A remarkable illustration of the gulf between UK and US policy on juries is to be found in this story from Sentencing Law and Policy, itself commenting on a piece in The Washington Times about the acquittal of Antwuan Ball in November 2007 on every count of a huge racketeering, drug conspiracy and murder indictment except a minor crack-cocaine deal seven years ago.
You might think that Ball would be joyously emerging from his ordeal with thoughts of liberty and a life of new-found virtue ahead of him. Instead, however, prosecutors are asking U.S. District Judge Richard W. Roberts to send Ball to prison for 40 years. How so? They are utilising a little-known nuance of US criminal law known as ‘acquitted and uncharged conduct sentencing’, which means they can ask the court to consider charges that were never filed or conduct the jury either rejected outright or was never asked to consider.
So far, so peculiar. But let us not speculate on the evidence, and whether some of it might have been ruled inadmissible, still less on the potential for eccentricity among the jurors. Indeed, so far as the latter is concerned, it appears non-existent, for one juror has written a lengthy excoriation of the efforts to deploy acquitted and uncharged conduct sentencing in this case, which, into the bargain, reveals that this jury was manifestly aware of its destiny to adjudge the facts before it. Here is an excerpt:
As you remember, Judge Roberts, we spent 8 months listening to the evidence, filling countless court-supplied notebooks, making summaries of those notes, and even creating card catalogues to keep track of all the witnesses and their statements. We deliberated for over 2 months, 4 days a week, 8 hours a day. We went over everything in detail. If any of our fellow jurors had a doubt, a question, an idea, or just wanted something repeated, we all stopped and made time. Conspiracy? A crew? With the evidence the prosecutor presented, not one among us could see it. Racketeering? We dismissed that even more quickly. No conspiracy shown but more importantly, where was the money? No big bank accounts. Mostly old cars. Small apartments or living with relatives.
It seems to me a tragedy that one is asked to serve on a jury, serves, but then finds their work may not be given the credit it deserves. We, the jury, all took our charge seriously. We virtually gave up our private lives to devote our time to the cause of justice, and it is a very noble cause as you know, sir. We looked across the table at one another in respect and in sympathy. We listened, we thought, we argued, we got mad and left the room, we broke, we rested that charge until tomorrow, we went on. Eventually, through every hour-long tape of a single drug sale, hundreds of pages of transcripts, ballistics evidence, and photos, we delivered to you our verdicts.
What does it say to our contribution as jurors when we see our verdicts, in my personal view, not given their proper weight. It appears to me that these defendants are being sentenced not on the charges for which they have been found guilty but on the charges for which the District Attorney’s office would have liked them to have been found guilty. Had they shown us hard evidence, that might have been the outcome, but that was not the case.
Perhaps the most remarkable nature of this letter is not its content but the fact that we are able to debate it. Here, it has long been held to be a contempt of court to solicit or disclose a juror’s deliberations. In America, the absence of this rule means that we can see how justice is done – and better assess whether the likes of Antwuan Ball ought to be spending the rest of his life behind bars.
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