There are so many interesting things to take from the 11-1 hung jury in Massachusetts v. Clancy.
Some will see a basic lack of humanity (and sense) in the criminal prosecution, or perhaps specifically a lack of humanity (and sense) in the prosecutor.
Some will see problems with an extreme form of Model Penal Code insanity—the very law that caused uproar when John Hinckley was found not guilty by reason of insanity in the shooting of President Ronald Reagan—and here an extreme form because the State must prove sanity beyond a reasonable doubt. How could any juror not have reasonable doubt that Ms. Clancy might have lacked substantial capacity either to appreciate the wrongfulness of her conduct or to conform her conduct to the law? The facts scream of plausible doubt. So, is that a good standard for the criminal law? (Maybe it is. And, regardless, maybe the judge ought to find it satisfied as a matter of law on such extreme facts.)
Some will see problems with our Swiss-cheese law of double jeopardy, a truly odd package that provides extreme protections… that basically never accomplish a thing. It’s the strongest-yet-flimsiest law one could imagine.
But there’s another problem that I often struggle to get students to appreciate: the problems with requiring unanimous verdicts. Now, to be clear, even if the federal Constitution requires jury unanimity to convict (and it does, say the modern Supremes), we could permit a supermajority to acquit or, more pertinent here, find a defendant not guilty by reason of insanity. Yet it may be telling that I believe only one American jurisdiction decouples the two, and that decoupling occurred by ‘constitutional accident,’ fascinating as that Oregon situation is. (Indeed, I will be very interested to see how it plays out over time.) Typical modern trends in criminal justice, by contrast, tend towards fairness as equal treatment, meaning we ought to treat the prosecution and defense ‘the same.’
So, for me the rub is ever requiring unanimity. It makes for all sorts of trouble, such as the necessity for—and thus endless constitutional litigation regarding—peremptory strikes, let alone the mess of ‘avoiding nullification’ and dreaded ‘Allen charges.’ So long as we require unanimity, we need to remove any ‘bad apple’ from the bunch—and, apparently, ‘nudge’—and doing so can itself be ugly and, even worse, probably is still largely ineffective.
And… if we can be real, when is the last time you were confronted with a serious group decision—and criminal prosecutions are incredibly serious group decisions—and you agreed with every single person? For me, the notion is downright loony. Being on the side of the majority might be, as the trope goes, enough to make some feel it time to switch sides… what’s that mean if you find yourself in the eerie situation of alleged unanimity? Because, yes, it is genuinely eerie to me that a sufficient group of diverse persons would ever unanimously agree on something as horrible as a criminal judgment. Criminal judgments are probably necessary, sure, but they are also horrible. Definitionally so, when you do something that will intentionally deny a human some of the basic dignities of life. And I next to never, in my twenty-five years of teaching experience, have a unanimous classroom regarding a serious, substantive issue. So, why is it that while my students ever disagree, every criminal jury in this country magically comes together in unanimity? (Or at least we pretend so, as when we don’t require they agree on ‘details.’)
The Classical Greeks did not require jury unanimity. It is hard to imagine the perhaps 501 jurors in Socrates’s trial unanimously agreeing on anything of importance. Unanimity slipped into the Anglo-American system when the church opted out of the ordeals, forcing judges to on-the-fly replace a previously-oracular declaration of god’s will with a seemingly-oracular (‘hey, it’s unanimous!’) declaration by a group of twelve humans. It may well have been the best that they could do. We certainly could choose to do otherwise, shedding the security blanket that allows us to pretend we are doing just fine.
Yet I know the suggestion will be terribly unwelcome. Despite my students never achieving unanimity on matters of substance, they come nearer on this than on just about anything else. Indeed, most of them deride a criminal system of supermajority verdicts—even if of much larger juries—as if such a thing would be downright inhuman, let alone downright un-American. Still, I tend to disagree. An approach of larger juries operating upon supermajorities for both conviction and acquittal strikes me as very worthy of consideration, with the Clancy mistrial a particular instance in which it would have done better.
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