The Jury On Trial


Furious, the judges took the unusual step of polling the jury (i.e., asking them individually to confirm the verdict), a procedure normally used only after a conviction. When the result remained the same, the irate Recorder fined them for acquitting against the judges’ direction (essentially for con- tempt of court) and ordered them sent to Newgate Prison until they paid. Eight did so, but four refused. Instead they obtained a habeas corpus, the great writ, which was then and is now the strongest procedure for determining the legality of an incarceration.

In a decision that three centuries later still remains the charter of jury independence, Chief Justice John Vaughan, speaking for the eleven-judge Court of Common Pleas, freed the hungry, thirsty, and angry jurymen. Modern lawyers regard Bushell ’s case, named for one of the recalcitrant quartet, as the source of the rule that jurors need never explain their verdict, that they may in fact disregard the evidence, especially in a criminal trial, and (although it was not an issue in the Penn trial) that an acquittal is final, subject to no appeal by the unsuccessful prosecutor.

Bushell ’s case thus has come to stand for the jury’s untrammeled right to return whatever verdict it pleases. The parallel American experience, prosecution of the New York editor John Peter Zenger, acquitted of seditious libel despite the court’s manifest desire for conviction, lacks Bushell ’s legal significance because unlike the Recorder and the Lord Mayor of London, Zenger’s judges largely gave up, so the case furnished no written opinion or precedent. John Adams did not even mention Zenger when in 1771 he was arguing in support of the jury’s absolute power.

In Bushell ’s case, Vaughan, affirming the jury’s nonaccountability, relied on a narrow rationale that reflected the very origins of the jury system: Because jurors, summoned to the service as they are from the vicinity, can very well possess information about the case different from the evidence adduced in court; by drawing on their own special knowledge of the witnesses’ credibility or even of the pertinent facts, they may arrive at a verdict that in light of the testimony the judge might consider inexplicable.

Since Bushell’s case, in 1670, Jurors have had an untrammeled right to return any verdict they please.

We have of course entirely abandoned this concept. Nowadays we are not content merely to know that a jury candidate has formed no opinion about the case or its underlying facts; we want our jurors’ minds to be even purer. Our desire to ensure the jury’s absolute impartiality causes us to hunt for and to enlist only those citizens who, as in the trial of Oliver North, do not read newspapers, watch television, or even discuss the events of the day. Claiming to pursue the ideal impartial juror, we actually seek the impartiality of complete ignorance.

Worrying that exposing jurors to pre-trial publicity may render them permanently incapable of deciding the case on the evidence they learn during the trial is a reasonable and long-standing concern. Immediately after the Boston Massacre in 1770, Henry Pelham, a half-brother of the artist John Singleton Copley, executed a detailed and grossly inaccurate cartoon depicting the soldiers (who had in fact discharged their muskets almost at random) as lined up like a firing squad, with their officer, Capt. Thomas Preston, standing in the rear, sword raised (actually he had been in front of the men, sword sheathed, when the shooting started).

Paul Revere, the silversmith, acting without Pelham’s approval, engraved the drawing and printed hundreds of vividly colored copies, which traveled throughout the colonies. Well might one judge at Captain Preston’s trial complain that “there has been a great deal done to prejudice the People against the Prisoner.” With Boston’s population less than sixteen thousand and the population of Suffolk County (whence the jurors would come) more than thirty thousand, the judge had good cause to protest.

Whatever might be the relative worth of pictures to words, the radicals also prepared A Short Narrative of the Horrid Massacre in Boston , accompanied by ninety-six “depositions” (affidavits), designed to establish that the massacre had resulted from a massive Tory conspiracy. Despite the Boston Town Meeting’s vote to impound all copies not sent abroad, lest publication in Boston “give an undue Byass to the minds of potential jurors,” the pamphlet somehow managed to circulate in Boston well before the trial.