Abbott Law Blog

We celebrated the Fourth of July holiday this weekend.  Inevitably, we hear about trial by jury.  Over the fourth of July holiday, we hear how much everyone loves it, reveres it and wants to preserve it.

So how is trial by jury doing?  Unfortunately, the answer to that is, not so great.

Porter Rockwell was born in New York in 1813 or 1815 and died in Salt Lake City in 1878.  He was a renowned frontiersman.  He was both praised and chided as a lawman in the Utah Territory from about 1850 till the time of his death.

Before coming to Utah, Rockwell lived in Missouri.  In 1842, someone attempted to assassinate Lilburn Boggs.  Boggs had been a controversial governor of Missouri and was running for State office at the time of the assassination attempt.  Rockwell was eventually arrested and thrown in jail, awaiting indictment.

Rockwell spent about nine months in a filthy jail under deplorable conditions.  While in jail, he successfully escaped but was quickly recaptured.  Eventually, a grand jury was convened to determine whether there was enough evidence to charge him for the attempted murder of governor Boggs.  The grand jury determined there was not enough evidence and no charges were filed.

Rather than releasing Porter, the prosecutor charged him with escaping from jail.  Rockwell was convicted of escaping from jail (even though he was wrongfully held, it was still a crime to escape).  Realizing that Porter had already spent a significant time in jail for charges that were never filed, the jury sentenced him to an additional five minutes in jail.  The prosecution was not happy.  The court and prosecutor held him for an additional five hours trying to come up with additional charges.  When they couldn’t find any new charges, they released him and he immediately fled to Illinois.

Jury verdicts of this type were not uncommon before the civil war.  England also struggled with this issue.  When the English parliament made writing a bad check a capital offense, juries refused to convict people for writing bad checks and refused to sentence them to death.

Because the prosecutors and courts felt that juries were often too sympathetic or too harsh in meting out punishments, the courts and legislatures abolished that right.  Presently, juries are rarely allowed to determine the sentence following a criminal conviction.   In Utah, juries are only allowed input on the sentence in death penalty cases.  In fact, the courts have taken it one step further.  Not only are juries now prevented from having input regarding an appropriate punishment, the lawyers are forbidden to even mention to the jury that any punishment will be given and how much that punishment might be.

Trial by jury is not nearly as significant a right as it was prior to the civil war.

More recently, trial by jury has been under a new attack.  The United States and Utah constitutions not only guarantee trial by jury in criminal cases but also in civil cases.  Many believe that juries make bad decisions in civil cases.  They are now pressing legislatures to curtail the right to trial by jury in civil cases.

For example, this last session, the Utah legislature passed a “tort reform” measure that limited the amount of general damages that a Utah jury can award in medical malpractice cases.   In other words, even if a jury believes that more money should be paid, the jury is not allowed to make that determination.  The legislature applied the cap across all cases.

I find it ironic that those who bellow the loudest during the Fourth of July holiday about the fabulous gift our founding fathers gave us by including the right to trial by jury, are frequently the same people who support bills in the legislature to further curtail the right to trial by jury.

I personally believe in the right to trial by jury.   Sometimes it is scary to put your fate in the hands of eight or twelve peers.  In my experience as an attorney, having tried numerous cases to a jury, juries almost always come to the right result.  Eight common citizens putting their minds to a task is a powerful tool.  I hope that the members of our legislature live up to their rhetoric and support trial by jury.