Thursday, February 9, 2017

On Compromise

There is much discussion in recent years bemoaning a lack of compromise in our public life, in particular in our politics. Respected voices on all sides of the political dynamic have counseled for decades, if not centuries, that compromise is both necessary and prudent. Edmund Burke, viewed by many as the founder of modern conservatism wrote: "All government, indeed every human benefit and enjoyment, every virtue, and every prudent act, is founded on compromise and barter". Allow me to argue, at least as it relates to basic principles, that Mr. Burke vastly overstates his case.

Verdicts in criminal trials in most every jurisdiction I'm aware of need to be unanimous. That is, all of the jurors (usually 12) need to vote either "guilty" or "not guilty" for there to be a verdict. If unanimity is not achieved, a mistrial is declared and the case can either be retried or dismissed. In every jury selection I am involved in, I talk to the prospective jurors about the concept that it is imperative for each of them to make up their own minds individually. That, yes, they should listen to their fellow jurors carefully and test what they think and believe the evidence shows (or doesn't) versus what the other jurors think and believe. That they should do so with an open mind and not in an adversarial manner. But, that at the end of the day (or days) that each individual must make up their own mind. And that giving up what they believe in an effort to reach compromise or consensus would be wrong. That, in fact, is the law, at least here in North Carolina. I ask jurors if I have their assurance that they will make up their own mind and that they won't simply "go along to get along".

I had that discussion with the potential jurors in the case I was trying this past week. Those I pressed on the issue assured me that they understood the importance of the concept and firmly believed it and supported it. And then the rubber met the road. After all the evidence was in, we gave closing arguments. Closing and cross-examination are the things I do best at trial, and I nailed this one. It was a very difficult case from a defense perspective, but I had won an important evidentiary motion early in the case and closing clicked. After you do this for awhile, you know when it's good and when it's just OK, and when I sat down I knew this one was good. What on first glance looked like a case the State would easily win, was now a battle. The jury was out for over 5 hours, which is pretty lengthy for a breaking and entering and larceny case. Once the clock passed 4:30, I started to get tense. Every defense lawyer who has tried enough cases knows that the time in between 4:30 and 5:00 is a dangerous time. You are reaching the end of the day. If there's not a verdict by 5:00, the judge is going to send the jurors home and bring them back the next day. I've had juries come back literally at 5:00 on the nose with a guilty verdict. Sure enough, at 4:45, we got word that there was a verdict. I still had hopes that I had pulled out an acquittal, but "5:00 verdicts" are almost always guilty. The jury was brought in and the clerk began to read the verdict. On the charge of larceny after breaking and entering, "not guilty"! A brief moment of hope. And then, on the charges of breaking and entering and conspiracy to commit breaking and entering, "guilty". Son of a ..........! A compromise verdict. Without boring you with detail on the elements of the crimes and the law of acting in concert, suffice it to say there is no logical way for a jury to reach those verdicts. What had happened, clearly, was that the jury was split and, rather than come back the next day and continue deliberating and, maybe, never being able to reach a unanimous verdict. they compromised and rendered an inconsistent verdict (as a side note, inconsistent verdicts are not legally improper).

The problem, of course, is that the jurors weren't trying to decide where to go to lunch. They were debating about a person's freedom. There are times to compromise. Lots of times. Many times. Not just on inconsequential matters either. But there are times when the principle is more important. I have no wisdom on when that line is crossed between very important matters and matters of principle. All I know is, jury deliberations in a criminal case is one of those times. So, no, Mr. Burke, every virtue is not founded on compromise. Sometimes compromise is the absolute antithesis of virtue.