RSS FeedWeird Legal News: Capricious Juries, Secret Recipes, and the Constitutional Right to Swear
Here’s a digest of some articles I collected this week that are either funny, interesting, or just plain weird.
- Blind Justice? Attractive Get Breaks with Juries – CBS News
In completely unsurprising study results, Cornell researchers have found that juries are significantly more likely to convict an ugly person than an attractive person in identical circumstances. Where evidence is strong and the case is serious, attractiveness plays less of a role. But where the charges are minor, or the evidence is ambiguous, ugly people are at a serious disadvantage. They get higher sentences too — way higher! - Toilet Brush ‘Blunder’ Death – The Sun (UK)
A man is taking legal action after an inquest found that his wife died due to serious errors by her examining doctors. The woman had somehow fallen onto a toilet brush handle which embedded itself in her buttock. The foreign object was missed by doctors. The woman died of complications during surgery to finally remove the handle — four years after she had fallen on it. - Pizza in Naples ‘cooked with wood from coffins’ – Telegraph (UK)
Prosecutors in Italy are claiming that the oak wood being used in Naples’ pizza ovens has come from a grisly source. It is alleged that gangs are digging up coffins from the local graveyard and selling the wood to owners of local pizza parlours looking to save on costs. - U.S. rights group sues to protect right to swear – Vancouver Sun
The American Civil Liberties Union is taking action against Pennsylvania police. Apparently, the cops have been arresting (and in some cases jailing) about 750 people per year simply for uttering profanities or making profane gestures. The ACLU claims that the disorderly conduct charges are unconstitutional, because swearing is protected speech under the First Amendment.
I’ll post more articles when I get some free time.
Access to justice and elected judges (conclusion)
(Part 1)
So anyone demanding the election of judges should understand this: there is a conflict between accountability and impartiality. It’s often hard to get the judges both to be independent and to answer to the people. For example, when the government throws a citizen to the wolves in a foreign country, an independent judge will lawfully award her damages. A judge worried about re-election may cave to his sense of the mood among the majority of taxpayers.
When judges apply straightforward law to straightforward facts, the accountability argument is especially weak. The law is an expression of the majority’s will. When legislatures pass laws, their straightforward applications are obvious. We expect judges to apply such laws almost mechanically. In these cases, judges are pretty much delegates of the legislature. They don’t make any law so they should not be accountable beyond the basic professional standards.
And don’t forget the Constitution—the super law. Its very purpose is to protect some principles against the majority’s will. In Canada, these principles include the makeup of our political system and the fundamental human rights. Judges can strike federal laws when they overstep the constitutional bounds. This is an awesome power of the judiciary. It usually uses it against the majority, so how can anyone expect it to be accountable to the majority at the same time?
When judges apply ambiguous non-constitutional rules, the accountability appears more important. The legislature, either intentionally or accidentally, leaves gaps in the law. It is up to the judiciary to choose one interpretation of the law when some new, unusual dispute finds a hole in the rules. Trial judges have another important power that may need accountability. They are free to decide what facts to take as the truth and what facts to ignore after hearing both parties. Sometimes, juries of ordinary citizens do this job, but in Canada usually judges “find facts”.
But even when accountability is reasonable, it is practically too difficult to have. Judges are different from politicians. Majorities have a right to call the government to account on every political decision. But as we just saw, citizens can claim a right to scrutinize only some judicial rulings. This brings difficulty and uncertainty. Most people do not have legal training. Citizens will have a hard time telling decisions open to their scorn from untouchable rulings. Using more government resources to explain or filter judicial decisions will overburden a system that is already bursting at the seams.
The good news is there are alternatives to the judiciary’s direct accountability through elections. First, we can choose judges very carefully. The Parliament is free to set standards for judicial selection. Second, we can monitor the judiciary for obvious abuse. The police are free to investigate judges suspected of crimes. The Crown is free to charge them if there is enough evidence. Third, we have the appeal route when judges make errors of law. It’s a time-tested but expensive mechanism. Finally, perhaps we should have more juries to make fact-finders more representative of the general population. Unlike the US, Canada has very few jury trials. When a jury makes a verdict, it’s one fewer judge to accuse of being unaccountable to the people.
There are good reasons to demand election of our judges. But the reasons not to are even better. In conclusive cases and in many constitutional disputes the judges should not owe any accountability to the majority. Telling the difference could be too costly for the public, but any mistakes can undermine the administration of justice or the Constitution. Judges protect us not only from illegality but also from ourselves. It’s a huge role. Much accountability is already there through law enforcement and regulation of the bench. If that’s not enough, we could use juries more often. Beyond that, we will have to trust our judges. They have usually been doing a good job anyway.
