The Due Process Clause of the Fifth and Fourteenth amendments to the United States Constitution is the vehicle which actualizes the Bill of Rights. Due Process isn’t entrenched in precedent perpetuating, historically mired injustices. Due Process forges evolving ideals and principles of justice. Fundamental rights guaranteed by the Constitution prohibit the deprivation of life, liberty, or property without due process of law. Due Process applies to administrative, civil, and criminal arenas of law. It is most imperative in the domain of criminal law. The abuse of government authority can result in devastating and irreversible consequences. Procedural and substantive facets of Due Process apply to every stage of criminal justice, from law enforcement, prosecution, trial court proceedings, sentencing, to the exhaustion of appeals. The accused is entitled to a fair and impartial trial by a jury of peers. Juror fitness includes a commitment to set aside personal biases, presume the accused innocent, and enter a verdict based solely on the evidence presented at trial applied to the law in the court’s instructions.
Some cases evoke such empathy or sympathy that verdicts are swayed in an accused’s favor. This
is known as “jury nullification.” It occurs when a jury returns a not guilty verdict irrespective of compelling evidence of guilt. By nullification jurors temper the letter of the law with the spirit of mercy.
There is a flip side to “jury nullification” which may be coined “jury vigilantefication.” Prejudicial pretrial publicity can infiltrate all venues from which a jury can lawfully be summoned. It occurs when a crime grossly deviates from prevailing norms of ethics, morality, or humanity. Brutal police officers, mass murderers, high profile public officials and celebrities may commit offenses generating widespread opprobrium which serves to place them at the risk of jury vigilantefication.
Broadcasts of police brutality run amok in the media. Some are attended by video bodycam and cell phone recordings. Newspapers headline egregious police brutality front page and in bold print. Although a factor, the truncheon of police brutality must not be restricted to racial animus. Police brutality is primarily a manifestation of the abuse of police power, enhanced by an absence of career ending accountability, as a lack of effective supervision. When prejudicial pretrial publicity attending police brutality is released, the cat is out of the bag. Jurors may be unable to herd the cat of presumed innocence, notwithstanding assurances to the contrary. The conscious commitment to be fair and impartial may be compromised in the subconscious. Jury vigilantefication, as jury nullification, constitutes an abuse of power rendering the jury an instrument of vengeance.
Jury nullification and jury vigilantefication appear to travel in diametrically opposed directions. One serves mercy, the other vengeance. They are in fact strange bedfellows. Each undermines the rule of law, the capstone of the judicial system.
Former Minneapolis police officer Derek Chauvin is appealing his murder and manslaughter convictions in the death of George Floyd. Headlines and videos portrayed Floyd handcuffed and defenseless as he writhed under Chauvin’s knee gasping “I can’t breathe.” His ordeal was cruel, and lamentably not unusual. Floyd’s fatal rendezvous with a badge-wearing Grim Reaper, although not to be trivialized, was a walk in the park in comparison to the horrific ordeal of police brutality inflicted against Tyre Nichols. Floyd crystalized pent-up anger against police brutality and discriminatory law enforcement. “I can’t breathe” unleashed a seismic quake on the Richter scale of social outrage. Nichols’ dying plea for his mother unleashed an emotional Tsunami no words can express.
Irrespective of the gravity of a crime, an acquittal is required unless every element is established beyond a reasonable doubt. The plea “I can’t breathe” was the elephant in Chauvin’s jury room. Floyd’s ordeal likely stoked the passions of jurors of color who, but for the grace of God, were not walking in his shoes. Vigilantefication was a pressure valve to release pent-up anger. The guilty verdicts sent a clear message from the halls of justice, as did demonstrations from the streets. If Chauvin prevails on appeal, the elephant in the jury room may be overwhelmed by a pack of monsters in blue savagely beating a bound and helpless Tyre Nichols to death. Retrial will present daunting challenges.
Ralph Josephsohn is a longtime resident of Longmont and a semi-retired attorney.
