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I believe there are more instances of the abridgment of freedoms of the people by gradual and silent encroachment of those in power than by violent and sudden usurpations. (attributed)

-James Madison

The Padilla Jury

Setting aside *everything* about the Jose Padilla case that I might have been interested in discussing up to three minutes ago, I have a question about how reasonable this assessment is:

Jurors, whose names were kept secret, deliberated for about 11 hours after three months of trial in Miami and declined to publicly discuss their verdict….

In a color-coordinated display of their patriotism, the jurors wore red, white and blue clothing to court before breaking for a July 4th recess.
Eleven hours of deliberation after a huge amount of evidence presented during a trial that long is pretty unusual, and then there is that “patriotic” clothing bit. They may think they were serving American values, but let’s see what the 11th Circuit Court of Appeals has to say.

Now, am I taking that “patriotic” clothing bit as more snarky and even moonbatty than I should? I mean, it’s the July 4th recess for goodness sake. If Padilla had been exonerated, would the government be justified in complaining about that “patriotic” clothing bit? What would Mona’s take on that be? (Please, no personal attacks on Mona – she’s been the target of that on several sites and I have found it neither edifying nor entertaining. I am okay with generalizations of left-libertarians in this situation if they help to answer the question, i.e. if it goes beyond ad hominem attacks, but this absolutely will not turn into a “bash Mona” situation.)

Three questions of a more scholarly and legal nature are posed by commenter anodyne, and I am also very interested in the answers.

1.Could/Would this fact be used to support a legal claim that the jury was not impartial or fair in the Padilla case?

2. IF this fact were to be used to claim a lack of impartiality or fairness, what legal concepts, principles or precedents would be proffered to advance the claim?

3. Is there some other claim that would be grounds for an appeal that the stipulated fact would be used to support and what legal concepts, principles or precedents would be proffered to advance this claim?

Thank you in advance.

Posted by Wulf on August 18, 2007 at 06:40 PM

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There is an irrebuttable presumption that whatever is discussed in the jury room ("Hey guys, let's wear red, white & blue!") was proper and permissible.

The only exception is when there is evidence that outside influences were at work inside the jury room (e.g., jury tampering, a juror brings in and uses in the deliberations a Bible, dictionary or newspaper article about the trial, etc.).

This is not a viable avenue for appeal, any more than if the jurors had all wore green on St. Patrick's Day.

Posted by: KipEsquire at August 18, 2007 10:27 PM

I believe there are more instances of the abridgment of freedoms of the people by gradual and silent encroachment of those in power than by violent and sudden usurpations. (attributed)

-James Madison

The Padilla Jury

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