Talk About a Plot Twist! Jury information with Judge Hopkins

Today our guest is the Honorable Judge Hopkins.
Judge, would you introduce yourself to everyone?

Judge Hopkins-
My name is Bill Hopkins and I have been in the legal profession since 1971. I have been a civil attorney, criminal defense attorney, prosecutor, administrative law judge, and trial court judge, all in the state of Missouri.

Fiona - 

This article is "Jury Nullification in Criminal Trials" which is not something I've ever heard of before. But you're going to walk us through this new way of twisting our plots. I'm just going to let you have free rein.

Judge Hopkins -
Doug Linder wrote an article about jury nullification, which I recommend to you. It’s found HERE


“Jury nullification” is a fancy legal term for what happens when a jury doesn’t buy the prosecutor’s reason for the state’s case even though the defendant is truly guilty of a crime. In other words, the jury cancels the effect of a law that they don’t like. The law may be in their minds immoral or unfair or wrongly applied to the defendant (the one on trial).

Now, as a writer, you could develop a thousand or more plots just on the information set out above. For example: Is there a defendant who admits to killing his ailing wife who was suffering from terminal cancer and was in pain so extreme that no drug could alleviate it? A jury may have a great deal of sympathy for the surviving husband. The jury lets him go although he is definitely guilty of murder. But, wait! A month after the trial, a juror finds out that the “grieving husband” had his wife take out a million dollar life insurance policy when she was healthy. The insurance carrier has paid off. Now the defendant is going to Belize with his sweetie who he’d been seeing long before his wife got sick. The informed juror convinces all the other jurors to help him kill the grieving husband. The Case of the Informed Juror. Sounds like an Agatha Christie plot. Or maybe Perry Mason.

Linder, in the article cited above, asks if juries have the right to nullify. Juries clearly have the power to nullify. But that doesn’t mean they have the right to nullify. If the jury in a criminal case finds a defendant not guilty (which, by the way is not the same as “innocent”) then the state can never prosecute the defendant again. The Fifth Amendment to the Constitution states (in part) that no person shall “...be subject for the same offense to be twice put in jeopardy of life or limb....” The state is allowed to try a defendant only once.

Today, courts not only don’t want to tell juries that they can nullify (or cancel) a criminal law they don’t like, they are often actively discouraged to nullify. In Missouri, for example, jury nullification is not allowed. Things could be different in whatever jurisdiction you’re writing about. Checking with the state bar in the capitol would be the best way to find information about legal questions where you live.

Judges in Missouri instruct jurors that it is their duty to apply the law as it is given to them, whether they agree with the law or not. And, I suspect, it would be reversible error for a defense lawyer in my state to use jury nullification in a closing argument for a client.

The Case of the Unwelcome Snitch. Another plot might be that a jury really wants to free a person who is clearly guilty. One of the jurors who wants to send the defendant to prison, sneaks a note to the judge, explaining that the jury’s deliberations are wandering into forbidden territory. There’s a hung jury and later the snitch is found dead behind the courthouse, beaten to death with the judge’s gavel. That’s kind of flimsy, but you get my drift.

Linder reports that many legal scholars “have suggested that it is unfair to have a defendant's fate depend upon whether he is lucky enough to have a jury that knows it has the power to nullify.”

I won’t comment whether I think jury nullification is fair or unfair. However, I know that judges worry that courtrooms will become hotbeds of anarchy if jurors are told they have the power (but not necessarily the right or duty) to nullify a law. Judges also worry that jurors do not have the legal training to decide what the law is or isn’t. Jurors should decide facts only and apply the law that the jury instructions give them, whether they agree with the law or not. That’s what most judges (I suspect) believe today.

As I said, this is an article about criminal trials. Today, in America, there is very little control over prosecutors, who, in some ways, have more power than judges do. I was a prosecutor once. I could’ve announced in the newspapers that I was investigating Suzy Saintly Citizen for smuggling dope from Canada. There would be a flurry of news. Then I could say, “Sorry. There’s not enough evidence to charge Suzy Saintly Citizen for this serious crime.” If I were a deceitful prosecutor and knew she had never so much as stepped on a crack in an attempt to break her mother’s back when she was in kindergarten, I have now ruined her reputation. Nothing could be done to me as a prosecutor. Note that everything I said to the newspaper was true: (1) I’m investigating a leading citizen of the town, and (2) I’ve decided that there’s not enough evidence to charge her. 

Another plot: The Case of the Slimy Prosecutor.

Linder’s article concludes: “[J]ury nullification provides an important mechanism for feedback. Jurors sometimes use nullification to send messages to prosecutors about...what they see as harassing or abusive prosecutions. Jury nullification prevents our criminal justice system from becoming too rigid—it provides some play in the joints for justice, if jurors use their power wisely.”

I could go along with that. A good book on criminal law that every crime writer should have is by Leslie Budewitz:

Full disclosure: I am in the book!


Fiona - 

So fun!

Thank you so much for this information. Would you please take a minute and tell us about your latest book?

Judge Hopkins -
My latest book DISHONEST CORPSE was out last year: 

The ebook versions of my first two books (COURTING MURDER and RIVER MOURN) are FREE from Amazon. Courting Murder.

Fiona- 

Free books? Woohoo!!!

Thanks for joining us. Happy reading and writing!

I'll Be the Judge of that: The Power of the Gavel - Info for Writers with Judge Hopkins

ThrillWriting welcomes Judge Bill Hopkins.

To read another interview with Bill go to: "Judgemental"

Fiona -
Judge, thank you for coming by and helping us writers write it right. I hoped to talk to you today about POWER! That gavel is formidable.

Today, let's on work on writing a courtroom scene right. 

What's your first bit of advice for writers?

Bill - 

If you want a courtroom scene to read right, go visit your local courthouse and sit in on trials or docket calls or whatever they have going. Most judges (I hope) would be happy to explain the difference between a civil and a criminal case. Most civil and all criminal cases (except juvenile) are open to the public.

Fiona - 
The reality of going to sit in on a case is not what you see on TV. What are your pet peeves about TV courtroom depiction?


Bill - 
My pet peeve is how exciting court is depicted on television. One time a guy came in my office with a holstered weapon and another time a woman ran out of court and a deputy latched onto her and dragged her back. That's about it for my exciting times. Most court (even criminal stuff) is tedious.

Obviously, the people involved are very much concerned about how the court session turns out. I always kept that in mind. These people may be here for the first and only time in the court system. I had to get it right.

Fiona - 
When I'm up at the courts, I'm always surprised by how casually people dress. On TV everyone looks extremely conservative and I've never seen anyone show up in rabbit-patterned fleece pajamas. But in real life, I have, indeed. 

What did people usually wear in your courtroom (outside of the lawyers) And tell truth, were you wear in your rabbit fleece pjs under your robe?

Bill - 

I started in 1975. People would rarely come to court dressed as casually as they do now, although it did happen. Once I had a young woman come in who was just barely modest. I asked her lawyer where his client lived. Not too far away, he said. I said, "You send her home to put clothes on, and I'll be waiting for her here." Her lawyer said, "I'm sorry, Your Honor. I didn't know that was a rule." I said, "That's not a rule. That's common sense." He still despises me.

And, yes, I have now seen people (usually young women) come to court dressed in pajamas. I wouldn't go to a moonshine still in pajamas, much less a courtroom. This action literally astounds me when I see it.

Fiona - 
Being a judge, is it like actually having a super-power?

Bill - 
Maybe. But it's one that must be used rarely. 

The power a judge has can be awesome (using the correct definition of the word). It's something that judges should use carefully. I will use myself for an example. Once, a person called to jury duty failed to show up. I issued an order, compelling her to appear and show cause why I shouldn't throw her in jail. She showed up and had no excuse for not showing up. I said, "I can either throw you in jail overnight or fine you $50." She said she'd take the overnight jail stay.

            Woman argues with judge and ends up with 300 days in jail

The bad judges don't last long. At least that's been my experience by watching a bunch of judges fall from grace since the time I started practicing law in the 1970s. There are lots of temptations and I had my share. But I always found that no temptation was worth my job and reputation.

Fiona -
What confines a judge when making decisions about sentencing. I've heard of some pretty out-of-the-box ways that judges have meted out punishments. When do you have flexibility to be creative and when is there a mandate and you have very little choice?

Jail or Pepper Spray!

Bill -
In most state courts (but not in federal courts) a judge usually has a minimum and a maximum in sentencing. If it's a felony, the judge will usually get a pre-sentence investigation report before the actual sentencing. The person making the report will recommend what sentence the judge should mete out. Judges, in my experience, usually follow that recommendation.

In the state courts, there is also a review available to people who have plead guilty to a felony. For example, in Missouri it's called a post conviction review. Another trial court judge will look at the sentence and say yes, it was fair (about 99%) or no, it wasn't.

In federal court, according to what I've heard, the sentence is mandated. The judge has very little discretion. This has caused a lot of injustices with people being given harsh sentences for minor crimes. I knew this wouldn't work when it was passed in the 1980s, and I was right.

Fiona -
I have never before heard of a pre-sentence investigation report Can you tell me who compiles the report and what kind sort things are taken in to consideration? Also, do both lawyers get a copy? Or is that for the judge's eyes only?

Bill -
The probation and/or parole officers usually compile these reports. The person's record, co-operation with this arrest, home situation, drug (alcohol, pot, etc.) use, and all other good and bad points for the defendant are considered. Prosecution and defense both get copies. It's a public document. In fact, most everything is public in criminal cases. We don't have star chamber proceedings as they did in England before the Revolution. We do have secret FISA courts, which are federal courts which decide on security issues and which I think are grossly unconstitutional.

Fiona - 
I often see on the news that the victims have an opportunity to address the courts. To say how the criminal actions have impacted them and their families. Is there room to take this information into the decision making about sentencing or are you following that pre-sentence investigation report?

Bill - 
Yes, that's a victim impact statement. I think it's great that courts are taking a victim's perspective into account. However, you must remember that some victims are not exactly angels.

Fiona -
What's the most unorthodox punishment you handed down and why did you do it?

Bill - 
I had offenders who had littered clean up the main street of our little town, which meant that all their friends would drive up and down and honk and refer to them by rude names. It was quite effective.

Fiona - 
What "seals the deal" when you're making up your mind about the offenders culpability?

Bill - 
If you're talking about a non-jury trial, I'd say that most defendants want to testify. Their lawyers hate that. But if they do testify, defendants almost always start running off at the mouth and blab some incriminating evidence. Thus, I'd encourage the defendants to talk. In a non-jury trial, the judge can get away with asking lots of questions that he couldn't and shouldn't ask in front of a jury.

Fiona - 
That's interesting. Did you prefer jury-ed or non-jury-ed trials. And in a jury trial - did you ever just really disagree with their decision?

Bill - 
I liked both kinds of trials. What was interesting in a jury trial is that after the verdict is rendered and the judge dismisses the jury, anyone can talk to them and ask them why they decided the way they did. That was always interesting. I never disagreed with a jury that I remember. I was the neutral in the situation and just watched things unfold.

Fiona - 
You must have heard some difficult things over the years. What coping mechanisms did you put in place. Also, did everyone want to be your friend? You know...just in case.

Bill -
The most disturbing case I heard was a young man who pledged a fraternity was literally beaten to death by the active members in an alleged initiation rite. I had to watch the young man's momma look at pictures of her dead child and identify them. Not good.

People I knew who were or thought they were my good friends always got another judge, not me. I made sure of that.

When you're in the public eye, someone is always out to get you. I always understood that from the very beginning of my career.

Fiona - 
What did you do/could you do to protect yourself and your family (I mean ex-cons, sometimes feel a little upset.)

Bill - 
I have always been well-armed.

Fiona - 
Check out how Bill puts his knowledge into his writing for FREE!

LINK to FREE BOOK

And as always, a big thank you stopping by. Thank you, too, for your support. When you buy my books, you make it possible for me to continue to bring you helpful articles and keep ThrillWriting free and accessible to all.