Excusing Judges for Knowing Too Much

[Peter Hendrickson]

At 9:54 AM 11/8/1996, Timothy C. May wrote:
>At 8:20 AM -0500 11/8/96, Jim Ray wrote:
>> been decided and appealed, because of this very possibility. I am already
>> concerned that an ambitious U.S. Attorney, using Alta Vista, could attempt
>> to argue that "cypherpunk terrorists have been secretly trying to subtly
>> influence Kozinski's thinking, and that therefore he should be removed from
>> the case in favor of some judge who has no clue whatsoever about the 'Net,
>> encryption, anonymous remailers, etc." [I am sure the argument wouldn't be
>> put quite that way <g> but that's what the U.S. Attorney would mean.] There
>> is now a judge with some idea of these issues who will IMNSHO probably be
>> fair to "our" side. It is a rare opportunity, and I don't want to "blow it."

> A valid fear, given the times we live in.

> If jurors can be dismissed for knowing "too much" about the O,J.
> case--knowing how to _read_ ensures this--then we are probably
> fast-approaching the point where judges are recused (or whatever the word
> is) from hearing cases where they've had any education whatsover on.

> (An exaggeration, of course.)

This issue has been discussed recently by a prominent author.

  "The men who murdered Virginia's [The city in Nevada. -- ph] original
twenty-six cemetary occupants were never punished.  Why?  Because
Alfred the Great, when he invented trial by jury, and knew that he
had admirably framed it to secure justice in his age of the world,
was not aware that in the nineteenth century the condition of things
would be so entirely changed that unless he rose from the grave and
altered the jury plan to meet the emergency, it would prove the most
ingenious and infallible agency for {\it defeating} justice that
human wisdom could contrive.  For how could he imagine that we
simpletons would go on using his jury plan after circumstances had
stripped it of its usefulness, any more than he could imagine that
we would go no using his candle clock after we had invented
chronometers?  In his day news could not travel fast, and hence he
could easily find a jury of honest, intelligent men who had not
heard of the case they were called to try - but in our day
of telegraph and newspapers his plan compels us to swear in juries
composed of fools and rascals, because the system rigidly excludes
honest men and men of brains.
  "I remember one of those sorrowful farces, in Virginia, which we
call a jury trial.  A noted desperado killed Mr. B, a good citizen,
in the most wanton an cold-blooded way.  Of course the papers were
full of it, and all men capable of reading read about it.  And of
course all men not deaf and dumb an idiotic talked about it.  A jury
list was made out, and Mrs. B. L., a prominent banker and a valued
citizen, was questioned precisely as he would have been questioned
in any court in America:
  "`Have you heard of this homicide?'
  "`Yes.'
  "`Have you held conversations on the subject?'
  "`Yes.'
  "`Have you formed or expressed opinions about it?'
  "`Yes.'
  "`Have you read newspaper accounts of it?'
  "`Yes.'
  "`We do not want you.'
  "A minister, intelligent, esteemed, and greatly respected; a merchant
of high character and known probity; a mining superintendent of
intelligence and unblemished reputation; a quartz-mill owner of excellent
standing, were all questioned in the same way, and all set aside.  Each
said the public talk and the newspaper reports had not so biased his
mind but that sworn testimony would overthrow his previously formed
opinions and enable him to render a verdict withou;t prejudice and in
accordance with the facts.  But of course such men could not be trusted
with the case.  Ignoramuses alone could mete out unsullied justice.
  "When the peremptory challenges were all exhausted, a jury of twelve
men was empaneled - a jury who swore they had neither heard, read,
talked about, nor expressed an opinion concerning a murder which the
very cattle in the corrals, the Indians in the sagebrush, and the stones
in the streets were cognizant of!  It was a jury composed of two
desperadoes, two low beerhouse politicians, three barkeepers, two
ranchers who could not read, and three dull, stupid, human donkeys!
It actually came out afterward that one of these latter thought that
incest and arson were the same thing.
  "The verdict rendered by this jury was, Not Guilty.  What else could
one expect?
  "The jury system puts a ban upon intelligence and honest, and a
premium upon ignorance, stupidity, and perjury.  It is a shame that
we must continue to use a worthless system because it was good a
{/it thousand} years ago.  In this age, when a gentleman of high
social standing, intelligence, and probity swears that the testimony
given under solmen oath will outweigh, with him, street talk and
newspaper reports based on mere hearsay, he is worth a hundred
jurymen who will swear to their own ignorance and stupidity, and
justice would be far safer in his hands than theirs.  Why could not
the jury law be so altered as to give men of brains and honesty an
equal chance with fools and miscreants?  Is it right to show the
present favoritism to one class of men and inflict a disability
on another, in a land whose boast is that all its citizens are
free and equal?  I am a candidate for the legislature.  I desire
to tamper with the jury law.  I wish to so alter it as to put a
premium on intelligence and character, and close the jury box against
idiots, blacklegs, and people who do not read newspapers.  But no
doubt I shall be defeated - every effort I make to save the country
`misses fire.'"

>From "Roughing It" by Mark Twain, Chapter XLVIII.

Peter Hendrickson
ph at netcom.com