The United States Supreme Court recently stuck it to one of our most cherished institutions – the American jury system.
In McDonnell v. United States, the Court overturned a unanimous jury verdict in the corruption trial of former Virginia governor Bob McDonnell. Twelve Virginian jurors decided that McDonnell broke the law when he accepted $175,000 in gifts and loans from Jonnie Williams, a CEO who sought the governor’s help for his business. The Supreme Court reversed, holding that McDonnell’s assistance in arranging meetings for Williams, contacting other officials on his behalf, and including him in events did not necessarily constitute an illegal quid pro quo.
Writing for the Court (whose decision, like the jury verdict, was unanimous), Chief Justice John J. Roberts allowed that McDonnell’s actions were, at the very least, “distasteful,” maybe “even worse.” However, “our concern is not with tawdry tales of Ferraris, Rolexes and ball gowns.” The Court’s concern was with prosecutorial overreach and the fear that jurors might interpret anything a public official accepts — from a contribution to lunch — as a quid, and anything a public official does — from arranging a meeting to inviting a guest to an event — as a quo.
The late Supreme Court Justice Potter Stewart once remarked that even if he couldn’t define hard-core pornography, “I know it when I see it.” What was good for Stewart wasn’t good for the McDonnell Court, which did not trust jurors to recognize public corruption when they see it.
In his blog, Jost on Justice, Kenneth Jost, adjunct professor at the Georgetown University Legal Center, cited McDonnell v. United States as the latest evidence “juries are an endangered species …” In her book, The Missing American Jury, Suja A. Thomas notes that juries decide only 1 to 4% of criminal cases and less than 1% of civil cases. Plea bargaining, summary judgment, mediation and arbitration have largely replaced the American jury trial. According to Jost, “the McDonnell case shows that the [Supreme] court has created and applied a body of law that relegates the jury to a second-fiddle role even in those cases that go to trial.”