LAW DAY 2005

1. LAW DAY 2005 Presented by ADA Bill Filmore

2. What is Law Day? • Began in 1958 • Law Day, May 1, is a national day of celebration, where we traditionally honor our freedoms as Americans – freedoms protected by our laws and legal institutions • The legal profession has played a major role in ensuring that the rule of law remains strong in our nation, that it pursues justice and defends liberty.

3. Beginning of Law Day • 1957 vision of Washington D.C. attorney Charles S. Rhyne serving as ABA President • Proclamation by President Eisenhower on Feb. 3, 1958

4. Proclamation 1st Paragraph • WHEREAS, it is fitting that the people of this Nation should remember with pride and vigilantly guard the great heritage of liberty, justice and equality under law which our forefathers bequeathed to us; and . . .

5. Congressional Resolution Establishing Law Day (1961) • US Code, Title 36, Section 164 • The first day of May of each year is hereby designated as Law Day, U.S.A. It is set aside as a special day of celebration by the American people in appreciation of their liberties and the reaffirmation of their loyalty to the United States of America; of their rededication to the ideals of equality and justice under law in their relations with each other as well as with other nations; and for the cultivation of that respect for law that is so vital to the democratic way of life. • The President of the United States is authorized and requested to issue a proclamation calling upon all public officials to display the flag of the United States on all government buildings on such day and inviting the people of the United States to observe such day with suitable ceremonies and other appropriate ways, through public bodies and private organizations as well as in schools and other suitable places.

6. LAW DAY THEMES • Since 1974 themes have be established for Law Day • The themes since 1997 have been entitled “Celebrate Your Freedom”

7. Law Day Individual Themes • 1997 Celebrate Your Freedom: First Amendment Freedoms • 1998 Celebrate Your Freedom: Due Process Guarantees • 1999 Celebrate Your Freedom: The Quest for Equality • 2000 Celebrate Your Freedom: Speak Up for Democracy and Diversity • 2001 Celebrate Your Freedom: Protecting the Best Interests of Our Children • 2002 Celebrate Your Freedom: Assuring Equal Justice for All • 2003 Celebrate Your Freedom: Independent Courts Protect Our Liberties

8. Then the Themes changed… • In 2004 the Theme was… • To Win Equality by Law: Brown vs. Board of Education

9. For 2005, the Theme is… The American Jury We the People in Action

10. Jury and Democracy • The jury is the embodiment of democracy • We entrust or juries with decision that involve the liberties and property of defendants • In doing so, we confirm our faith in the ability of people to make just and wise decisions, and the is the definition of democracy • The jury system is also an opportunity to educate Americans in law, legal processes, and decision making in a democracy

11. Origins – Henry II • The American Jury system has it origins in medieval England • Jury owes a special debt to legal innovations of King Henry II (1154-1189) • Henry created new legal actions to resolve disputes over land and inheritances • Personally interested in government and law, Henry made use of juries and re-introduced the sending of justices (judges) on regular tours of the country to try cases for the Crown. • Used a panel of 12 men which formed basis of our modern legal system • Big difference, these 12 were to have knowledge of the facts • Henry II also developed a presenting jury which was the forerunner of the Grand Jury • His legal reforms have led him to be seen as the founder of English Common Law.

12. 12th & 13th Century • Civil and criminal disputes were commonly settled by battles and ordeals - in which the accused might be compelled to dip his hand in boiling water to see if it became infected – under the assumption that God would intervene on behalf of the right or innocent party. • Pope Innocent II forbade priest involvement – without clergy involvement – it lost its validity

13. Magna Carta • In June 1215, England’s King John signed the Magna Carta at Runnymede. • Article 39 provided: “No freeman shall be taken or imprisoned … except by the lawful judgment of his peers or by the law of the land.” • The original purpose of Magna Carta was to reassert the rights of powerful English noblemen against the king, not to grant new liberties to the English people at large. • In King John’s mind it was simply a bargaining chip, a stalling tactic. • The Magna Carta only lasted 3 months, not of much significance. But history showed otherwise. • It became a beacon of liberty in Britain and U.S.

14. William Penn • By 1664 English juries were routinely being fined for acquitting defendants. • Such was the case in the 1670 political trial of William Penn, who was charged with preaching Quakerism to an unlawful assembly. • Four of the twelve jurors voted to acquit - and continued to acquit even after being imprisoned and starved for four days. Under such duress, most jurors paid the fines.

15. Independence of the Jury • Imagine that you were locked up in a room without food and water and then fined and imprisoned because you refused, as a juror, to convict the defendants in a criminal case. • This was the fate of Edward Bushell, a seventeenth-century resident of London, England.

16. Conventicle Act • The British Parliament had passed a law known as the Conventicle Act. This Act banned public assemblies of members of “noncomforming” religious groups. • It forbade the assembling of five or more persons for religious worship other than Anglican. • Nonconforming religions were those that differed from the doctrines of England’s established church, the Church of England. • Edward Bushell, a juror, refused to pay and brought his case before the Court of Common Pleas. He said, "My liberty is not for sale."

17. Chief Justice Vaughan • Chief Justice Vaughan issued an historically-important ruling: that jurors could not be punished for their verdicts. • Jurors must ultimately fall back on their own consciences, and that this cannot be interfered with by judges because, “a man cannot see by another’s eye, nor hear by another’s ear; no more can a man conclude... by another’s understanding or reasoning.” • Bushell's Case (1670) was one of the most important developments in the common-law history of the jury. • The decision affirmed the independence of juries … and William Penn went on to found Pennsylvania.

18. Zenger Trial • Juries were a the forefront of the American colonists’ struggle for independence. • Some local juries refused to convict people who violated unpopular British laws. • In 1735, the English authorities charged a New York newspaper printer, John Peter Zenger, with publishing articles critical of the government.

19. Zenger con’t • The judge, who was sympathetic to the King, told the jury that under English law the very fact of printing the critical articles was enough to convict the printer…no matter whether true or false. • Zenger’s lawyer, Andrew Hamilton, had a different view of the jury’s role. • He told them that they “are to see with their own eyes … and to make use of their own consciences … in judging … their fellow subjects.”

20. Zenger con’t • Hamilton said they should acquit Zenger if they found that the statements he printed were not false. • The jury did acquit him. • Gouverneur Morris, one of the Founders, later wrote “The trial of Zenger was the germ of American freedom, the morning star of … liberty.” Andrew Hamilton

21. Navigation Acts • Although Great Britain emerged victorious in the Seven Years War, it left Great Britain with significant debt. The British looked to America to help it. • First the British began enforcing existing laws like the Navigation Acts, which put limits on colonial imports and exports. To enforce these laws better, the British passed the "Writs of Assistance" that gave officials warrants to search anything or anyone suspected of smuggling, anywhere or anytime. • British warships would even patrol American harbors to catch potential smugglers. These smugglers, if caught, would be tried in the newly established Admiralty courts. • In these courts, the accused had no right to trial by jury, and the judges pocketed a percentage of the fines. The British viewed these courts as insurance to make sure smuggling stopped; juries composed of Americans might be biased, so they were done away with.

22. Juries and Constitution • To prevent oppression by the government, the Founders made trial by jury one of our great constitutional guarantees. • Trial by jury in both civil and criminal cases is explicitly granted by the Sixth and Seventh Amendments to the U.S. Constitution and is also guaranteed by every state constitution. • In the words of Thomas Jefferson, “trial by jury is the only anchor yet imagined by man by which a government can be held to the principles of its constitution.”

23. The Right to Serve • Initially, service on juries was limited to white men who owned enough property to qualify for service. • When the 14th Amendment to the Constitution was ratified in 1868, it promised equal protection of the laws to all US citizens. • The Supreme Court ruled that equal protection applied to trial by jury. • Strauder v. West Virginia (1880) • Virginia v. Rives (1880) the same year, limited Strauder decision by holding that a right to be considered for jury service was no the same as a right to serve on the jury. • As a result, blacks were routinely excluded from actual service on juries.

24. Batson Challenge • The systematic exclusion of blacks from juries in many parts of the US did not begin to weaken until the civil rights struggles of the 1960s and beyond. • In 1986, the US Supreme Court took a major step toward limiting these practices in Batson vs. Kentucky. • Prosecutor used peremptory challenges to eliminate all four of the black persons on the venire, resulting in all white jury that convicted the black defendant. • Batson argued that the prosecutor had used his challenges to alter the racial make-up of the jury in violation of his constitutional rights of equal protection. • The US Supreme Court agreed. Jurors of a particular race cannot be purposefully excluded from jury service. • Lawyers must now be prepared to prove that they had race neutral reasons for peremptory challenges.

25. Women on Juries • Women also faced a long struggle. • Although gaining the right to vote in 1920, it was not until 1975 (Taylor vs. Louisiana) that their ability to serve on juries on equal terms with men was finally secured. • In 1994, the US Supreme Court extended the Baston case to prohibit peremptory challenges of jurors based on their sex.

26. Juries and the Press • On July 4, 1954, Marilyn Sheppard, the pregnant wife of a prominent physician, was found bludgeoned to death in her suburban Cleveland home. The husband, Dr. Sam Sheppard, immediately became the prime suspect and a media frenzy erupted. • All but one of the jurors selected to serve stated that they had followed coverage of the case in the local media. • The media frenzy continued during the trial. Sheppard’s trial was one of the first sensational trials of our modern television age.

27. Sheppard v. Maxwell • The Sheppard case brought to sharp conflict the 1st Amendment rights of the press to cover the trial and Sheppard’s 6th Amendment right to a fair trial by an impartial jury. • In 1966, the US Supreme Court held that Sheppard’s constitutional rights had been violated. • The Court’s opinion cited the principle that “the jury’s verdict be based on evidence received in open court, not from outside sources.” • This case went on to inspire the TV series and movies known as The Fugitive. David Janssen, The Fugitive

28. O.J. & Scott • Other cases have had great media participation that have raised new challenges since the Sheppard decision. • Television cameras broadcast the trial proceedings in their entirety, effectively inviting the television audience to reach its own verdict. • Recently, the murder trial of Scott Peterson also dominated the national news.

29. Alabama Courts & Media • Rule 9.4 of the Alabama Rules of Criminal Procedure say that television cameras, etc., may be permitted if it complies with Canon 3 A.(7) & (7B) of Canons of Judicial Ethics. • The Canon requires the Supreme Court to have approved a plan for the courtroom use of media equipment and that all parties have consented to their use. • A testifying witness or juror can object which will require the judge to immediately suspend or stop the photographing or broadcasting. • Rather than deciding to completely prohibit all broadcasting, etc. the court has devised a system which would allow, under limited circumstances, the use of sophisticated equipment to broadcast the court proceedings.

30. Impartial Jury vs. Free Press • Other ways to guard an jury against intense media attention is to change the venue of the trial or sequester the jury. • Alabama Criminal Rule 19.3(b) requires the trial court to admonish all juries that they are not: • To discuss among themselves any subject connected with the trial until the cause is submitted to them for deliberation; • To converse with anyone else on any subject connected with the trial, until they are discharged as jurors in the case; • To knowingly expose themselves to outside comments or to news accounts of the proceedings, until they are discharged as jurors in the case; or • To form or express any opinion on the case until it is submitted to them for deliberation.

31. Qualifications of Jurors • Section 12-16-60 of Alabama Code states that a prospective juror should be generally reputed to be honest and intelligent and is esteemed in the community for integrity, good character and sound judgment and also; • Is citizen of US and resident of county for 12 months and is over 19 years of age • Is able to read, speak, understand and follow instructions given by a judge in the English language; • Is mentally and physically capable… • Has not lost the right to vote by conviction • Section 12-16-62 says there are no exemptions from jury service. • Excusing or deferral of prospective jurors for undue hardship is in the discretion of the presiding judge OATH

32. Based on the book by John Grisham…Some trials are too important to be left to juries. A high priced jury consultant played by Gene Hackman will stop at nothing to secure a verdict for his client. He is up against an honest Plaintiff’s lawyer (of course, this is fiction) who questions him on his tactics.

34. Challenges of Jurors for Cause • Section 12-16-150 says a good ground for challenge by either party is: • Not resident of county • Not citizen of Alabama • Indicted in last 12 months same character offense • Related to the defendant or prosecutor Convicted of felony • Interest in conviction or acquittal of defendant • Fixed opinion about guilt or innocence • Under 19 years of age • Not of sound mind • Witness or party

35. Further Criminal Case Challenges • Good cause of challenge by the State: • that the person would refuse to impose the death penalty regardless of the evidence • that the person has a fixed opinion against penitentiary punishment • that the person thinks that a conviction should not be had on circumstantial evidence • (Section 12-16-152 Alabama Code)

36. Peremptory Challenges • After the dismissal of jurors for cause • Both sides may exercise peremptory challenges, which are dismissals the lawyer can make without providing a reason • However, as we have seen in the Batson decision, peremptory challenges can not exclude jurors because of their race or sex

37. Number of Jurors (Rule 18.4) • In Alabama state court 12 jurors must reach unanimous verdict • To determine who to strike lawyers may conduct Voir Dire (French word meaning “to speak the truth”) examination to question prospective jurors to determine possible bias • To strike a jury for a capital case you must have at least 36 jurors, for felony case at least 24 jurors, and for misdemeanor jury appeal, 18 jurors are required to strike from. • Court has discretion on deciding how many alternate jurors go on a case, but no less than two are required in capital cases. • An alternate juror who does not replace a principal juror shall be discharged at the time the jury retires to consider its verdict. • The alternate juror does not know they are an alternate until the jury retires to begin deliberations.

38. Juror Misconduct • During selection lying in response to voir dire questions • Making improper contacts – witnesses, parties, lawyers, or outside the case like relatives or press • Drugs, alcohol, or sleeping during court • Receiving information that is not evidence and sharing it with other jurors • Visiting scene of crime or tort • Conducting experiments • Legal or factual research • Reading or watching news reports • During deliberations refusing to participate, coercing jurors, making prejudicial statements Hard to stay awake with some lawyers!

39. Juror Misconduct (con’t) • Improper mechanisms for arriving at a verdict • Using a game of chance, such as a coin flip • Agreeing to ignore the law • Agreeing to a “quotient verdict” in a civil case; that is, arriving at a damages amount by taking a figure from each juror, and averaging them • Corrupt conduct like taking a bribe or establishing a close personal relationship with a trial participant

40. Note Taking • The norm in most courts is that jurors can not take notes, but it is often sited as a good jury reform • Reasons note taking is objected to: • May cause jurors to miss something important that is occurring because the jurors are busy writing notes about what has already occurred • May cause jurors to discount their memories of the testimony • May result in jurors doodling rather than taking notes • May result in most prolific note taker dominating the deliberations • Could be perverted by a note taker who is dishonest • Note taking is not often done in Alabama, but it is a matter within the discretion of the trial court. (Poole vs. State, 650 So.2d 541 (Ala.Crim.App. 1994) Note taking is proper, desirable and not a ground for misconduct in and of itself.

41. Deadlocked • When the judge is first informed that a jury is deadlocked, almost every jurisdiction, including Alabama, has some version of an instruction the judge can give to encourage the jury to continue to deliberate. • This is called an “Allen Charge” after the 1896 Supreme Court case of Allen v. US. • This charge is also called a “dynamite” charge which is designed to blast the log-jam of disagreement. • If deadlock persist, the judge will declare a mistrial, and the case will be set for retrial.

42. Employment Protection & Pay • Employers under Alabama law are forbidden from discharging employees for jury service • An employee who is so discharged shall have a cause of action against the employer for said discharge in any court of competent jurisdiction in this state and shall be entitled to recover both actual and punitive damages. (12-16-18.1) • Pay for grand and petit jurors is the grand amount of $10 per day and 5 cents a mile. (12-19-210)

43. Jury Service Attitudes • Nearly a million Americans serve on a jury each year • About 5 times that number show up to their local courthouse to report for jury duty • An ABA survey in 2004 showed: • ¾ of those polled said jury duty is not burden to be avoided • 58% consider jury duty a privilege they look forward to fulfilling • Most who served say they would like to do it again • The Bad news: • In practice Americans don’t value service. Problems with response rates to jury summons. • 20% of people who actually receive a juror summons simply ignore it. • Public often perceives it negatively, as an inconvenience to avoid.

44. For the Future • Unveiled on September 13, 1993, the Courtroom 21 Project is an ongoing international demonstration and experimental effort which seeks to determine how technology can best improve all components of the legal system. It includes, in the College of William & Mary Law School's McGlothlin Courtroom, the world's most technologically advanced trial and appellate courtroom. A joint project of the Law School and the National Center for State Courts. • More court rooms, especially federal courts, have computer assisted jury boxes.

45. Take it from a Football Player Former US Supreme Court Justice Byron “Whizzer” White who was a former college and NFL football star and a conservative on the Court from 1962-1993 said the following about juries in 1975: “The purpose of a jury is to guard against the exercise of arbitrary power – to make available the common sense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps conditioned or biased response of a judge.”

46. Conclusion • Trial by jury is a vital part of our democracy secured by our constitution. • Besides voting, nothing is so active and participatory in nature. • Jurors have an opportunity to provide a great service, but they also have a tremendous responsibility. • The more clearly adults understand their roles as potential jurors before they are called to jury service, the more they will appreciate their duty and the better they will fulfill their responsibilities when that day arrives. VERDICT

47. THE END The American Jury We the People in Action Presented by Bill Filmore, ADA