Professor Suja Thomas authored this op-ed that first appeared on July 28, 2016 on Law360.  

OPINION: Our Juries Are Being Circumvented

Law360, New York (July 28, 2016, 9:44 AM ET) --

Government officials have a lot of unchecked power. The Freddie Gray case and a recent U.S. Supreme Court decision demonstrate how the government replaces juries, removing the jury as an important decision maker in the community and as a check on governmental power — roles that are especially important in these times.

In the Freddie Gray case, after allegedly committing criminal acts, three police officers each opted to have a judge try his case instead of a jury. The judge found each not guilty. The judge's decisions resulted in the prosecution dropping the charges against the three remaining police officers. A judge was able to try the original three cases even though the Constitution in clear terms gives these cases to juries to decide. This gave the community no say — whether not guilty or guilty — in a matter of public importance.

Even after the community — through the jury — asserts its opinion, a judge can override the decision. In one case, former Governor of Virginia Robert McDonnell was accused of bribery while in office. The facts presented to the jury showed that McDonnell and his wife had significant debt. The CEO of a drug company gave money to and bought gifts for the couple and their family, including dresses, a Rolex, golf clubs and vacations. In turn, McDonnell assisted the CEO by setting up meetings, among other things, to try to convince a university to do research on the company’s drug. In one meeting with a Virginia official, McDonnell even pulled out a bottle of the drug and told the official how the drug had worked well for him. A jury found against McDonnell, but the Supreme Court voided the jury’s decision. It decided the terms “official act” in the bribery statute should have been defined more narrowly for the jury.

Whether the terms should have been narrowed is debatable. What is clear, however, is that the case should now be sent back to a jury to decide. Instead of permitting a jury to determine whether corruption occurred, the appellate court hearing the case may simply acquit McDonnell and set him free, deciding the facts do not show corruption. Again, the community may have no say in this matter of public importance.

All of these determinations, which were not permitted at the time of the founding, are now an accepted part of our criminal system. A judge can decide a case instead of a jury, if the defendant opts for a judge. If the defendant requests a jury, a judge can decide there is insufficient evidence and not send a case to a jury. And if a jury decides a case, a judge can find the defendant not guilty after the jury convicted the defendant.

Add to this that most cases are plea-bargained. So, the prosecutor and the judge have a huge say in who is convicted, of what, and how long they go to prison.

These procedures can be used selectively to protect certain people, including the powerful, rich, favored or famous, and alternatively to punish others — often the powerless or poor. But the Constitution provides that juries were to decide these criminal cases.

Under the Constitution, juries also have power to decide civil cases in which monetary damages may be awarded. But judges can use a procedure equivalent to acquittal to dismiss cases before or after juries hear them. This often occurs in civil rights employment cases and lawsuits challenging police actions against citizens. Again, the community is not given the opportunity to weigh in on these important public matters.

Certainly a jury can make mistakes and a judge can commit errors that affect the jury. In such circumstances, after a jury trial, to correct these problems, a judge can order a new trial before another jury.

But the Constitution does not permit a jury’s determination to be replaced with a judge’s or a prosecutor’s. If it did, there would be no need for the jury in the first place or the jury would be an advisory jury such as in China and Iran.

The Constitution included an elaborate system of checks and balances. The jury was to serve as a community check on the government. But it has been eliminated — making the community more disengaged and frustrated with the government.

Suja A. Thomas is a professor of law at the University of Illinois College of Law and author of the book, The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil and Grand Juries (Cambridge University Press).


Note: The views expressed are those of the author and do not necessarily reflect the views of the University of Illinois College of Law.