Ma’at, Justice, the Golden Rule and Jury Nullification

Thursday, January 3, 2013

I inadvertently muddied the waters last night on jury nullification when I responded without thinking to a question by Judy75201, who asked if the prosecution ever benefited from jury nullification. I said, “No.”

Whonoze corrected me using my own statement.

He said,

I believe the Prof. has already answered your question in the previous thread:

“Far more likely is the wrongful conviction of innocent people, which happens possibly as often as 20% of the cases.
“I fear racist jurors would increase the already unacceptable rate off wrongful convictions, if they could ignore the evidence pursuant to jury nullification and convict minority defendants who should be acquitted.
“That danger is an every day reality in the South.”

So if the defense has not met it’s burden, and, for example, an all white jury convicts a black defendant anyway, that’s an example of jury nullification that favors the prosecution.

Prof., perhaps you could explain to all of us what role the judge’s instructions to the jury play in all of this, and whether those are typically invoked for a verdict to be labeled as “nullification” rather than just “unexpected.”

The application of the label seems to be somewhat subjective, as some might consider the Simpson or Anthony verdicts to be nullification, while others would consider that the State did NOT meet its burden in either case, depending upon how each evaluates the evidence and argument presented at trial. Do I have that right?

I thought it over and here is my response.

Yes, I stand corrected. If a racist White jury convicts a Black defendant, despite a reasonable doubt, the prosecution benefits and the wrongfully convicted defendant loses.

Of course, we usually never know why a jury does what it does because jurors are not required to reveal why they did what they did and their deliberations are not recorded. Jury deliberations are sacrosanct and no one is permitted to be present in the jury room or to listen in on jury deliberations.

I did not follow the Anthony case, so I know little about it.

I think there was a reasonable doubt in the OJ case because I know the police planted pilfered blood evidence obtained at autopsy and broke the chain of custody creating all sorts of reasonable doubt. I was a DNA consultant for the defense and followed that aspect of the case closely.

Many people disagree and think the verdict was due to jury nullification by Black jurors in retaliation for the “not guilty” verdicts returned by White jurors in the Rodney King beating case. For example, Colin Black expressed that opinion here a few days ago. For the record, I do not believe the Rodney King verdict had anything to do with the OJ verdict.

And so it goes.

Let’s take a look at the core legal principles in all criminal trials.

Despite what lawyers and judges may say, a trial is only incidentally about a search for the truth. I use the word “incidentally,” because the real purpose of a trial is to determine whether the prosecution can prove beyond a reasonable doubt that the defendant committed the crime(s) charged. The jury determines the answer to that question in a jury trial and the judge determines it in a bench trial, if a defendant knowingly, intelligently and voluntarily waives his right to a jury trial and agrees to permit the judge to decide the case.

The “truth” may or may not be revealed and become known during a trial. For example, even when a defendant has confessed to a crime, there will always be a theoretical possibility, however unlikely, that he may be innocent and have falsely confessed to the crime. My next article, for example, will be about false confessions.

In addition, even if DNA evidence supports a confession, appearing to remove all doubt regarding guilt, there will always be a theoretical possibility that the DNA evidence was fabricated or planted due to forensic fraud.

The important points to remember are that a trial is a quest to determine whether the prosecution has proved its case beyond a reasonable doubt and theoretical possibilities, in the absence of any evidence to support them, remain theoretical and cannot constitute a reasonable doubt.

We begin all criminal trials with the presumption that the defendant is innocent and must be found “not guilty,” unless the the jury decides the prosecution has overcome the presumption of innocence by proof beyond a reasonable doubt.

The defendant has no burden to produce any evidence or do anything. He can remain silent throughout the trial and elect to testify or not testify. If he does not testify, his silence cannot be held against him and the judge will instruct the jury to ignore the defendant’s “insoluble silence” as there may be any number of reasons for it that are unrelated to the issue of guilt or innocence.

The burden to overcome the presumption of innocence is placed on the prosecution and it must prove the defendant guilty beyond a reasonable doubt. Should it fail to do so, the jury must return a verdict of “not guilty.”

Reasonable doubt is defined in the jury instructions as “a doubt for which a reason exists” and it “may arise from the evidence or lack of evidence.” That is, it must be an evidence-based doubt. Either certain evidence supports the doubt or the absence of certain evidence of guilt supports the doubt. Sometimes, it’s a combination of both that supports reasonable doubt. A reasonable doubt cannot be based on suspicion, speculation or hunches.

“A reasonable doubt is such a doubt as would exist in the mind of a reasonable person after fully and fairly considering the evidence or lack of evidence.”

Either side is entitled to claim the benefit of the evidence regardless of which side introduced it.

Put another way, during deliberations, the jury is supposed to review all of the evidence that was introduced at trial and decide whether (a) there is a doubt about the defendant’s guilt and whether (b) that doubt is supported by a reason arising from the evidence or lack of evidence. In other words, an evidence-based reason. If the answer is “yes,” then the jury must acquit. If not, then it must convict.

Unless it decides not to and that is where jury nullification comes in.

There also is a possibility that a jury verdict might be based on confusion or a mistake. However, the jury instructions were specifically designed and written to reduce the possibility of a mistake or confusion as close to zero as humanly possible. All courts use standardized sets of pattern instructions and my quoted material comes from the pattern instructions in Washington State where I practiced law for many years. I know them by heart.

I looked at the pattern instructions in Florida several months ago and they are similar, if not identical. This is not surprising as all of the state and federal courts are on the same page when it comes to defining the presumption of innocence, burden of proof and proof beyond a reasonable doubt.

No one should be surprised that judges believe jury nullification is a terrible threat to due process of law and the orderly administration of justice. They have done everything they possibly can to structure trial procedure, the introduction of evidence and the jury’s deliberative process to simplify, guide and focus jury attention on the “important” stuff.

Despite their best intentions and efforts, however, justice cannot be captured in a set of definitions, procedures and step-by-step instructions.

The whole concept of Justice is greater than the sum of its individual parts, as defined by laws, court rules and jury instructions.

The ancient Egyptians understood this principle and that is why they elevated Justice to the status of a god.

They called her Ma’at and paid homage to her in all aspects of their lives and dealings with each other.

She is the basis for what we call the Golden Rule.

When you think about it, Ma’at or the desire for justice is why we have juries decide cases, and if juries are to manifest Ma’at in their decisions, they must have the power to exercise jury nullification.

Unfortunately, jury nullification, like everything in this physical dimension of space-time, including our ideas and ourselves, comes with a shadow. That shadow manifests as something evil when an all White jury wrongfully convicts an innocent Black defendant, despite reasonable doubt. The prosecution benefits in that situation.

But a jury that acquits a sick defendant undergoing chemotherapy who is technically guilty of possessing and using marijuana for medical purposes manifests Ma’at and strikes a blow for justice. I see nothing wrong with that.

As I explained in an earlier article in this series on jury nullification, I am focusing attention on the defense effort to use racism and jury nullification to deny Justice for Trayvon. I am ringing a bell and issuing a warning to the prosecution and all who seek Justice for Trayvon in hopes of reducing the probability of that outcome to zero.

So let it be written.

So let it be done.

I hope this article clears up any remaining confusion about these vitally important principles.

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Previous articles in this series:

Nitty Gritty: Three Questions for Jury to Answer in Trayvon Martin Murder Case

Jury Nullification: The Best Kept Secret in American Law

How to Nullify Jury Nullification and Obtain Justice for Trayvon Martin

Ma’at and the Golden Rule

The Ancient Egyptians believed that the universe emerged from chaos. They perceived an enduring harmony and order to it that they regarded as sacred and necessary to sustain. They believed it was created and maintained by a powerful female spiritual force or goddess whom they called Ma’at. In their view, she kept discord and chaos at bay by creating order out of disorder thereby allowing them to live in peace, prosper and be happy. They regarded this ordering principle or Ma’at to be so important that they based their code of moral and ethical conduct on it believing that Ma’at required speaking the truth and treating others with honor and respect in all matters.

Ma’at is the earliest known version of the Golden Rule. As an expression of divine wisdom, Ma’at is reminiscent of St. Thomas Aquinas’s notion of natural or moral law. For example, he believed that the “standards of morality are in some sense derived from, or entailed by, the nature of the world and the nature of human beings.” Ma’at’s sacred status as a fundamental guiding principle that had to be honored in all things created an emphasis on using law to resolve disputes in a manner consistent with Ma’at, or the spirit of the law. Their emphasis on resolving disputes in a fair and equitable manner stands out in marked contrast to the rote application of the most relevant rule in a lengthy and detailed list of rules.

Ma’at was depicted on the walls of temples and tombs performing one of her most sacred duties at the Weighing of the Heart ceremony in the Hall of Two Truths in the Duat, or Egyptian underworld. She is depicted as a young woman holding a scepter with one hand, carrying an ankh with the other, and wearing an ostrich feather tucked into her headband. Known as the feather of truth, she would remove it from her headband and place it on one plate of a scale to counterbalance the weight of a recently departed person’s heart, symbolizing the soul. If the soul were lighter than the feather, it would achieve immortality and accompany Osiris to his home in the constellation of Orion and be reborn as a star. If the soul outweighed the feather, it would achieve eternal restlessness after dying a second time devoured by Amit, depicted as a female demon with a body part lion, hippopotamus, and crocodile.

During the Old Kingdom, the pharaoh’s primary role was to maintain Ma’at in society. Known as the Lord of Ma’at, he was said to decree with his mouth the Ma’at in his heart. This was an extremely important responsibility because the natural order and cosmic harmony would be disturbed, if someone violated Ma’at and pharaoh failed to restore it by making sure that justice was done, or if pharaoh violated Ma’at by his own conduct. Eerily similar to what we modern humans call the butterfly effect, the Ancient Egyptians believed that such disruptions would unleash ever more unpredictable and serious consequences reverberating throughout the Two Lands, including droughts, floods, pestilence, starvation, blindness, epidemics of disease, and accidents resulting in serious injury or death.

Ma’at prevailed over chaos for at least a thousand years beginning no later than the time that Menes unified the Two Lands of Upper and Lower Egypt in approximately 3,000 BCE until the fabled Old Kingdom passed into history at the end of the 6th Dynasty in approximately 2186 BCE with the death of Pharaoh Pepi II. He died at the age of 92 outliving all of his heirs. His death also marked the beginning of the First Intermediate Period, a time of declining central authority and civil war between the rulers of various powerful city states within the Egyptian empire. Eleventh Dynasty Pharaoh Mentuhotep II of Thebes eventually restored Ma’at when he reunited Egypt in 2025 BCE by seizing Herakleopolis, the capitol city of the rival 10th Dynasty. This marked the beginning of the Middle Kingdom and the shift of power from Memphis (modern day Cairo) to Thebes.

I believe our criminal justice system together with our economy and society is degenerating and falling apart. I propose for consideration and discussion the following idea:

We have lost our way because too many of us have discarded Ma’at and the Golden Rule as the fundamental ordering principle guiding our lives and replaced it with Greed.