July 1, 2007, media sources report that a new study analyzing jury verdicts indicates the one in six juries make the wrong verdict.  Judges do only slightly better, but when these mistakes are made the innocent are much more likely to go to jail than the guilty are to go free. The study looked at 290 non-death penalty cases in four major US cities from 2000 to 2001.  Juries were found to be mistaken in seventeen percent of their cases while judges were wrong in twelve percent.  Juries sent twenty five percent of innocent people to jail while judges sent thirty seven percent of innocent people to jail.   Juries convicted seventy percent of the time while Judges convicted eighty two percent of the time.  Finally, the study found that Judges and Juries only agree seventy seven percent of the time. 

Lessons and Impressions: 1) The Innocent should always demand a jury trial (77% to 63%).  2) Most cases are tried by public defenders and they are out funded by the prosecution. 3)  Juries and Judges construe "Reasonable Doubt" into meaninglessness to ensure the guilty don't go free and sometimes the innocent are not so likeable as jury tend to vote for the people they like or relate more.   3)  Judges are institutionally biased to believe lying police officers and police frequently exaggerate and push the limits of the truth to ensure the guilty don't go free, i.e., O.J. Simpson case where the LAPD framed a guilty man- Mark Furman took the 5th when asked if he sprinkled O.J.'s blood on the physical evidence.   Conclusion: Hire a good lawyer and request a jury trial.

Walker County Judge Donny Peppers was arrested on suspicion of DUI on Saturday after purportedly being seen driving erractically.   The finger wagging and shaming has already started on local news blogs in our society and its war on social drinking.   With the rise of the nanny state has come the presumption of guilty.   Shame on the Shamers.   In America, all criminal defendants (rich and poor, famous and infamous) are presumed innocent until they are proven guilty beyond a reasonable doubt by a jury of their peers.

First, field sobriety evaluations are no better than flippin' a coin.  HGN commonly known as the eye test is 77% accurate at classifying drivers as sober or impaired.  The Walk and Turn test is 68% accurate.  The One Leg Stand is 66% accurate. 

Second, despite news reports to the contrary, there was no blood test, period. It takes 60 to 90 days for a blood test result to come back from the Georgia Crime Lab. If they have a result now, there was a state administered chemical test of the breath which estimates blood alcohol.  The machine is inherently inaccurate and results can vary +/- 0.02 and still be admissible in court.  That is 25% of the legal limit.  Studies have shown that the legal limit of 0.08 is equivalent to driving a car while talking on a cell phone with an ear piece or driving while 70 years of age or older.  The state breath test machine has inherent limitations such as the presence of mouth alcohol in general and from breath freshners or alcohol in asthma inhalers.  Solvents such as acetone can interfer with the breath test and mimic alcohol in the machine.  Acetone is produced naturally in the body and is commonly present in diabetics in a diabetic state or keotosis.  Radio interference from cell phones and walkie talkies can interfer with the breath machine.  In short, don't be so quick to judge until you hear all of the story because the Judge is presumed innocent.

    Adam Liptak writes in "Cases Keep Flowing In, but the Jury Pool Is Idle" in the New York Times on April 30, 2007.  Trials are dead and have been replaced by settlements and plea agreements, by mediators, arbitrators and by written orders from judges based written arguments("summary judgment").

    Jury trials have decreased from 5,800 in 1962 to 3,600 in 2006 while the filing of lawsuits have increased almost four fold. In 1962 under two percent of cases ended in summary judgment, while in 2006 over eleven percent  ended in summary judgment. By the way, what happened to that "Litigation Crisis" that the politicians and insurance companies have been complaining about? I guess the bond market has gone back up. 

This shift to decisions by judges rather than juries represents a shift to a european or continental method of jurisprudence where judges make decisions without jury input.

Federal judges have even joined in the outcry as one Judge Mr. Liptak quotes stated, "Those who have the temerity to "request the jury trial guaranteed them under the U.S. Constitution," wrote the judge, William G. Young of the Federal District Court in Boston, face "savage sentences" that can be five times as long as those meted out to defendants who plead guilty and cooperate with the government."

Judges routinely involved themselves in plea negotiations.   A method that is both questionably legal and ethical.  As a judge who threatens increased jail time after a jury trial is making a voluntary plea impossible as there is an element of coercion that can not be removed short of recusal.  This raises ethical questions as well because it creates an appearance of impropriety of collusion  between the bench and the prosecutor.

This also represents a loss of a supporting pillar of our democracy in an era of special interest politics, public relations battles and campaign contributions.  As Thomas Jefferson once wrote, "The Trial by Jury is the only anchor yet imagined by man by which a government may be bound to the principles of its Constitution."  Jefferson also is credited with stating that the right to trial by jury is more important than the right to vote in a democracy. 

Mr. Liptak echos this sentiment in his article, "Indeed, juries were central to the framers of the Constitution, who guaranteed the right to a jury trial in criminal cases, and to the drafters of the Bill of Rights, who referred to juries in the Fifth, Sixth and Seventh Amendments. Jury trials may be expensive and time-consuming, but the jury, local and populist, is a counterweight to central authority and is as important an element in the constitutional balance as the two houses of Congress, the three branches of government and the federal system itself."

  Mr. Liptak finds hope in the Seventh Amendment from an article titled "Why Summary Judgment Is Unconstitutional," published in the Virginia Law Review by Suja A. Thomas, a law professor at the University of Cincinnati.

Mr. Liptak also hopes that Justice Scalia, a strict constructionist, may be on board the jury band wagon citing a 2004 opinion, where "in the process of revitalizing the role of the jury in criminal cases, Justice Antonin Scalia of the Supreme Court wrote that there were good arguments for 'leaving justice entirely in the hands of professionals.' But that is not the theory of the Constitution, he continued, which enshrined 'the common-law ideal of limited state power accomplished by strict division of authority between judge and jury.'"

What would happen if the jury trial disappears? As the member of the inner party told the protagonist in George Orwell's 1984, One essential consequence of doublethink is that the Party can rewrite history with impunity, for "The Party is never wrong." The ultimate aim of the Party is, according to the inner party member, to gain and retain full power over all the people of Oceania; he sums this up with perhaps the most distressing prophecy of the entire novel: If you want a picture of the future, imagine a boot stamping on a human face — for ever.

We will keep trying cases until the people let the Courts and the Politicians take them away!  

The Chicago Tribune recently report on how restaurants and bars are being required by insurance companies as a prerequisite to cover to train waiters, waitresses and bartenders on when to say when.  Can you say two drink maximum?  I’d like a glass of wine with dinner?  I’m sorry sir you already had two cocktails at the bar we have a two drink maximum.  Enter ”new temperance movement,” quoting Stephen Greger, loss control director for commercial business at Fireman’s Fund Insurance Co. The California-based insurer made alcohol safety training a requirement for liquor liability coverage about 10 years ago.

Athens Clarke County Officer Gregory Gilchrist, 36, was arrested on a drunken-driving charge early Thursday, (February 15, 2007) morning in southeastern Clarke County.  An unknown type of chemical test indicated that he had a blood-alcohol content level of 0.185 although it is not clear if this was a field breath test, a blood test or an Intoxilyzer 5000 test.  He is accused of driving his pickup truck through a red light and hitting the side of a car traveling through the intersection. The woman in the car wasn’t injured. Gilchrist claims he was making a left turn with a green arrow.

After a 2006 St. Louis Rams Football game this fall an Illnois Circuit Judge refused field test, a blood test and threw away a beer can after an accident with injuries. The police indicated that the Judge who had his chief judge as a passenger had a strong odor of alcohol, slurred speech and red and glassy eyes. Why would a judge do this? Judges know that field tests are a farce and blood tests are not accurate. Judges also know that a DUI without field tests and blood tests are hard to prove because the 0.08 limit is so ridiculously low that impairment is not detectable in the absence of blood tests presumption of impairment. What should you do if you are pulled over for a DUI? Only the Judge knows!