With jury selection completed in the criminal manslaughter trial of Brooklyn Center police officer Kim Potter for the slaying of Daunte Wright and the trial beginning today, I recalled the discussion I had during one of my periodic visits with the late Minnesota Federal Court Judge Earl R. Larson, shortly before he passed away. I asked him if he felt that any of the hundreds of juries he presided over during his 40 years on the bench reached an incorrect verdict.
The iconic jurist, who died 20 years ago this fall, was known for many landmark legal rulings, several of which I participated in during my 1 1/2 years as his law clerk. They included desegregating the Minneapolis Fire Department, establishing revised boundaries and transportation policies for public school students to advance racial integration, requiring improved conditions in state-run facilities for the disabled, and bringing about the beginning of free agency for professional athletes, among other matters. But in addition to his rulings from the bench, he oversaw numerous jury trials, ranging from massive civil antitrust cases to prosecutions of Vietnam War draft evaders, which prompted my inquiry.
Twirling his ever-present Dutch Masters cigar, he responded to my question in his characteristically laconic fashion: “Only one.”
He then mentioned, upon further questioning by me, that it involved a relatively mundane bankruptcy fraud case in which a man was criminally convicted for failing to fully disclose all of his assets.
Otherwise, he was satisfied that all of the other jury verdicts he oversaw were correct.
This view, I have come to appreciate in talking to other jurists, prosecutors, criminal defense attorneys and by my own experience as well, is shared by frequent participants in litigation, both civil and especially criminal proceedings.
Three recent cases
I was reminded of that realization in connection with the jury rulings in three high-profile cases within the last couple of weeks. Two were the criminal murder cases against Kyle Rittenhouse in Wisconsin and the slaying of Ahmaud Arbery by three men in Georgia; the other was the civil lawsuit by nine people injured in the white supremacist rally in Charlottesville, Virginia, in 2017 which President Biden later said led him to run for the presidency due to the hesitancy by President Donald Trump to condemn the pro-Confederate calumny.
All three proceedings were imbued with racial friction, were brought against white defendants on behalf of Black people or those who supported them, were decided by primarily white jurors and yielded mixed results. Using a self-defense claim, Rittenhouse was acquitted of killing two white men and injuring another with his AK-47 rifle protesting a police shooting of an unarmed Black man, elevating him to iconic status in some right-wing quarters. The three Georgia men were convicted of various murder charges for the shooting of Arbery, an unarmed Black man jogging in a mainly white neighborhood. And the nine claimants in the Charlottesville case were awarded nearly $26 million, an amount that they probably will never come close to collecting from their 17 defendants (12 individuals and five white nationalist organizations).
The trio of cases illustrates the verity of the observation of Judge Larson and others: Juries rarely get it wrong. There are, to be sure, aberrant decisions, enormously excessive civil jury damage awards or undervalued ones, and a troubling number of criminal convictions of innocent people.
But these are far from the norm and usually attributable to sympathy or passion run amok, prejudicial media reporting impacting the jurors, or suppression or withholding by prosecutors or law enforcement personnel of exculpatory evidence leading to wrongful convictions in criminal cases.
These features are inexcusable and, fortunately, rare. They can be ameliorated by presiding judges in how jurors are selected and instructed, the treatment of media reporting, and imposition of sanctions against wayward counsel or police, although sometimes it is the judges themselves who contribute to the problems.
But, as recognized in Larson’s elliptic remark, the overwhelming majority of cases are decided justly by juries. There are several reasons for this pattern.
One is that jurors take their tasks seriously and, in nearly all cases, strive hard to fulfill their oaths to assure that justice is served.
Another is the leavening effect of having multiple-member juries decide cases, 12 of them who must be unanimous in criminal cases, and usually six to 12 in civil cases. The collective recall of testimony and other evidence coupled with shared wisdom in deliberations tend to ferret out erroneous decisions.
But the most important feature is the instruction that judges customarily give to jurors before they begin their deliberations, as they did in the trio of recent high-profile cases and others as well: Rely upon your life experiences and, above all, use your common sense.
All three of these juries seemed to do that in rendering their verdicts, seemingly gaining the overwhelming approval of the public in the Arbery and Charlottesville cases.
The Rittenhouse acquittal is more problematic, especially for gun safety advocates and supporters of racial equity and the tenets of Black Lives Matter (BLM), which Rittenhouse post-trial said he supported while accepting kudos from right-wing media and politicians, including former President Trump, too, all of whom are known as hostile to BLM.
But the jury result in Kenosha is not outside the realm of reasonableness, given the high “beyond a reasonable doubt” proof standard, the user-friendly law of self-defense in Wisconsin and the convoluted jury instructions that even the judge acknowledged were “confusing,” along with the perception of trial judge’s slant in favor of the defense.
While the facts and issues in the threesome of cases differed, as did their outcomes, the bottom line is that the jurors got it right in all three of them.
It remains to be seen if the Potter jurors follow this practice. If they do, the late Judge Larson would have been proud of them.
Marshall H. Tanick is a Twin Cities constitutional and litigation attorney.