The nomination of Judge Sotomayor for the Supreme Court has resulted in some discussion into the role of personnel experiences in the meting out of justice. Lost in all this seems to be the role personnel experiences have played in court proceedings for hundreds, even thousands of years.
I am talking of course, about juries. As noted by many others, including myself just a short while ago, the role of the judge is to ‘apply the law’ in as impartial and unbiased a manner as is humanly possible. Thus, as some of us have seen in courts, and we have all seen on TV, whether in reality or in movies, the judge keeps the entire proceeding inside the span of the applicable law or laws. The judge should, and usually does, strive to remain impartial and unbiased.
But, if that is so, where role does personnel experience have in a court and how does society ensure that that particular knowledge, whether it is Judge Sotomayor’s experience as a women of Hispanic origins growing up and working in the US, or any other particular life experiences? The jury, the jury of our peers, is supposed to address that concern.
Prior to the last fifty years, the overwhelming perspective on juries in the US was that juries were made up of people from the community who knew the accused, or at least came from the same local community. They knew where the accused worked, where he or she went to church, may know the children, and may even have gone to school with the accused. In short, they had experienced what he or she had experienced, and they could place specific actions in context of those experiences. They were what I would call knowledgeable juries. Did this led to biased decisions in some cases? Certainly. Though I doubt if it led to any more biased decisions – as a percentage - then do the highly contorted juries we now see in high profile cases.
There is, in fact, a small set of cases where similar knowledgeable juries can still be found, and that is in military courts martial. In that situation everyone on the jury, while they usually don’t have personal knowledge of the accused, have a great deal in common with the accused. In short, they can place the actions of the accused in context and weigh them against their own decisions. Attorney F. Lee Bailey has said that the US military legal system is the fairest and most accurate legal system on the planet. The jury system is one of the key facets of that fairness and accuracy. *
On the other hand, once a jury has heard a case and a verdict has been reached, cases return to courts based on only two issues: newly discovered facts or a demonstration that the law was improperly applied. In both cases, what society should insist upon is scrupulously accurate application of the law, not the biases of those presiding over the case.
It has been judges who have overstepped their bounds who have removed personal experience from the court. We don’t need appellate judges to replace the juries with their own experiences. We need judges to return the jury to its rightful role. If Judge Sotomayor wishes to return the personal experiences of her life to the court, let us hope she chooses to do this by strengthening the jury system and not expanding the role of judges.
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* The other key ingredient according to Mr. Bailey was the requirement to provide investigative support to the accused.
I am talking of course, about juries. As noted by many others, including myself just a short while ago, the role of the judge is to ‘apply the law’ in as impartial and unbiased a manner as is humanly possible. Thus, as some of us have seen in courts, and we have all seen on TV, whether in reality or in movies, the judge keeps the entire proceeding inside the span of the applicable law or laws. The judge should, and usually does, strive to remain impartial and unbiased.
But, if that is so, where role does personnel experience have in a court and how does society ensure that that particular knowledge, whether it is Judge Sotomayor’s experience as a women of Hispanic origins growing up and working in the US, or any other particular life experiences? The jury, the jury of our peers, is supposed to address that concern.
Prior to the last fifty years, the overwhelming perspective on juries in the US was that juries were made up of people from the community who knew the accused, or at least came from the same local community. They knew where the accused worked, where he or she went to church, may know the children, and may even have gone to school with the accused. In short, they had experienced what he or she had experienced, and they could place specific actions in context of those experiences. They were what I would call knowledgeable juries. Did this led to biased decisions in some cases? Certainly. Though I doubt if it led to any more biased decisions – as a percentage - then do the highly contorted juries we now see in high profile cases.
There is, in fact, a small set of cases where similar knowledgeable juries can still be found, and that is in military courts martial. In that situation everyone on the jury, while they usually don’t have personal knowledge of the accused, have a great deal in common with the accused. In short, they can place the actions of the accused in context and weigh them against their own decisions. Attorney F. Lee Bailey has said that the US military legal system is the fairest and most accurate legal system on the planet. The jury system is one of the key facets of that fairness and accuracy. *
On the other hand, once a jury has heard a case and a verdict has been reached, cases return to courts based on only two issues: newly discovered facts or a demonstration that the law was improperly applied. In both cases, what society should insist upon is scrupulously accurate application of the law, not the biases of those presiding over the case.
It has been judges who have overstepped their bounds who have removed personal experience from the court. We don’t need appellate judges to replace the juries with their own experiences. We need judges to return the jury to its rightful role. If Judge Sotomayor wishes to return the personal experiences of her life to the court, let us hope she chooses to do this by strengthening the jury system and not expanding the role of judges.
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* The other key ingredient according to Mr. Bailey was the requirement to provide investigative support to the accused.
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