Jury Trial and the Problem of Punishing Government Misdeeds

The problem of government agents, in particular police, doing bad things is currently a live issue. It is one I have been concerned with for a long time — ever since Chicago police murdered two sleeping Black Panthers back when I was a graduate student in Chicago and were never charged with the crime. Looking back over old blog entries, I was reminded of a more recent and arguably equally outrageous case, the treatment of the FLDS, a fundamentalist Mormon sect that advocated and practiced polygamy, by the Texas child protection services. That was ended when a unanimous verdict of the state appeals court, followed by a unanimous holding of the Supreme Court, held that the acts were illegal, compelling the agency to return four hundred children to their parents.

In the course of the events, the agency committed multiple acts that would, if done by a private person, be tortious or criminal. They extensively lied to the press about the facts, claiming that they had found a large number of minor women who were pregnant or mothers, a claim justified by ignoring documentary evidence of age and assigning ages to the women in their custody based on their own judgement. By the time the case got to the appeals court the total number was down from thirty-one to five, with no evidence that any of them were the result of anything illegal, Texas having had a minimum age of marriage, until a few years earlier, of fourteen, later sixteen. They held prisoner two adult women in late pregnancy on the claim that they were minors, one of whom had shown them her birth certificate and was in fact twenty-two. Only after their infants were born did the authorities admit they were both adults.

Insofar as there was any basis for the initial seizure, it was the belief that minor women might be forced into unwanted marriages. A minority of the Texas Supreme Court held that that would have justified the seizure of such women — there were 27 from 14-17 — but not the rest of the four hundred children seized. Insofar as any justification was offered for seizing boys it was to prevent them from being brought up to believe in polygamy. That makes the action an attempt to destroy a religion, which fits within the current broad definition of attempted genocide.

My feeling at the time, once it became clear how outrageous the behavior of the authorities had been, was that the victims should sue. Looking back at the case, my conclusion is that if they had sued, or if they had persuaded either Texas or Federal authorities to charge those responsible with crimes, they would have lost.

The reason is the jury system. The authorities lost the legal battle but mostly won the battle for public support. Most of the newspapers, with a few honorable exceptions, treated the claims of the authorities as true and ignored or downplayed later evidence that they were false. The perception in the minds of such of the public as read the papers and did not pay careful attention to the facts was that the FLDS was a cult that compelled underage women into the harems of older men, and ought to be suppressed. An honest judge, after carefully examining the evidence, might well have supported my conclusion — that the individuals responsible for the seizures ought to be in jail and the organization owed sizable damages to those they had imprisoned and slandered. The chance that every one of twelve jurors would have been willing to agree, to take the side of a generally despised minority against the authorities of the state of Texas, is close to zero.

The requirement of unanimous jury verdicts in the U.S. legal system is a good way of making it harder for the state to use the court system to misuse its power, to convict people of things they did not do or that were not crimes. But it makes it harder, even with an honest and competent judiciary, to use the court system to punish government actors for their misdeeds. In practice the most it can be expected to do is what the Texas court system, to its credit, eventually did, make them stop doing them.

A problem for current campaigns against unjustified killing by the police.

I discuss the issue of how to enforce law against law enforcers, in the context of a wide variety of legal systems, in one chapter of my most recent nonfiction book.