that the guilty are punished, that the victims of crimes receive closure and restitution, and that the innocent are exonerated.”
“Therefore, get ye to the jury room and agree quickly to bring in a finding of guilty that we may be done with this tiresome matter and that you as jurors may find relief in food and drink. Bailiffs, take the jurors up.”
“Clearly,” Starling added, as a concession to modern times, “You may take sufficient time in your deliberations. However, if necessary, I may require you to deliberate this weekend. You will begin first thing tomorrow morning.”
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