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February 24, 2009


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Another way to cogitate about what Profesor Gross is asserting, is to say that "juries sometimes make terrible mistakes." (Practically speaking, every capital case is a jury trial, and virtually every death sentence in modern times is the result of a jury determination.)

We might even find a lot of general public agreement with the notion that "juries sometimes make terrible mistakes." We all have our own favorite example of an unthinkable jury verdict.

And yet, we always seem to focus on the "problem" of jury error in one and only one context; wrongful criminal convictions.

We don't often convene acadmeic panels to sort out, in statistical detail why, for instance, O.J. Simpson was acquitted of homicide. Nor do we ever do much to figure out why some juries award seven-figure damages for spilled McDonald's coffee, or for the purchase of a "new" BMW that had been dented and repainted prior to sale.

The public is mostly aware that a lot of trial errors are reversed or otherwise corrected on appeal. But some are not. The ones that are uniquely, peculiarly, just plain bad decisions by jurors are often very difficult if not impossible to overturn on appeal.

I happen to agree with much of Jack Lessenberry's accompanying essay; capital-punishment prosecutions are REALLY expensive, and the margin for error must be zero -- a hard standard indeed. Michigan, the first govenment in the western world to outlaw the death penalty (before the United Kingdom, before any of the New Wngland states), probably got it right.

But I cannot resist to tweak the political prejudices of academia and the left wing, when they are so earnest in their criticism of juries in capital-crime cases, but are so solicitous of juries in other cases, most particularly in civil trials for damages. The left loves to scold conservatives about what they sneeringly refer to, complete with scare-quoted prefix, as "so-called tort reform." But I just wonder; what if the left itself were scolded for "so-called criminal justice reform"?

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