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Hung Jurists

A lot has been said decrying the recent Supreme Court decision banning the execution of criminals for crimes committed while they were minors. It's been batted around by a lot of people, but I'm going to take one angle that I haven't seen discussed anywhere.

One key element of the Court's ruling was its citation of laws of other nations in support of its ruling. There is a lot of outrage over this, but I'm going to take a different tack.

I have no problem with looking at the laws of other nations to see where we might improve our own legal system. There's nothing magical about America that says only we can come up with good ideas. In fact, our own history shows just the opposite -- when we see a good idea somewhere else, we have no qualms about taking it and using it for ourselves, customarily after putting our own improvements on that idea.

For example, several years ago I heard about a Scottish legal practice that might merit some study. Juries in Scotland have an additional choice between guilty, not guilty, and deadlocked, called "Not Proven." That's the jury's way of declaring a mistrial of their own. They are saying that they believe the defendant is guilty, but the prosecutor didn't do a good enough job to merit a conviction. The "Not Proven" verdict lets them encourage a re-trial of the suspect, without violating double jeopardy. I think that might be something worth looking into.

That being said, I will stand firmly behind those who are greatly troubled by the notion that laws outside the United States (and, by definition, outside the United States Constitution) can hold sway over legal matters within the United States. The Constitution is the cornerstone of our legal system, and the Bill of Rights the guardian of our personal liberties.

When we start applying laws and judgments that were reached outside the Constitution to American cases, we're tossing our own sovereignty and the supremacy of the Constitution into the court of worldwide public opinion -- and that is something no one has the right to do.

Not even Supreme Court justices.



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Comments (22)

Jay,Wholeheartedly... (Below threshold)


Wholeheartedly agree that our experiment may require tweaking from time to time, and 'not proven' is one such suggestion.

But as you point out, the Justices are not the ones to make those calls, the electorate are.

Hmm... Not saying it's a b... (Below threshold)
Ray Midge:

Hmm... Not saying it's a bad idea, but I wonder what percentage of cases over there result in 'not proven' v. our present 'mistrial by deadlock' rate. One of the nice things about judges and juries is that they actually make decisions, i.e. resolve matters.

Not sure that this would make it any more likely to resolve it correctly, but would sure result in more retrials and a more costly justice system.

Color me unclear on the Sco... (Below threshold)

Color me unclear on the Scottish thing, Jay.

How is it different from our system of a "hung jury." At that point, it IS a mistrial (declared by the judge and the jury dismissed) and evaluation of whether to retry it is considered by the DA (based on interviewing the jurors and re-evaluating the trial/evidence/testimony)

I'm disturbed by the POTUS decision because it appears yet another case of the judges deciding a matter that is the province of state legislatures. Crime and punishment varies from state to state, why should this particular issue be elevated to a POTUS case rather than, say, the differing age-of-consent from state to state?

Supreme Court logic- 17 YEA... (Below threshold)
Thomas Hazlewood:

Supreme Court logic- 17 YEARS is too young to die, 17 WEEKS has no right to live.

WHOOPS... typo alert<... (Below threshold)

WHOOPS... typo alert

POTUS should be SCOTUS


There are (were?) actually ... (Below threshold)

There are (were?) actually four "Scottish" verdicts:

Not Proven -- we think you did it but they didn't prove it
Not Guilty -- either you didn't do it or it wasn't a crime that you did (the latter having a flavor of American "nullification")
Innocent -- you shouldn't have even been charged

The difference between these and a hung jury is that the jury has to agree to one of these four (or hang, if the Scots allow that.)

Darn, so disappointed.... (Below threshold)

Darn, so disappointed.

At first I thought the title meant hang the judges!

The concept behind the Cons... (Below threshold)
Rod Stanton:

The concept behind the Constitution was it would be the basis for all law in America. In effect this case negagtes 216 years of American law and history. A very bad idea.

The problem is that the Sup... (Below threshold)

The problem is that the Supremes' job is to take a law, read it, and decide if it violates the Constitution. Nowhere in that simple process is there the need to refer to foreign laws, morals, practices, beliefs, or whatever.

For example, several years ago I heard about a Scottish legal practice that might merit some study. Juries in Scotland have an additional choice between guilty, not guilty, and deadlocked, called "Not Proven." That's the jury's way of declaring a mistrial of their own.

I don't see the point. If the jury believes the defendant has been proven guilty, they should vote guilty. If the jury does not feel the prosecution has proven their case they are required to vote not guilty. If they can't agree they deadlock and the prosecution gets a chance to fix its mistakes.

Giving the jury the power to send the case back for rework by the prosecution is patently ridiculous. The prosecution decides if and when to bring the case to trial. The jury's role is to determine the facts. If the prosecution cannot prove a fact to the jury's satisfaction, that element is not considered a fact. End of story.

Another nice British practi... (Below threshold)

Another nice British practice we might bring into our courts is "Loser pays." Even more than caps on awards, this will make people--properly--think twice before bringing dumb cases to trial.

A former death penalty advo... (Below threshold)

A former death penalty advocate, I now am against it, based on the cost factor and my experience with our legal system.

Six times over the decades, I have been drawn into some connection with the courts (never as a defendant). Each time, some inane or bizarre thing happened, often outright fraud. I have been on juries with clear lunatics. I have seen a plaintiff - bandaged like a mummy - abandon his crutches and sprint to his car in the rain.

How many of those jailhouse sniches do you think tell the truth when offered a deal? Would you? Eyewitness identification is notorious. Think for a minute about your own experience with our courts. Did everything go so right? Do you know of cases or trials that have become absurd?

Several years ago, the parents of Jon Benet were assumed guilty by the press and the police, especially after some "expert" claimed the kidnap note was written by the wife, left handed. Good science that. Today, after they paid for several of their own investigations, they are thought by most to be innocent.

Still, you may have more faith in the system than I do.

Yet it cost more than double to execute as opposed to prison with no possibility.

I am not making a moral or cruelty case, I just think that the cost and the chance for error are too great.

Your point is one I complet... (Below threshold)

Your point is one I completely agree with. My essay on the topic:

Who Shall Rule Us?

This idiot decision used in... (Below threshold)

This idiot decision used international law to interpret the 8th Amendment. Are you now proposing that we use international law to redefine the double jeopardy clause of the 5th Amendment? No thank you.

Anyway, the 12 moonrocks in the box already have enough problems with two choices. Why give them four and confuse them more?

I have no problem with legi... (Below threshold)
Just Me:

I have no problem with legislatures, and citizen lobbiest looking to internatinoal law to argue their point, but I don't want the US supremes using it as a basis for their decisions-that is the difference.

Darleen also another different between the not proven and a Mistrial, is that it sounds like jurors can on their own make the not proven decision, while a mistrial can only be declared by the judge.

Also, I agree very much wit... (Below threshold)
Just Me:

Also, I agree very much with Scalia's opinion, and I also find it ironic that the same judges who think 16 year olds are capable of making the moral decision to abort their babies without any input from their parents, apparantly think they are incapable of making the moral decision to kill somebody.

Sounds like our supremes are confused, or just looking for something to support their posiitons.

This is another debate that really belonged in the legislature, and not in the hands of the justices.

Darleen, the main distincti... (Below threshold)
Jay Tea:

Darleen, the main distinction I can come up with is that with a hung jury, the judge can keep ordering them back to deliberate further. With a "not proven" verdict, they decide for themselves that they're done deliberating and the trial is over. It puts a smidgen more power in the hands of the jury, and I think that might be worth trying.

HTom, thank you for the clarification about the Scottish legal system. If there's one thing I've learned in my year at Wizbang, it's this:
If I want to learn everything about a certain topic, just state a few things I know (or think I know) authoritatively, then sit back and wait for people who DO know what the hell they're talking about to correct me. Works like a charm every time...


If a "Juvenile" is declared... (Below threshold)

If a "Juvenile" is declared by judicial fiat not to be competent for criminal culpability sufficient to merit the death penalty, then can said (female) "Juvenile" at the same time be competent sufficient to make decisions regarding health care decisions - such as abortion?

Could this ruling be a cudgel with which to beat down the opponents of parental notification?

Let's see: Not only are you... (Below threshold)

Let's see: Not only are you proposing to redefine the 5th Amendment, you also want to change the definition of guilt beyond a reasonable doubt. Don't hold your breath.

And jury nullification undermines our system of justice and is prohibited in California.

Not Proven vs. "We are Hung... (Below threshold)

Not Proven vs. "We are Hung"

At least when a jury sends out a note that they are hung, the judge can bring them out and question them, find out if there is anything he can do to help them reach a verdict, readback, instructions, etc. He then sends them to back deliberate. More likely than not, they come back with a verdict. A Not Proven verdict only let's jurors shirk their responsibilites and encourages mistrials. This isn't Masshole, buddy.

I agree that foreign law ma... (Below threshold)

I agree that foreign law may be cited under some circumstances - though just like out-of-state law, if one is going to cite out-of-jurisdiction law, you better not cherry-pick. It would be competely dishonest to cite, say, a New Hampshire case to a California court where the vast majority of other states do not follow that New Hampsire case law. This is the problem with the current practice of the U.S. Supreme COurt justices who do most of the foreign law citing - they cherry-pick, and obviously and blatantly so. And Scalia calls them on it all the time, yet they have no shame.

Read this if you want to know what happened to stare decisis.

We have Justices that now l... (Below threshold)

We have Justices that now look to a 500+ page EU Constitution to determine our laws? Why don't they stick to our eleven pages of our constitution?

They (the Supreme Court) are re-interpreting our constitution, based on their "perceived" notions of what the Europeans think. Had we wanted European influence, Plymouth Rock would just be a rock, with no significance in our national history or founding.

Time to impeach a few judges.

I take this matter of messi... (Below threshold)

I take this matter of messing with our Constitution and US law very seriously and appreciate the above comments.

I just thought this was going to be a humor thread - a la Arlen Specter's use of "Scottish Law" to favor Clinton during his impeachment :))






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