Why the Mummery Matters

A couple of weeks ago I took someone to task for criticizing the "legal mummery" involved in the Supreme Court deciding a case based on a particular record.  The case at issue there involved one kind of mummery, but the fact is, the legal system is full of sound and fury that, often, signifies nothing.  A few recent decisions makes the point.

Early last month, the Fourth Circuit dealt with a case where a prison inmate was charged with possessing two "homemade weapons" in his cell.  On one item there was no dispute it was a weapon, but the defendant argued he didn't possess it.  On the other, there was no dispute he possessed it, but the inmate argued it wasn't a weapon (it was a shoe repair tool).  So, the trial court directed the jury to answer two questions: (1) was the first item a weapon? and (2) did the defendant possess the second item?

What it didn't do was ask the most important question - was the defendant guilty or not guilty on either count.  This is a problem because, at the end of the day, that's the question the jury is supposed to answer.

The Fourth Circuit reversed the convictions (the jury answered "yes" to both questions), even after apply the harsh "plain error" standard of review (citations omitted):

In the instant case, we do not hesitate to conclude that Appellant’s right to have a jury determine his guilt beyond a reasonable doubt was violated.

* * *

Instead of asking the jury to determine whether Appellant was guilty, beyond a reasonable doubt, of each element of the charged offense, the district court instructed the members of the jury that they need not concern themselves with certain elements of the crime.

* * *

The jury neither determined whether the remaining facts essential to conviction were established beyond a reasonable doubt, nor did it find Appellant guilty of the charged offense.

As we have explained, 'the jury’s constitutional responsibility is not merely to determine the facts, but to apply the law to those facts and draw the ultimate conclusion of guilt or innocence.'  Here, the district court erred when it treated the jury as a mere fact finder with respect to the elements the court considered to be in dispute, and thereby prevented the jury from making the ultimate, indispensable conclusion of whether Appellant was guilty or not guilty.

Going further, in concluding that his error was one that, if left uncorrected, would impact the "fairness, integrity, or public reputation of judicial proceedings," concluded (citations omitted):

The Sixth Amendment’s jury trial guarantee, which includes,'“as its most important element, the right to have the jury, rather than the judge, reach the requisite finding of ‘guilty,' is fundamental. Here, Appellant did not waive his fundamental right to a trial by jury, yet no jury has declared Appellant guilty, and he has been sentenced to 33 months’ incarceration based upon a judge’s determination of guilt. Regardless of the evidence presented against Appellant at trial -- which we acknowledge was substantial -- we cannot condone this practice. To do so would undermine the integrity and public reputation of the judiciary.

In other words, it doesn't matter if everybody in the room - including the jury! - thinks the evidence is overwhelming and the defendant is guilty, it doesn't matter unless the jury actually issues a verdict declaring him to be so.  The mummery is important because the jury has a role to play and has to play it, even if the result is a foregone conclusion.  Because sometimes, it won't be.

The Fifth Circuit confronted a similar situation, in which after the defendant took the stand at trial and basically confessed to the crime, the trial court told the jury to "go back and find the Defendant guilty."  Not surprisingly, the Fifth Circuit reversed those convictions, too, for reasons similar to the Fourth's.

The Supreme Court encountered another kind of important mummery in a bizarre case out of Illinois.

The defendant was charged with various offenses (including the wonderfully vague "mob action" - presumably the opposite of "Love Action") and scheduled to go to trial in March 2009.  Trial was repeatedly delayed, however, because the prosecution couldn't bring the victims of the alleged offenses in to testify.  Finally, more than a year later, the trial court decided enough was enough, although it delayed the start of trial on that particular day as much as it could (and helpfully suggested that the prosecutor "might want to send the police out of find these two gentlemen").

But when it came time to start trial, the witnesses weren't there:

THE COURT: . . . . It’s a quarter to eleven and [the witnesses] have not appeared on their own will, so I’m going to bring the jury in now then to swear them.

[The Prosecutor]: Okay. Your Honor, may I approach briefly?

THE COURT: Yes.

[The Prosecutor]: Your Honor, just so your Honor is aware, I know that it’s the process to bring them in and swear them in; however, the State will not be participating in the trial. I wanted to let you know that.

THE COURT: Very well. We’ll see how that works.

Here's how it worked.  The jury was sworn, the judge asked the prosecution to make an opening statement, and the prosecutor said:

Your Honor, respectfully, the State is not participating in this case.

The prosecutor said the same thing when the judge asked the state to present its first witness.  After that, the defense moved for a judgment of acquittal based on the state's failure to present any evidence.  Again, the prosecutor refused to participate, so the defendant was acquitted and the charges dismissed.

The issue for the Supreme Court arose when the state appealed and the defendant argued that the Double Jeopardy clause - which bars the prosecution from having repeated bites at the apple - precluded any retrial.  Amazingly, the Illinois state courts agreed with the state that jeopardy hadn't attached because the state didn't actually participate in the trial once it started.

The Supreme Court rejected that conclusion in the harshest way possible - in a unanimous per curiam (meaning "by the court" - it was so easy nobody had to sign a name to it) opinion without even waiting for full briefing and oral argument.  It reversed only on the cert pleadings - which happens, but is pretty rare.

It was so easy because this is one of those situations where there's a rule that says jeopardy attaches once a jury is sworn.  If you get acquitted after that, you're home free.  In fact, the Court held that there were "few if any rules of criminal procedure clearer" and the Illinois courts messed up by finding "anything other than a bright line when jeopardy attaches."  As in the cases discussed above, whether the defendant actually did what he was accused of is irrelevant - he was acquitted.  End of story, quite literally.

All of these cases show not only that there exists legal mummery in our criminal justice system, but that it relies upon it.