Tuesday, May 5, 2015

Voir Dire vs Game Theory

The 14th Court of Appeals in the Lone Star State overturned the conviction of Alisha Marie Drake because the trial judge... you'd better read the opinion for yourself. I have a hard time believing this actually happened in a criminal courtroom.

via Mark Bennett

The judge arrested a juror because the juror asserted during voir dire (why attorneys can't just say "jury interviews" probably makes sense to people who spend their lives huffing wig powder) that he was unwilling to watch kiddie porn. That's evidently enough for a contempt charge.

The soul of the First Amendment be damned, I suppose.

Anyway, it should be obvious on appeal that no jury could possibly emerge from this process unbiased. You really don't need to be a lawyer to figure this out. A playground bully could tell you the same thing. Best up one kid next to the swings one day and the rest will gladly hand over their lunch money without too much fuss.

The case itself was particularly egregious. The assault was perpetrated against a 14-month child, so it's pretty understandable why emotions might run high. But we the constituents who have transacted with the state to hire trial judges demand from them the professionalism and integrity to deal with their hangups like adults. When you have the keys to the black robes and you start tampering with trials like this, it wastes scarce judicial resources. Now Texas has to retry the case.

Bigger picture, we expect the state to punish wrongdoing. Child abuse like this is heinous, depraved wrongdoing. Delaying justice because of procedural incompetence is denying justice because of procedural incompetence. Harried, overworked courts choked with victimless, revenue-generating pseudo-crime might plausibly contribute to the propensity for grotesque miscarriages of justice like this. I don't know for sure whether or not this trial judge needs to step down from the administration of justice, but I can be fairly sure there are good, competent trial judges who never get the chance to hear important cases like this because they're too busy churning through nonsense drug possession or prostitution charges.

"What should count as a crime" is a magnificent question for legislatures to ask prior to writing statutes prohibiting things they and their constituents don't like. Legislative cruft carries with it hidden costs, including jailing jurors for principled refusal to witness evidence they believe will damn their eternal souls to hell.

Euvoluntary is as euvoluntary does. Godspeed, Juror 48. You are my hero of the day.

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Do you have suggestions on where we could find more examples of this phenomenon?