Wednesday, September 10, 2008

One Juror Stands Up For Justice

We have a new Alabama hero today, and his name is Earl Jordan.

Jordan, a retired health and safety representative from Huntsville, is all that stood between Alabama Representative Sue Schmitz and another atrocity from the Bush Justice Department.

Actually, the fact Schmitz was prosecuted at all is an atrocity. But without Jordan, Schmitz would have been convicted. And she would have joined former Alabama Governor Don Siegelman and the three defendants in the Paul Minor case in Mississippi as victims of an administration that remains stunningly corrupt on justice issues--even as its tenure draws to a merciful close.

The Birmingham News reports that Jordan was the lone holdout for acquittal on the 12-person jury.

Let me say this up front: I did not attend the Schmitz case, and I've not seen the documents involved. But I have great respect for the journalistic and legal credentials of David Fiderer from Huffington Post and Scott Horton from Harper' Both have followed the case closely, and both know their way around the law.

Fiderer called the government's case "nonexistent." Horton said the prosecution "had no case at all." The great surprise, Horton says, was that "the court let this case go to the jury in the first place."

So how is it that 11 of 12 jurors were willing to convict?

That's a scary question, and I can only speculate about possible answers. Were 11 of the 12 jurors ding dongs who simply wanted to hurry to a decision and go home to watch ESPN? I'm sure that serving on a jury is no picnic, and I certainly don't want to question the intelligence or the dedication of the jurors who apparently were prepared to convict Sue Schmitz.

But if we have learned anything from the Siegelman and Minor cases, it is this: A judge--based on the jury instructions he gives and the evidence or witnesses he allows or blocks--can pretty much dictate the outcome of a trial, even when a jury is involved. We know for sure in the Minor case that federal judge Henry Wingate gave both unlawful jury instructions and improperly struck certain witnesses. In the Siegelman case, appellate documents indicate that Judge Mark Fuller gave unlawful jury instructions, and he had myriad conflicts of interests.

What about Judge R. David Proctor in the Schmitz case? Well, he is a George W. Bush appointee, and that does not instill much confidence. I don't know about the jury instructions he gave or the evidentiary decisions he made, but the Decatur Daily voiced concerns about the secrecy with which Proctor managed the case.

The Birmingham News story itself is curious for a number of reasons:

* How did the paper determine that Jordan was the lone holdout? Did it poll every juror, and does the paper normally cover a criminal trial in such a manner? I've been reading The Birmingham News for a long time, and I don't recall another such court story. Is it possible that prosecutors figured out the identity of the holdout and fed that information to the News?

* Why did today's coverage from The Huntsville Times differ so radically from that of the News? Certainly, there is no problem with two newspapers taking very different angles on a story. But The Birmingham News seems to go to great lengths to show how close the government came to a prosecution--and to identify the one man who stood between U.S. Attorney Alice Martin and a courtroom victory.

* Is it possible that Alice Martin is highly miffed about the outcome? Did she plan to bring a string of cases against Democratic state legislators, leading to a Republican takeover of the legislature in 2010? Did a mistrial in the first of these cases throw a major wrench into Martin's plans? Did Martin go after Earl Jordan in a fit of prosecutorial pique?

* We've already seen signs from the Alex Latifi case that Alice Martin is prone to let racial politics color her judgment. Did that happen with Earl Jordan? I have no idea if Mr. Jordan is white, black, or other. But I wonder if Martin, through The Birmingham News, is trying to send this message: "A black man kept us from getting a conviction." Notice this quote in the News, attributed to Jordan and referring to Schmitz' supervisors: "They didn't give her no direction." People of all colors and classes use incorrect grammar from time to time, and in my experience as a reporter, the usual rule is to clean things up for the reader. But the News did not do that with Mr. Jordan. My guess is that to many white ears, "They didn't give her no direction" sounds like a black man speaking. And regardless of Mr. Jordan's skin color, the quote sends the message: "This guy's not very smart." (Another thought: Is it possible that Mr. Jordan used correct grammar, but the newspaper got it wrong?) There is a belief among a fair number of white folks that black jurors will not vote to convict anybody in a criminal case. Are Alice Martin and The Birmingham News conspiring to play on that belief here?

From the Schnauzer perspective, Earl Jordan did a huge public service in a number of respects. One, he kept a woman from being convicted for crimes she almost certainly did not commit. Two, he threw a wrench into Bush Justice Department plans to define someone who allegedly underperforms on a public job as committing a federal crime--at least if the person is a Democrat. Three, he shined light on the jury process in this country, and it isn't a pretty sight.

According to Jordan, the other 11 jurors were in favor of a "compromise" verdict to find Schmitz guilty of one count of fraud. But Jordan refused and said, "I couldn't convict her."

What does it say that 11 jurors were willing to "compromise" in a criminal case, to make a deal regarding someone's freedom? If these 11 jurors thought Schmitz was guilty beyond a reasonable doubt, why were they willing to compromise in this fashion?

Does this kind of dealmaking go on with juries all the time? And if it does, what does that say about a jury's mindset.

In the Schmitz case, it appears to say that the entire jury had reasonable doubt about Sue Schmitz' guilt. But only one juror was willing to stick by his guns.

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