Crime and Punishment in American History - Lawrence M. Friedman [158]
In any event, these California instructions certainly did not instruct. One can only guess what the poor jury made of them. In the case of William Butts, on trial for manslaughter in 1895, the instructions ran to thirteen legal-size, double-spaced pages. Nowhere in these pages is there any reference to the particular fact of the Butts case. One instruction defined manslaughter: “[It is] the unlawful killing of a human being without malice. It is of two kinds: voluntary, upon a sudden quarrel or heat of passion; involuntary, in the commission of an unlawful act which might produce death in an unlawful manner, or without due caution or circumspection.” The judge offered the jury no hint of how to apply this dreary verbiage to the case of William Butts. Nor did the judge say anything at all about the evidence. That would have been “eminently improper.”
The jury went out, talked the case over for three hours, then sent a message that they needed “further instructions.” The judge brought them back into the courtroom and asked what was up. The foreman asked for “some further instruction [as to] what is the nature of self-defense.” They wanted enlightenment. They never got it. The judge reread the page and a half of jargon on the subject: “It must be an imperious necessity, or such an apparent necessity as would impress a reasonably prudent man that it existed.” He flat-out refused to step out of his formalism, and give them some honest answers.
Of what earthly use was (and is) this kind of “instruction”? It shifts some power away from the judge, who can no longer insinuate as much to the jury as he once could. It has, of course, some advantages for the judge as well. It puts less of a work burden on him. It also cuts down (he hopes) the chance that an upper court will set aside the case because of an “error” in the instructions; and judges do not like to be reversed for any reason.
What the jury makes of the judge’s instructions, or, indeed, what the jury thinks and does in other regards remains a mystery. The jury does its work behind closed doors, and its deliberations are, on the whole, mysterious.47 Occasionally, like a flash of lightning on a dark night, a rare piece of information bursts into view. In Crabtree v. State, a Tennessee case decided in 1855, the defendant, William Crabtree, was on trial for murder.48 The jury found him guilty of manslaughter, and fixed his punishment at six years in the penitentiary. On appeal, Crabtree produced affidavits about some goings-on in the jury room. Each juror, it seems, had written down on a piece of paper how many years he wanted Crabtree imprisoned. The numbers were added up, divided by twelve, and that was the verdict. The Tennessee court reversed the conviction, because it was not “the deliberate judgment of the jury, produced by argument and reflection.” This kind of trick was, apparently, jury custom in Tennessee and some neighboring states.bi
Nobody should be surprised to learn that jurors are human beings, and that they make deals, compromises, and arrangements inside the jury room. Indeed, the whole point of the jury system is to let human beings decide, on a human basis. The doctrine of the Crabtree case seems to open up a Pandora’s box: If a defendant could convince a juror or two to lift the curtain on what went on in the jury room, he might have a crack at overturning his conviction. In Glidewell v. State, in 1885, the Tennessee court found a way to get around the Crabtree case. It was all right, said the court, for the jury to add and divide if there was “no agreement or understanding, expressed or implied, tacit or otherwise,” to be actually bound by the results of the arithmetic. They could use the technique, so long as they independently decided, after the magic number appeared, that the number was really what they wanted their verdict to be.50
What is involved here