The Jury On Trial

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Although it happens much more frequently these days than before, jury sequestration is not a peculiarly modern practice. The earliest American example occurred in 1770, when the jurors who sat on the Boston Massacre trials were confined to the courthouse for the week or so that each prosecution required. Their incarceration, however, resulted not from fear of mid-trial exposure to media accounts but from the fact that up to then no trial had ever lasted more than a day and no one knew how else to accommodate the common-law rule that a jury, once sworn, could not separate before rendering a verdict.

Occasionally throughout our history occurrences more sinister than pretrial bias or news coverage during trial have influenced jury deliberations and produced unjust verdicts. During the heated period immediately following the Boston Massacre, an unpopular customs officer, an informer, was tried in Boston for firing a musket into a crowd besieging his home, killing an eleven-year-old boy. The courtroom spectators gave the proceedings scant respect. During Judge Oliver’s jury charge, cries of “Guilty!” filled the courtroom; one man shouted, “Damn that Judge! If I was nigh him, I would give it to him.” As the jury was going out to deliberate, the noise increased. “Remember, jury, you are upon oath!” “Blood requires blood!” “Damn him, don’t bring it in manslaughter [which would have spared the defendant from hanging].” “Hang the dog! Hang him!” “Damn him, hang him!” “Murder, no manslaughter!”

After deliberations that lasted until early the next morning, the verdict came in: guilty of murder. Later it developed that at least one of the jurors had had doubts but had abandoned them when assured by others that “if the verdict was not agreeable to Law the Court would not receive it.” The advice was incorrect. Once the verdict was in, the court was obliged to receive it; only a subsequent royal pardon saved the defendant.

A century and a half later, in 1915, Oliver Wendell Holmes, joined by Charles Evans Hughes (then an associate justice of the Supreme Court, later to become chief justice), dissented from a refusal to second-guess the Georgia Supreme Court’s decision that the conviction of Leo Frank had not offended due process. Frank, a New York Jew who had gone South to manage an Atlanta factory, had been indicted for the murder of a young girl. His religion and origin together with the nature of the killing had raised violent local prejudice. Holmes’s statement of the facts, sparse and unemotional, imparts with chilling effect the terror and violence that permeated the courtroom and the jury deliberations. Unhappily, other trials, in all parts of the country, have been similarly infected; none, however, has been so starkly detailed by such a detached master of prose:

“The trial began on July 28, 1913, at Atlanta, and was carried on in a court packed with spectators and surrounded by a crowd outside, all strongly hostile to [Frank]. On Saturday, August 23, this hostility was sufficient to lead the judge to confer in the presence of the jury with the Chief of Police in Atlanta and the Colonel of the Fifth Georgia Regiment stationed in that city, both of whom were known to the jury.

“On the same day, the evidence seemingly having been closed, the public press, apprehending danger, united in a request to the Court that the proceedings should not continue on that evening. Thereupon the Court adjourned until Monday morning.

“On that morning when the Solicitor General entered the court he was greeted with applause, stamping of feet and clapping of hands, and the judge before beginning his charge had a private conversation with [Frank’s] counsel in which he expressed the opinion that there would be ’probable danger of violence’ if there should be an acquittal or disagreement [i.e., a hung jury], and that it would be safer for not only [Frank] but his counsel to be absent from Court when the verdict was brought in.

“At the judge’s request they agreed that [Frank] and they should be absent, and they kept their word. When the verdict was rendered, and before more than one of the jurymen had been polled there was such a roar of applause that the polling could not go on till order was restored. The noise outside was such that it was difficult for the judge to hear the answers of the jurors although he was only ten feet from them.”

The facts led Holmes to a severe conclusion: “Mob law does not become due process of law by securing the assent of a terrorized jury. We are not speaking of mere disorder, or mere irregularities in procedure, but of a case where the processes of justice are actually subverted. … Any judge who has sat with juries [as Holmes had] knows that in spite of forms they are extremely likely to be impregnated by the environing atmosphere.”