The Senate confirmation hearings for Supreme Court nominee Sonja Sotomayor concluded with no real bombshells. This job is for life, and decisions here can have a profound effect on society. The stakes are high, especially given the current court, which often decides issues on a 5 to 4 vote.
No doubt Judge Sotomayor will be confirmed by the full Senate soon. She will then have to take the following oath:
"I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me under the Constitution and laws of the United States. So help me God."
It's hard to square President Obama's view that judges should have "empathy" and go with their heart in the really hard cases, with this oath. You might think and hope that as a politician, but you can't say it out loud, for goodness sakes. Lady Justice is blind. You can't put your thumb on the scales. That would undermine the entire legal system.
Fortunately, Judge Sotomayor when questioned on this said that no, judges can't rely on their heart. "They don't determine the law. Congress makes the law. The job of a judge is to apply the law. So it's not the heart that compels conclusions in cases. It's the law."
I was juror in a criminal trial recently and this notion was hammered home several times. We (the jury) took an oath swearing that we would hear the case and reach a verdict based solely on the evidence and jury instructions from the court. Although not explicitly stated, we were not to go with our heart.
The judge admonished us several times that he was a judge of the law. We were a judge of the facts. The jury selection process reinforced that as both lawyers educated potential jurors through various questions and attempts to clarify key legal concepts. Somehow I survived that process, which took two full days.
The trial took over three weeks. It was too long. The Anchorage courts meet Monday to Thursday between 8:30 a.m. and 1:30p.m. However, we rarely began before 9 and often it was as late as 10, presumably because of wrangling among the prosecutor and defense.
The longer it takes, the more time off work you need. And you forget some of the facts in the case as time goes by. I would much prefer an 8 to 4 schedule and I'd advocate for the lawyers getting in even earlier to figure out their differences so not to leave jurors twiddling their thumbs.
I won't go into the details of the trial. It was pretty much like you see on TV but much more boring, very methodical and detailed. No Perry Mason moments. And no, it wasn't "Twelve Angry Men" in the jury room, which was quite small and cramped, by the way.
Jury deliberations were a frustration to me. The judge read the instructions to us very quickly at the end of the trial. We had no chance to ask questions. We aren't lawyers and struggle with the legal meaning of "intent" and even "reasonable doubt" is subject to much debate.
Concerning the latter, it certainly doesn't mean beyond a shadow of doubt. I believe that when thinking about it you have to remember that conviction takes unanimity. All 12 jurors have to agree and that's a really high hurdle that everyone has to jump over without tipping it to get to a conviction.
Maybe statistics can shed some light here.
Suppose each juror would not convict unless they were at least 80 percent certain that the defendant was guilty. Now you might say that 80 percent is too low. But remember, all the jurors have to agree to get a conviction and the statistical odds of that happening are less than 7 percent given the aforementioned probabilities. My guess is the framers knew this when they devised this crazy jury system.
I say crazy because I've changed my mind about the merits of the "citizen juror." Having seen the way the sausage is made, I vote for professional jurors or judges to decide most cases. Ordinary people don't have the time or acumen for this. We have a really hard time keeping our hearts out of decisions and "reasonable" is open to interpretation. It's one of those things that sounds good in theory but doesn't work so well in practice.
Jeff Pantages is an investment manager who lives in Anchorage.
By JEFF PANTAGES