Gimme that old double standard

Why is it do you think that jurors playing Sudoku during a criminal trial amounts to a miscarriage of justice sufficient to abort a trial but it’s perfectly OK for a judge to fall asleep and snore?

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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13 years ago

I say the difference is that in the first case there’s been no verdict yet.

FDB
FDB
13 years ago

I was juror in a murder trial in the Perth Magistrate’s Court when the judge repeatedly nodded off. The defence lawyer was not at all amused, but seemed not to think it grounds for a mistrial.

Graham Bell
Graham Bell
13 years ago

Ken Parish:

You bet there is a double-standard.

Twelve innocent citizens have been brought together to waste many days out of their lives just so that a bunch of highly-qualified unjailed scallywags can justify a king’s ransom in professional fees.

This whole circus has very little to do with determining whether anyone is guilty or innocent of anything. Even the most convoluted case in the world could be decided justly within FOUR sitting days.

Time to clean out the Augian Stables that is pretending to be a legal system.

b.t.w., My heartiest congratulations to the much-maligned jurors; you have, in your understandable reaction to bum-numbing boredom, done more for advancing justice in Australia than have all the bewigged – and befuddled – professionals.

Nabakov
Nabakov
13 years ago

I was a juror once in a criminal trial where the Crown Prosecutor in his opening statement asked that the case be dismissed on the grounds of diminished responsibility because of temporary insanity (or some such phrasing).

Everyone was in full agreement from the judge to the defence Legal Aid dudess to the accused – a very mild mannered and incredibly embarrassed recent Romanian immigrant whose domestic was overheard by the neighbors who called the cops. When they turned up, he then freaked out, flashing back to when he’d been bastardised in the Romanian Army by Romanian MPs (who I suspect are total bastards). Once it dawned on him it was just the old VicPol after, he put down his shotgun (a length of pipe) and came out and apologised.

But for some reason charges were laid and had to be heard. The beak had a good squint at him and obviously agreed this was a non-event, perhaps demanding at worst a three month good behaviour bond.

However VicPol, under fire at the time for some heavy-handed efforts, used some legal loophole to insist the case be properly heard so they could get onto the record their sensitive “community-oriented” handling of this case.

Easier said than done. After two long hours of a VicPol technician doing M. Hulot impersonations with a malfunctioning tape recording of the cops responses, the Judge said “ahem” loudly, made a throat slitting gesture to the hapless tech, deliberately caught the eye of all the players, including the jury, and then announced “case dismissed”.

It was a commonsense outcome for what was basically a trivial contretemps. The Romanian guy cheerfully left arm in arm with his wife and us jurors had a nice yarn to tell others. The only people pissed off were VicPol for completely screwing up their evidence and the Judge and Crown Prosecutor for having their time wasted by a backfiring PR stunt.

Basically Justice wasn’t so much blind as bored out of her mind.

And what did us jurors do to kill time as VicPol struggled with its tapes? We surreptitiously played Hangman.

I also remember fondly the selection of a jury foreman that day. After we were sworn in (Choice of oaths too. On the Bible or non-secular.), we were ushered into a dingy little room off the courtroom and told by the tipstaff? to select a foreman.

“How?”
“See who volunteers and hold your hand up if you’re OK with ’em.”

After 10 minutes of typical Aus self-depreciating comments and mild snarking about the process, a nice old matron said well OK, she’d have a go. Done. Sorted. Then the rest of the jury discussion revolved around why we couldn’t get a decent cup of coffee or tea while twiddling our thumbs.

All in all, I feel justice was served that day in a very Australian fashion, albeit at unnecessary cost to the taxpayers.

FDB
FDB
13 years ago

“All in all, I feel justice was served that day in a very Australian fashion, albeit at unnecessary cost to the taxpayers.”

What’s unAustralian about that? ;)

Geoff
Geoff
13 years ago

I’m not a lawyer, although I am a bit of a pedant. Would the difference be that a jury is required to evaluate the facts (as presented in evidence) while a judge (that is, a judge sitting with a jury, not a judge sitting alone) is not? The judge’s job is to interpret the law, which usually doesn’t change much while he’s asleep. Of course, I’m not suggesting that sleeping judges are a good idea.

FDB
FDB
13 years ago

Sure, Geoff. That is a difference between jury and judge, but the pertinent thing to look at is the similarity. Both are required to be present during proceedings for them to be lawful. Asleep is not present in any meaningful way.

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13 years ago

Sorry to have been so cryptic, KP. I was actually supporting your point. The presiding judge had no difficulty in discharging the jury in the first case because doing so reflected no discredit on the presiding judge (himself!). The majority appellate judges in the second case were less inclined to take a step when that step would reflect discredit on the presiding judge.

Graham Bell
Graham Bell
13 years ago

Ken Parish and all:

My own experience of jury duty was very good. The bailiff took very good care of us. The judge and the judge’s associate treated us as intelligent fellow s on the same team. The only ones who spoilt it were those committing barristry. [Naturally, I cannot pass a public opinion on the accused].

Left to the judge, the judge’s associate, the court staff and the jury – guilt or innocence would have been accurately and fairly determined within a few hours …. and then justice truly done. But where was the profit in that???

Nabakov [5]:

How naughty! You used those two swear-words: Common sense and Justice.

trackback

[…] Deficiencies in the jury system have been discussed before here at Troppo.  The very future of the jury system has also come under discussion recently within the legal profession itself following a report by academic Judith Fordham on juror intimidation in Western Australia.  Malcolm McCusker QC responded in an article in Brief (not free online) which canvassed the possibility of abolition of juries.  An extract is over the fold along with further discussion: […]