Timothy P. O'Neill 

Chicago Daily Law Bulletin
Volume 150, No. 178
Copyright (c) 2004 by Law Bulletin Publishing Company

September 10, 2004

The jury has always been a cornerstone of the American constitutional system. Alexis De Tocqueville famously noted that, "The jury system ... in America [is] as direct and extreme a consequence of the sovereignty of the people as universal suffrage." And Thomas Jefferson went so far as to write, "Were I called upon to decide whether the people had best be omitted in the legislative or judiciary department, I would say it is better to leave them out of the legislative."

Several recent federal and state cases illustrate the crucial issues that continue to surround this key area of criminal procedure.

Certainly one of the biggest stories of the U.S. Supreme Court's last term was the continuation of the Apprendi Revolution in the role of juries in sentencing. Four years ago the Supreme Court stunned the criminal justice world by holding that, "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

One issue left unresolved by Apprendi was how this would affect jurisdictions that provided for "guidelines sentencing" by judges. Specifically, the issue was how to interpret the phrase "statutory maximum." The State of Washington argued that the "statutory maximum" was simply the greatest possible sentence that a judge could impose under the guidelines, and therefore a jury did not have to find the guidelines factors by proof beyond a reasonable doubt.

But the Supreme Court disagreed in Blakely v. Washington, 124 S.Ct. 2531 (2004). The court held that a statutory maximum "is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." At 2537 (emphasis in original). In other words, "statutory maximum" is defined as "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Id. (emphasis in original). The necessity for reserving this power to a jury "is no mere procedural formality, but a fundamental reservation of power in our constitutional structure." At 2538. The Apprendi-Blakely rule ensures that "the judge's authority to sentence derives wholly from the jury's verdict. Without that restriction, the jury would not exercise the control that the Framers intended." At 2539.

Although Blakely refused to speculate on what effect this would have on the U.S. Sentencing Guidelines (at 2538, n. 9), this summer the U.S. Supreme Court granted certiorari in two cases to decide that very issue. U.S. v. Booker, No. 04-104, and U.S. v. Fanfan, No. 04-105.

But even if the federal guidelines are ultimately found unconstitutional, it is unclear whether this would have retroactive effect. For on the same day Blakely came down, the court also decided Schriro v. Summerlin, 124 S.Ct. 2519. Two years ago, the court held that Apprendi mandated that the existence of an aggravating factor in a capital case must be proved to a jury rather than a judge. Ring v. Arizona, 536 U.S. 584 (2002). The defense in Schriro argued that Ring musts be held retroactive by characterizing this decision as a "watershed rule" that implicated the fundamental fairness and accuracy of the death sentence hearing.

The Supreme Court disagreed, noting that there was substantial disagreement whether juries were more accurate fact-finders than judges. The court said it therefore could not conclude that judicial fact-finding seriously diminished accuracy to the point necessary to hold that Ring was retroactive. Schriro thus suggests that the potential effect of a finding that the federal guidelines are unconstitutional is far from clear.
Blakely emphasized that the defendant was always free to waive the right to a jury under Apprendi. This brings us to the sorry state of jury waivers in Illinois criminal proceedings. For whatever reason, Illinois has refused to institute a Supreme Court rule that would regulate the waiver of a jury in the same way that rules currently regulate the waiver of counsel and the taking of guilty pleas.

This omission means that, like clockwork, an Illinois case appears illustrating the foolishness of this state of affairs. In June, for example, the 1st District Appellate Court reversed a conviction where no jury waiver was taken until after the defendant was found guilty. People v. Elders, 812 N.E.2d 649 (2004). These cases will stop only when a Supreme Court rule regulates jury waivers.

A jury can provide a perspective that cannot be obtained from a judge at a bench trial. Case in point: U.S. v. Greenpeace Inc., 314 F.Supp. 1252 (S.D. Fla. 2004).

Several members of Greenpeace, the environmental organization, boarded a vessel off the coast of Florida that they believed was carrying a shipment of illegally logged mahogany. They were arrested before they had the opportunity to unfurl a banner protesting illegal logging. The organization itself was charged in federal court with the violation of a seldom-used statute making it a misdemeanor to unlawfully board a vessel before it has completely moored.

Greenpeace requested a jury trial. The trial judge denied its request because the possible punishment was not serious enough to trigger the constitutional right to a jury trial. See, e.g., Blanton v. City of North Las Vegas, 489 U.S. 538 (1989).

But, alternatively, Greenpeace asked the trial judge to invoke his judicial discretion to grant a jury trial. U.S. District Judge Adalberto Jordon granted this request in a thoughtful opinion. He noted that more so than judges, "juries, because of their nature, better embody and represent the judgment of the community." He noted that this criminal prosecution of an organization under a seldom-invoked statute was "to put it mildly, unusual, and would benefit from a jury's collective decision-making." He stated that issues of notice and the possible political motivation for the prosecution made it a perfect candidate for judgment by a jury. He thus granted Greenpeace's request.

A somewhat similar issue was decided differently by the 9th U.S. Circuit Court of Appeals in U.S. v. Navarro-Vargas, 367 F.3d 896 (2004). This case, however, involved a federal grand jury, rather that a federal petit jury. The defendant complained that the grand jury that indicted him was specifically instructed that the grand jurors should not "judge the wisdom of the criminal laws enacted by Congress," nor should they be concerned about issues of punishment. The 9th Circuit summarily rejected this argument.

But Judge Alex Kozinski filed a thought-provoking dissent. He contended the panel had it exactly backward. Indeed, he argued, one of the main purposes of the Fifth Amendment's guarantee of a grand jury indictment for federal felonies was to allow laypeople from the community the right to decide whether certain laws did or did not deserve vigorous enforcement. Kozinski argued that this role of the grand jury is particularly crucial in federal prosecutions because -- unlike the local state prosecutor -- the local U.S. attorney is not an elected official. The federal grand jury should bring -- indeed, must bring -- the local community's values into its deliberations.
In Federalist 83, Alexander Hamilton described the jury as "the very palladium of free government." After two centuries its precise role is still being debated.