Filan doesn’t go far enough

[Update 6/11/07: The system works! Or not! Another fine moment in prosecutorial discretion.]

Susan Filan, a former prosecutor and now senior legal analyst at MSNBC, wrote an op-ed this week calling for prosecutors to be more cognizant of their discretion in bringing charges. This epiphany came to her after reflecting on the grossly unjust case of Genarlow Wilson, a high school football player in Georgia sentenced to ten years in prison for having consensual oral sex with another student:

When he was 17 years old and a high school senior, he received consensual oral sex from a 15-year-old, 10th-grade girl.

Everyone agreed, including the prosecutor and the girl herself, that she initiated the act.

It was all captured on video — the evidence used to convict him at trial. On the tape, police saw a 15-year-old perform oral sex on one partygoer, and after finishing with him, she turned and did the same to Wilson. Under Georgia law at the time, this was considered aggravated child molestation, a felony for teens less than three years apart to have oral sex. It carried with it a 10-year sentence, even though it was only a misdemeanor for those same teens to have sexual intercourse…

The other students at the party took that deal and some of them are out of prison by now. Because Wilson thought he would be acquitted and did not want to be branded a child molester, he went to trial. The prosecutor blames Wilson for his sentence because none of the other defendants insisted on a trial; all the others “took their medicine.”

If you’re not familiar with Wilson’s case, I urge you to read more about it. This ESPN article about him is both touching and infuriating, and probably the best place to start.

Unfortunately, Filan’s prescription for preventing these kinds of cases in the future is much too trusting of her profession:

When I first heard about the case, I wasn’t too concerned. Wilson knew the risks, rolled the dice by going to trial and lost. But the more I think about his case and the more I read about his case, the more I think prosecutors have a duty to make sure they don’t take cases to trial that they can win, when the punishment doesn’t fit the crime. Prosecutors have discretion, and they have to use it fairly and wisely. So why do I write about this case now, two years into his sentence? For two reasons: for one, the Duke case has heightened my awareness that there can be injustice in the system, and as a prosecutor, I have an equal obligation to seek convictions as I do to make sure the convictions are fair and just and not wrongful. I must speak out against injustice in the same way I speak out against crime and in favor of law enforcement.

It’s all well and good to wish for prosecutors to use their discretion wisely, but we know that this isn’t always going to happen. Sometimes prosecutors have a warped sense of justice. Sometimes they’re more concerned with reelection than with the justice of a particular case. And sometimes, as with Wilson’s prosecutors, they’re just dicks. Simply urging them to do right isn’t nearly enough.

The best way to guard against these kinds of injustices is to empower juries to fulfill their intended role as a check on overreaching government power. Wilson went to trial knowing he wasn’t a child molester and hoping his jury would see that, too. And they did see that — but because contemporary juries are prevented from questioning the law, they tearfully convicted him anyway. From the ESPN article:

The day before the trial was expected to end, in the last night he’d ever spend at his home, Wilson went to a church down the street and asked the preacher to pray with him. He awoke early the next morning. He knotted his tie carefully and went to the courthouse. The trial finished that afternoon, and the jury came back with “not guilty” on the rape but “guilty” on the aggravated child molestation.

He looked at the forewoman. She was crying, seeming to understand they’d just undone a promising future. Indeed, when the jurors found out there was a 10-year mandatory minimum sentence, several were incensed. The prosecution told them to write a letter, then moved on to the next case.

The answer to cases such as Wilson’s is to allow defense lawyers to argue that some laws or applications of laws are unjust, inform juries of the sentencing consequences of a conviction, and urge them to act as the conscience of their community when called for. I don’t expect former prosecutor Filan to advocate such a radical return to the original intent of trial by jury, but I’d be greatly impressed if she did.

(Wilson has a habeas appeal pending, with a decision from the judge due Monday. Follow the details here.)

Dawkins doesn’t get juries


9 thoughts on “Filan doesn’t go far enough”

  1. Jury nullification = mob rule instead of the rule of law.

    Let me tell you another story of injustice, one I read about in a early American history book I’m reading. In 1675 a Native American named John Sassamon (an Anglicized name because he had converted to Christianity) was found dead – probably murdered. Sassamon had earned the enmity of the local Native American leader (who, incidentally, bore a hatred of Christian Natives…a hatred that was mutual) through some scams, so the colonial authorities of Plymouth put that leader’s top lieutenant, Tobias, on trial for murder, along with Tobias’s son and friend.

    Now English law at that time required 2 witnesses to convict someone of murder. The prosecution had one witness, and a dubious one at that. A fellow Native who had recently been forced by Tobias to give up some property to pay off a gambling debt claimed he somehow managed to be in just the right place at just the right time to witness Tobias killing Sassamon without being detected himself.

    If the jury followed the law at that time, they could not have convicted Tobias. Instead, a jury of 12 colonists and 6 Christian Natives convicted these 3 “heathen” Natives and swiftly sentenced them to death. This despite the fact that there was no real, credible evidence to link them to the murder. This clear miscarriage of justice – among other things – led to King Phillip’s War, a horrific conflict that, proportionally, killed more Americans (Native and colonist) than the Civil War.

    The jury in Tobias’s trial was doing just what you advocate Jacob – they were ignoring the law and acting as the conscience of their (very prejudiced) community. They were just like the juries who acquitted those who attacked civil rights activists in the mid-20th century.

    I believe in the rule of law – the idea that all of us (juries, Presidents, average citizens going ab out their business) are bound by the same rules. I believe in the rule of law because it is the best way to restrain the rule of unmitigated power and community prejudice. Not that laws can’t be unjust – of course they can and often are. But a system where people are restrained by something more than their self-interest and the whims of the crowd is still preferable to the alternative.

    Yes, what happened to Wilson was a horrible injustice. Yes, if the jury had ignored the law in that case, a more just result would have occurred. (There are people in the Georgia legislature who are trying to get him set free and I hope they succeed.) But on the whole, based on history and human nature, I’m inclined to believe injustice happens more often when the law is ignored than when it is followed.

  2. Ben, in the case you mentioned, what was the role of the judge? If the law was as you say, he should have either dismissed the case or instructed the jury to ignore the testimony. And in today’s legal system, the defendant would have recourse appeals instead of receiving swift execution. It sounds like Tobias was betrayed not just by the jury, but by the entire legal system of the time.

    This is not to say that juries or our legal system are perfect, only that we have developed a useful asymmetry: Convictions from juries can be reviewed by judges and overturned if they are found to have been outside the scope of law. Only acquittals are final.

    Tobias’s case is also not an example of jury nullification. Nullification happens when everyone agrees that the act was committed but that it is not worthy of conviction. Tobias was convicted under a just law against murder for an act he likely didn’t commit. Neither I nor anyone else I know advocate convicting people for things they didn’t do just because they’re unpopular.

    You mention some bad cases of jury nullification. What about the good ones, such as juries that protected the freedoms of religious outsiders, the press, fugitive slaves, and victims of Prohibition? To make this personal, Ben, if you were on an 1850s jury and asked to convict an escaped slave and send him back to his master in accordance with the law of the time, would you do it?

    I also have to ask you why you consider jury nullification to be opposed to the rule of law. The right to have one’s case reviewed by a jury is mentioned three times in the Bill of Rights alone. Why do you think the founders put such importance on what under your view is a purely procedural matter? Rather than being outside the rule of law, jury nullification is an essential part of it, embraced and protected by the supreme law of the land as a final check on state power. It is no more opposed to the rule of law than is judicial review, the bicameral legislature, or Congress’s power of the purse.

    Lastly, do you consider prosecutorial discretion to be a violation of the rule of law, or do you think it’s ok that prosecutors can choose which illegal acts to pursue and which to let go? And if it’s ok for prosecutors to do that, why not juries?

  3. Jury nullification is when the jury chooses to ignore the law it has been charged with applying. Tobias’s jury ignored the law just like you would urge Wilson’s jury to ignore the law. I would agree with the result in Wilson’s case, but I can’t condone the method.

    That’s what jury nullification violates the rule of law. The jury essentially substitutes its judgment of what the law “should” be in place of what the law actually is. It’s no different from the President deciding he “should” have the right to wiretap people as part of the War on Terror because in his judgment it’s necessary….regardless of what the law actually says.

    If we are a government of laws rather than men, then we must enforce the law and obey it even if we disagree with it. Of course we can and should seek to have the law changed….and we can engage in things like civil disobedience to create change (but even then we must be willing to accept the consequences of breaking the law).

    The Founders put juries in the Constitution because they didn’t want only the repeat players to take part in deciding about a person’s freedom. I don’t think they wanted the law to be ignored. They just didn’t want people who were too comfortable with working inside the system to decide a man’s fate. (I’m not explaining that very well, but dinner’s on the table and I should run.)

    You DO have a point about prosecutorial discretion. I’ll have to consider that a bit.

  4. Under your conception of the rule of law, I think you still have a problem justifying judicial review. Judges are, after all, setting aside the law as written in defense of higher principles. I view jury nullification as a lower kind of review — not binding in terms of precedent because of the lesser legal education and accountability of jurors compared to judges, but equally legitimate as a part of the political process.

    Akhil Amar notes a distinction you might be receptive to. I can’t find a reference online, but I believe he is sympathetic to jury review over jury nullification. He argues that juries can legitimately refuse to convict when they judge a law to be unconstitutional or clearly unjust in a particular case (review), but not on a whim or merely on disagreement with the law in question (nullification). He argues that there is a strong case to be made that the founders’ vision of the jury included the right for jurors to consider Constitutional questions and for defense lawyers to argue unconstitutionality as a reason for acquittal.

    Amar does have a paper online that argues that the power of the American jury has been weakened over time by judges and attorneys to the detriment of democracy. I recommend giving it a read.

  5. I’ll need to look into the Amar paper and whatever that article you can’t find says, but the rule of law absolutely has a place for judicial review. Appellate judges don’t overturn laws merely because they disagree with them (at least they aren’t supposed to)…they overturn laws which violate “higher-ranking” laws. For instance, the Constitution ranks higher than state law…so sayeth the Supremacy Clause. So if a state law, say, bans interracial marriage…that law violates the Equal Protection Clause of the U.S. Constitution. The EP clause is not just a “principle”, as you describe it, but binding law in itself.

    There’s a difference between choosing not to follow the law and overturning one law because it violates a higher law.

    [More to follow on the concept of “jury review”…if I remember and have time.]

  6. Ben, you caught me in some sloppy language there. I absolutely agree that judicial review has a place in the rule of law. I also see no compelling reason not to extend that power to juries.

    Amar’s writing on jury review is in his excellent book The Bill of Rights. If you search inside the book on Amazon you can read some excerpts.

  7. Ha, interesting that everyone comments on the ‘rule of law’ and jury roles. When I read this story, I was really more interested with the gender aspects. Laws like the one this guy is in jail for are to protect women (young girls especially) and not like I am one to root for paternalistic laws (like statutory rape laws that apply only to punish men are ridiculous) but a 15 year old girl giving BJs to a room full of guys while they’re taping her? She might claim it’s consensual, I Highly doubt it. Exploitative at the least. I do not think at all that he should get 10 years for it but it’s the work of the legislatures making the laws and mandatory sentences that got him in jail. Not an overzealous prosecutor (it’s her job to prosecute those that break the law). Many prosecutors are over-zealous, and after working for defenders, I could never work for the Man. Prosecutors can suck a lot but they are also just doing their jobs. Of course they have a LOT of discretion, but they have video proof of someone violating a law? i doubt that many prosecutors would pass that up. If politicians could get off their crazy unwarranted tough-on-crime soapbox, maybe we’d get more reasonable sentencing schemes that actually make sense. not the crazy shit we have now. until then, sucks for this guy, but i can’t say i feel too bad for him.

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