A dozen ordinary people

Rick Morain

It will all come down to 12 folks shut up in a room by themselves.

No observers, no attorneys, no media, no cameras, and no judges present.

Former President Donald Trump’s legal fate in the four jurisdictions where he is indicted will, in the final analysis, rest with the juries selected for his four separate trials. The governments’ prosecuting attorneys and Trump’s defense attorneys will make their arguments in open court with jury members present.

When all admissible evidence from each side has been presented—and that will likely take several weeks in each case—the attorneys on both sides will rest. In each case the judge will then order the jury to retire to a private jury room, where the jurors will discuss the facts of the case, all by themselves and only themselves.

In each case the state (prosecuting attorneys) and the defense (defense attorneys) will have a hand in selecting the members of the jury. Each side can “strike” a certain number of potential jurors from the jury pool. Those strikes are made if one side or the other thinks a potential juror is prejudiced or has some reason to favor one side for reasons unrelated to the actual case.

The system is designed to create a jury composed of 12 individuals who will decide the case on its merits alone, free of pre-discussion favoritism.

Trial by jury has been the rule in the United States ever since we achieved independence. It’s guaranteed for the accused by the body of the Constitution itself, and by the Fifth, Sixth, and Seventh Amendments. The Fourteenth Amendment extended that right to the state level.

But the concept of a jury of the accused’s peers goes back way beyond 1789. Trial by jury was practiced in various forms in ancient Greece and ancient Rome, in some of the German states six centuries ago, and elsewhere in the deep past.

In the English tradition, though, the most well-known origin of trial by jury is found in the Magna Carta of 1215, forced upon King John by a group of nobles. That document’s Article 39 states (originally in Latin, translated into English as follows): “No free man shall be captured, and or imprisoned, or disseised of his freehold, and or of his liberties, or of his free customs, or be outlawed, or exiled, or in any way destroyed, nor will we proceed against him by force or proceed against him by arms, but by the lawful judgment of his peers, and or by the law of the land.”

The “law of the land” soon came to be known as the “due process of law.”

The Magna Carta originally set out rules governing legalities between the King and the English barons, not the rights of ordinary people. But it gained iconic status as time went on, and served the American Founders well as they gave birth to our Constitution.

Trial by jury, of course, is not reserved only for important national or state cases. Three criminal trials by jury have taken place in Greene County this year, with the accused found guilty by juries in each case. Greene County juries have returned guilty verdicts in every criminal jury trial here for the past three years, with County Attorney Thomas Laehn and Assistant County Attorney Laura Snider representing the county in each case. They relied in each case on facts compiled by local law enforcement officers. Other criminal cases in the county have been settled through guilty pleas, or have been continued for various reasons.

Some legal scholars maintain that juries have the right to judge the law as well as the facts in a case. Standard practice in the United States is for juries to determine the facts only, and thereby the guilt or innocence of the accused. To grant juries the right to determine law as well as facts would constitute “jury nullification,” which would give a jury the power to find a law unconstitutional. In the United States that power is generally reserved for judges.

To return to the indictments against Donald Trump: in each of the four cases the prosecutors have built their arguments on evidence secured from testimony of direct witnesses, many of them Republicans and/or officials of the Trump administration or government officers appointed by him. When the cases go trial, the prosecutors will present their admissible evidence to the jurors, and Trump’s attorneys will do their best to counter the prosecutors’ presentations. The 12 men and women in each of the jury dockets will hear the testimony, take their own notes, present questions or ask for clarification as needed, and then, in the privacy of the jury room, will discuss the case among themselves.

The main point of all this: any claim that the system is rigged, or that the case has already been decided in advance, or that the process is unfair, should have no validity. The arguments will have been presented in open court, with both sides given every opportunity to do their best.

To find the accused guilty requires unanimity among the 12 jurors. One member whom the prosecutors fail to convince can prevent a guilty verdict. In that case the jury is “hung,” and the prosecutors will then decide whether to retry the case before a different jury or to let the charges drop. The jury, of course, can also return a unanimous verdict of “not guilty.”

Either way, Donald Trump will have been granted the right of trial by jury that has stood this nation in good stead for well over two centuries, and most of the Western world for much longer than that. No all-powerful Attorney General, no all-power judge, no all-powerful President will rule in the case. Mr. Trump’s fate will be decided in each case by 12 ordinary citizens, whose verdict will depend on whether they think the facts of the case establish his guilt or not.

It’s an awesome power, and it resides where it belongs: with a dozen ordinary people. 

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