On the eve of those arguments on April 29, three of the jurors reaffirmed their verdicts in interviews with a reporter for the Associated Press. “Politics as usual that’s a lousy excuse,” juror Daniel R. Hottle told the AP’s Larry O’Dell. Two other jurors told O’Dell they stood by their verdicts. The other nine declined to be interviewed.
Just as the jurors were unanimous, the eight justices were unanimous in voting to reverse McDonnell’s convictions. The idea of “politics as usual” that Hottle rejected turns out, in the court’s view, to be an essential part of American democracy. “The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns,” Chief Justice John G. Roberts Jr. wrote. A free lunch or campaign contribution, Roberts said, does not transform constituent service into illegal quid pro quo graft.
Trial by jury is guaranteed in the Constitution in Article III, which establishes the federal judiciary, and in the Sixth and Seventh Amendments of the Bill of Rights. Yet the court’s decision in McDonnell v. United States is the latest evidence that for all the lip service given to the jury system, juries are an endangered species today in federal and state courts alike.
Plea bargaining in criminal cases and settlements or arbitration in civil cases are the preferred way of doing business in courthouses all around the country today. Eliminating jury trials saves time, money, uncertainty, and emotional wear and tear. The Supreme Court bears some but not most of the blame for the trend. Yet the McDonnell case shows that the court has created and applied a body of law that relegates the jury to a second-fiddle role even in those few cases that actually go to trial.
The court concluded that McDonnell’s role in setting up meetings or hosting events for Williams did not amount to “official acts” as defined in the federal anti-bribery law. The jury listened to the evidence, applied it to the law that the judge gave them, and came to a different conclusion than Roberts did later. But Roberts had a precedent to cite.
Two decades earlier, a federal jury had convicted a California agricultural trade association under the same law for giving some $5,000 worth of gifts to the secretary of agriculture. The Supreme Court found no connection between the gifts and any “official acts.” Making “token gifts” to public officials, Justice Antonin Scalia wrote in Sun-Diamond Growers Association v. United States (1999), would produce a “peculiar result.”
Two juries, two decades apart, rejected “pay for play” politics, but not the Supreme Court. These are not isolated cases. To the contrary, the court has been an active participant for decades in reducing the role and power of the jury in American law, as University of Illinois law professor Suja Thomas explains in her alarm-raising book The Missing American Jury. The court has adopted rules of criminal and civil procedure that give judges the power to take cases away from juries or to throw out jury verdicts based on the judges’ view of evidence.
The court has blessed plea bargaining and left the process largely unregulated, shifting the power to define and punish crimes from juries to the executive branch. In civil cases, the Rehnquist and Roberts Courts have given businesses and employers free rein to divert legal disputes from the courts into arbitration: a largely secretive process with no role for lay jurors.
The court has also neutered juries in civil suits against government employees, in particular police officers, through the expansive use of a legal doctrine known as “qualified immunity.” A police officer cannot be found liable for violating an individual’s rights, this doctrine holds, unless the right was firmly established beforehand. Under this doctrine, police officers accused of unlawful searches or excessive force are often spared trial or any verdicts thrown out afterward.
Consider the somewhat different case that a wrongfully convicted defendant, John Thompson, brought against New Orleans’ famed district attorney Harry Connick Sr. for violating his rights. Connick’s prosecutors had failed to disclose “exculpatory evidence” as required under Supreme Court precedent. Thompson sued Connick, and a jury awarded him $14 million for his 14 years of wrongful imprisonment. But the Supreme Court threw out the verdict. The 5-4 majority in Connick v. Thompson (2011) disagreed with Connick’s juror-constituents in holding him responsible for the conceded rights violation.
Jury trials may be more expensive than plea bargained or negotiated justice, but the Supreme Court in these cases shows that the neutering of the jury is not so much about efficiency as it is about power. As Professor Thomas points out, juries were created as the voice of the community, but jurors’ voices matter less and less these days. Thus, McDonnell juror Kathleen Carmody found the Supreme Court’s decision “very disappointing.” McDonnell was “absolutely guilty,” Carmody told a local television reporter. Thomas was disappointed too. The decision, she wrote in an op-ed for Law360, removed the jury as a check on government power, an “especially important role” in these times.