Crime and Punishment in American History - Lawrence M. Friedman [160]
A pure jury was also, ideally, an isolated jury, a jury that did not listen to rumors and noise from the outside world. Jurors were not to read about the case, talk about the case, dream about the case. A conviction for manslaughter was reversed in Tennessee in 1882 because an article about the case, published in the Chattanooga Times, reached the eyes of some members of the jury.55bk To keep the jury pure, they had to be treated like monks, or perhaps like lepers. Under the Texas code of the 1870s, in all felony cases the jury was not “permitted to separate until they have returned a verdict”; the sheriff was to provide “a suitable room” for them to deliberate in, along with “necessary food and lodging” (but no liquor of any kind); and no one was to “converse with a juryman” once the juror was impaneled.57 In Connecticut, in capital and life-sentence cases, the court had discretion to “require the jury to be and remain together” under the sheriff’s wing.58
In long, drawn-out cases, the juror’s lot was probably not a happy one. A law of Washington Territory (1877) provided that no justice of the peace could deprive a retired jury of food for more than six hours at any one time, which suggests that justices at least occasionally tried to “starve juries into submission.”59 In the sensational trial of Laura Fair in San Francisco (1871), the jurors were locked up at night in hotel rooms. The trial dragged on for weeks. The judge allowed them to go to church, to the theater, and to the race track; but family life was out of the question. One Sunday, the judge kindly let the jurors visit their homes: all twelve went together, in carriages, with a deputy; each juror had the chance to kiss his wife and children, while eleven other men and a deputy looked on. One of the jurors was a bachelor, and the whole entourage trooped over to see his girlfriend. She was “not enchanted by this unexpected visit by a dozen strange men, most of them middle-aged and all enveloped in the warm and heady aroma of good cigars and good wine.” This visit was particularly awkward, as one can easily imagine.60 Afterwards, the carriages took the jurors back to their dreaded hotel.
The Decline of Trial by Jury
Another duality in the heart of the legal system was even more fundamental: the gap between theory and practice. The average burgher and his wife, if they heard a speech about defendants’ rights, about the presumption of innocence, about the wonders and the fairness of the system, would no doubt nod in solemn agreement. This was America, by God! But the same pair also wanted an efficient, effective system; they wanted to sleep soundly at night; they wanted security, law and order; they wanted the police to sweep vagrants and tramps off the street, to get rid of the scruffy, disgusting human flotsam that disfigured their cities; they wanted the police to catch dangerous criminals who robbed and stole and assaulted; they wanted the system to convict these men and put them away. The system, in real life, was equally ambivalent; it bounced from one pole to the other.
The official theory exalted trial by jury; this was a vital safeguard of liberty, a “palladium” of liberty no decent system of justice could do without.bl When the United States gobbled up land (Louisiana, Florida, Texas, the Southwest) once part of the civil law world, whose French and Spanish and Mexican roots were juryless, the conquerors immediately swept away the old methods of handling criminals and imposed trial by jury instead. The Louisiana Constitution provided for a “speedy public trial by an impartial jury of the vicinage.” Although the clash of legal cultures was an issue in Louisiana, generally speaking,