Archive for March 16th, 2011

Jury-Made Law

We have all heard of “judge-made law.”

But Mommy Professor is very silent on the subject of “jury-made law.”

And one lesson we must learn is that silence from Mommy Professor is as important as his outright blatherings.

Talking about liquor laws reminded me of jury-made law. When Prohibition was repealed in 1933, Charleston, SC opened its bars. When you went to Charleston, there were open bars and liquor by the drink.

Once in the 1940s, Governor Olin D. Johnston, “a personal and political dry,” called the Mayor of Charleston with the press watching and said, “I demand that you close those bars in Charleston.” The mayor replied, as Johnston knew he would, “Governor, YOU close them.”

Thus were two successful political careers advanced.

As I pointed out in the case of Mississippi’s prohibition laws, there was a huge difference between MAKING a law and ENFORCING a law.

Governor Johnston would have had to bring bar owners in Charleston before a Charleston jury.

Lots o’ luck there, Olin D.

The whole concept of jury-made law has been alien to Americans since the Greatest Generation took over.

Once again, I have to tell you that I am not exaggerating here: before the Greatest Generation, jurors were really not all that intimidated by a grown man sitting there in a black dress. The reverend stillness with which people called for jury duty today was alien to pre-WWII Americans.

In fact you already know about jury made law. You know that the death penalty for theft and other minor crimes was gotten rid of because juries, knowing the judge would follow the law blindly, simply refused to convict.

That, after all the arguments, was what happened to South Carolina’s ban on liquor by the drink: Juries simply refused to convict.

But the Greatest Generation was a wholly different matter. To them, the Judge was Authority. He wore a costume and his word was, to coin a phrase, law.

Some poor bastard who had had to shoot somebody in self-defense was convicted of manslaughter by a jury because the man in the costume had told them that, according to the law, he should have thought the whole thing out in the few seconds while he was being attacked and had a gun in his hand.

I actually met one judge in my youth who was absolutely dumbfounded by the way his jury actually sent a man, for not having behaved in the manner the law says a lawyer with hours to ponder things would have behaved, to prison for the rest of his life.

He told me he had always said that a jury would NEVER convict a decent person.

But it was his first Greatest Generation jury.

No one called for jury duty today has the slightest concept of what a jury is all about.

They are there to obey.