Nullifying The Jury

by William Norman Grigg
Jan. 21, 2016

"Could we discuss potential punishments?" asked the tall, middle-aged man identified as "Juror 25" during the voir dire for the trial of Matthew Townsend on a ludicrous felony charge of "witness intimidation." His supposed offense was to publish a well-reasoned and inoffensive Facebook post complaining about being arrested without cause.

Pointing out that he had worked as a prison mentor for many years, and had actually counseled inmates facing the death penalty, the juror thought it would be worthwhile to know what would happen to Townsend if he were found guilty. Trial Judge Lynn Norton pointed out that once the trial proper began, the jury would be instructed not to consider punishment in their deliberations.

If prosecutor James Vogt succeeds in manipulating the jury into delivering a guilty verdict, Judge Norton will decide how much of Townsend's life would be stolen by the state – one possibility is a prison term of five years.

Like most people in her justifiably disreputable profession, Norton treats the jury as a trivial impediment to the efficient operation the courts, which exist to transform citizens into "offenders" for delivery to the prison system. Like most of her peers she will not countenance the idea that citizens conscripted to sit in judgment of their neighbors should also be able to determine whether the potential punishment is proportionate to the alleged offense. The jury's role is to go in the direction the judge points them, which in almost every case leads to conviction.

So determined are Norton and Ada County Assistant DA Vogt to avoid the question of proportionality that they arranged a mistrial when Townsend's defense attorney, Aaron Tribble, referred to the obvious fact that the defendant had been charged with a felony.

Vogt's artfully dishonest opening argument (discussed in more detail anon) depicted Townsend as a violent, predatory stalker who terrorized the valiant Meridian Police Officer Richard Brockbank by threatening his life and his family.

Tribble began his opening argument by pointing out that the arrest out of which the felony charge grew involved a contrived accusation of jaywalking.

At the time Brockbank inflicted his unwanted presence on him, Townsend "was protesting taxes" at a street corner in Meridian, Tribble pointed out. After Brockbank saw Townsend legally crossing an intersection – stopping briefly in the crosswalk to display his protest sign – the officer decided to "educate" his better about pedestrian safety.

Brockbank tried to induce Townsend into admitting a violation of the law. When Townsend asked if he was being charged, the annoyed and frustrated tax-feeder didn't answer, so Townsend shrugged and exercised his legal right to walk away.

"At this point, Brockbank said, `OK, I'm going to arrest you for resisting and obstructing,'" Tribble recounted. "And now what began as a jaywalking case has become a felony charge…."

It was here that Vogt objected and asked that the jury be removed from the courtroom. Once the jurors had been escorted out, Judge Norton helpfully suggested that Vogt move for a mistrial.

Tribble pointed out that the charge had been described as a felony, and that the size of the jury – fourteen panelists, evenly divided between male and female – made it clear that the offense being considered was a felony, rather than a misdemeanor. Vogt protested that the instructions to the jury do not permit them to be informed of, or take into account, potential sentencing options, and contended that they likewise "cannot take into account the degree of the offense."

I have discussed this development with several trial attorneys, all of whom said that referring to the "degree of offense" in an opening argument is a novel reason for a mistrial. Then again, the Ada County Prosecutor's Office has displayed a gift for perverse ingenuity in pursuing its jihad against Matthew Townsend.

During voir dire, Vogt had clearly prepped potential jurors to see the charges against Townsend as a violent felony. They had been informed that the charge was "intimidation of a state's witness," and to illustrate the supposed seriousness of the defendant's actions Vogt had asked jurors to imagine being threatened or robbed at gunpoint. His own opening argument was an extended riff that re-purposed a Facebook post that pointedly and repeatedly repudiated violence into a direct threat to Brockbank and his family if the officer testified against him.

"Mr. Townsend gave Brockbank a choice, and he promised consequences," Vogt intoned, mouthing the mendacious mantra he had fashioned out of the Facebook post: "I know where you all live … leave me alone or be the focus of my rage … kill me."

Tribble undermined the caricature of Townsend as a violent felon by explaining – in a presentation punctuated by no fewer than four objections from Vogt – that Townsend had been involved in the peaceful exercise of his rights when he was arrested without cause, and was now being treated as a felon for complaining about that mistreatment in public.

As has been previously reported in this space, Townsend's Facebook post, which was published on the eve of his preliminary hearing on the "resisting and obstructing" charge, was directed at Brockbank, the prosecutor's office, and everybody else representing the malign yet formless entity called "the State." It was "the State" that threatened his liberty and his life, Townsend observed, and it was to that disembodied abstraction he made the demand that the unwarranted charge against him be dropped.

He made no mention of Brockbank's testimony, nor did he seek to dissuade the officer from testifying. Precisely the opposite was the case: Townsend clearly anticipated that Brockbank would testify truthfully, and that by making clear "the REAL reason I was harassed" he would leave the court no choice but to dismiss the spurious charge.

To the extent that Townsend's statement implicated the question of Brockbank's testimony, it was an admonition to the officer to testify "freely, fully, and truthfully," rather than trying to prevent him from doing so, as the "witness intimidation" statute would require.

Vogt complained that Tribble had "poisoned" the jury through a presentation that contrasted the innocent behavior of the defendant with the seriousness of the charge against him. Norton found such contamination impermissible, which is why she prompted Vogt to move for the mistrial.

When the trial resumes on February 29, we can expect Judge Norton and her comrades in the Ada County Prosecutor's Office to do what is necessary to keep the proceedings untainted by considerations of proportionality, accuracy, and justice. They won't be willing to proceed unless they can, in effect, nullify the jury.

Judge Alex Kozinski of the Court of Appeals for the Ninth Circuit, one of the few active jurists who consistently display concern for the rights of defendants, insists that jurors should not only be allowed to consider punishments during their deliberations, but should have a role in sentencing.

"In most jurisdictions, jurors in non-capital cases are not told what the likely punishment will be if the defendant is convicted," Kozinski pointed out in a magisterial essay published by the Georgetown Law Journal. "In fact, we tell jurors not to consider punishment in deciding guilt. I don't understand why this is appropriate. In making most life decisions, we consider the consequences in determining how much effort to put into deciding and the degree of confidence we must feel before we go forward."

Conscientious individuals seek to learn everything they can about potential consequences before making life-altering decisions for themselves, Kozinski observes. Why are jurors not allowed to do the same when they're required to make decisions that will alter the life of others?

"Jurors should be told the gravity of the decision they are making so they can take it into account in deciding whether to convict or acquit," he continues. "As representatives of the community where the defendant committed his crime, the jury should be allowed to make the judgment of whether the punishment is too severe to permit a conviction. Having to confront the jury with the severity of the punishment they are seeking to extract may well deter prosecutors from using overcharging as a bargaining tool."

That last possibility implies the existence of a moral floor beneath which prosecutors will not descend. On the basis of their irrational and vindictive pursuit of Matthew Townsend, it appears that James Vogt and his professional colleagues are the kind of officials who would attack that moral floor with jackhammers.

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