We celebrated the Fourth of July holiday this weekend.  Inevitably, we hear about trial by jury.  Over the fourth of July holiday, we hear how much everyone loves it, reveres it and wants to preserve it.

So how is trial by jury doing?  Unfortunately, the answer to that is, not so great.

Porter Rockwell was born in New York in 1813 or 1815 and died in Salt Lake City in 1878.  He was a renowned frontiersman.  He was both praised and chided as a lawman in the Utah Territory from about 1850 till the time of his death.

Before coming to Utah, Rockwell lived in Missouri.  In 1842, someone attempted to assassinate Lilburn Boggs.  Boggs had been a controversial governor of Missouri and was running for State office at the time of the assassination attempt.  Rockwell was eventually arrested and thrown in jail, awaiting indictment.

Rockwell spent about nine months in a filthy jail under deplorable conditions.  While in jail, he successfully escaped but was quickly recaptured.  Eventually, a grand jury was convened to determine whether there was enough evidence to charge him for the attempted murder of governor Boggs.  The grand jury determined there was not enough evidence and no charges were filed.

Rather than releasing Porter, the prosecutor charged him with escaping from jail.  Rockwell was convicted of escaping from jail (even though he was wrongfully held, it was still a crime to escape).  Realizing that Porter had already spent a significant time in jail for charges that were never filed, the jury sentenced him to an additional five minutes in jail.  The prosecution was not happy.  The court and prosecutor held him for an additional five hours trying to come up with additional charges.  When they couldn’t find any new charges, they released him and he immediately fled to Illinois.

Jury verdicts of this type were not uncommon before the civil war.  England also struggled with this issue.  When the English parliament made writing a bad check a capital offense, juries refused to convict people for writing bad checks and refused to sentence them to death.

Because the prosecutors and courts felt that juries were often too sympathetic or too harsh in meting out punishments, the courts and legislatures abolished that right.  Presently, juries are rarely allowed to determine the sentence following a criminal conviction.   In Utah, juries are only allowed input on the sentence in death penalty cases.  In fact, the courts have taken it one step further.  Not only are juries now prevented from having input regarding an appropriate punishment, the lawyers are forbidden to even mention to the jury that any punishment will be given and how much that punishment might be.

Trial by jury is not nearly as significant a right as it was prior to the civil war.

More recently, trial by jury has been under a new attack.  The United States and Utah constitutions not only guarantee trial by jury in criminal cases but also in civil cases.  Many believe that juries make bad decisions in civil cases.  They are now pressing legislatures to curtail the right to trial by jury in civil cases.

For example, this last session, the Utah legislature passed a “tort reform” measure that limited the amount of general damages that a Utah jury can award in medical malpractice cases.   In other words, even if a jury believes that more money should be paid, the jury is not allowed to make that determination.  The legislature applied the cap across all cases.

I find it ironic that those who bellow the loudest during the Fourth of July holiday about the fabulous gift our founding fathers gave us by including the right to trial by jury, are frequently the same people who support bills in the legislature to further curtail the right to trial by jury.

I personally believe in the right to trial by jury.   Sometimes it is scary to put your fate in the hands of eight or twelve peers.  In my experience as an attorney, having tried numerous cases to a jury, juries almost always come to the right result.  Eight common citizens putting their minds to a task is a powerful tool.  I hope that the members of our legislature live up to their rhetoric and support trial by jury.

Ronnie Lee Gardner lost another appeal today.  In a unanimous opinion, the Utah Supreme Court rejected Mr. Gardner’s latest appeal.  The Court emphasized that Mr. Gardner has been treated fairly by the courts.

Mr. Gardner was convicted for the 1985 murder of Michael Burdell.  Mr. Burdell was an attorney doing research at the Salt Lake City Municipal Courthouse when Mr. Gardner was brought to the jail in shackles.  Mr. Gardner’s girl fiiend slipped a gun to Mr. Gardner.  Mr. Gardner and his guards then shot it out.  Mr. Gardner was shot in the chest and the guards retreated to the parking lot.

Mr. Gardner then made his way into the archives room of the courthouse where Mr. Burdell was doing research.  Mr. Gardner held a gun to Mr. Burdell’s head, paused for a moment, and then pulled the trigger.  Mr. Burdell was shot just above the eye and was killed instantly.

Mr. Gardner then took a hostage and made his way outside the building.  Upon exiting the building, the hostage escaped.  Mr. Gardner, surrounded by police, surrendered.

Mr. Gardner was convicted of the murder.  During sentencing, the jury considered Mr. Gardner’s past conduct.  Some of the things the jury heard were:

In 1981 Mr. Gardner escaped from jail.  While on the run he stabbed and beat a man without provocation.  When the police caught up with him he had a shoutout with the police before being captured.  While being arrested, Mr. Gardner told the officer that he knew the officer’s family and would arrange to have them killed.

In 1981 he attempted but failed to escape again from Prison.

In 1984 he attacked a prison guard with a screwdriver, attempted to headbutt another guard and kicked three guards.

In 1984 he spit in a prison guard’s face, threw his television and told the prison guard that he would arrange to kill the guard’s family.

In 1984, while on a hospital visit, Mr. Gardner attacked a prison guard.  Mr. Gardner broke a guard’s nose in sixteen places, fractured the guard’s eye socket and caused four ruptured disks in the guards spine.  Mr. Gardner took the guard’s gun, held it to the guard’s head and forced the guard to give him the keys to remove his shackles.  Mr. Gardner then hijacked at gunpoint a medical student riding a motorcycle.  Mr. Gardner forced the medical student to take him into a building, Mr. Gardner then took the student’s wallet and clothes, hit the student in the head with the gun and then kicked the studen while he lay on the ground.

In 1984, Mr. Gardner murdered Mel Otterstrom while Mr. Gardner while robbing a bar.

In 1985, Mr. Gardner kneed a prison guard in the groin.

The jury sentenced Mr. Gardner to death.  For the past 25 years, Mr. Gardner has been appealing his death sentence in State and Federal Courts.  The appeal that was denied today was his sixth appeal to the Utah Supreme Court.

Mr. Gardner was given the option of lethal injection or firing squad.  He chose the firing squad.

Mr. Gardner has a hearing scheduled this evening in Federal Court.  He will ask the Federal Court Judge to stay his execution.  His execution is scheduled for June 18.

Recent news stories have reported that “Take Your Child to Work Day” is being criticized by some educators and appears to be losing steam.

The Maryland law firm, Shulman Rogers Gandal Pordy & Ecker,  figured out a way to make it fun and educational at the same time.  The law firm read the story of Little Red Riding Hood to the children and then held a mock trial on the issue of whether the wolf was guilty of murder.  It took the jury less than a minute to find the wolf guilty.  Any prosecutor will agree that a guilty verdict in less than one minute is pretty remarkable.  Here is a link to the original story.

The Utah Supreme Court opinion Peak Alarm v. Salt Lake City shows that Salt Lake City is wasting tax money in frivolous criminal prosecutions.  On June 27, 2003, Peak Alaram received an alarm and then a call from employees at West High School requesting that Peak Alarm send the police because there were intruders in the school.  When Peak Alarm called the police, the police refused to respond.

Salt Lake City had passed an ordinance requiring that all burglar alarms be “verified” before police would respond.  Jerry Howe, a supervisor at Peak Alarm, spoke with police dispatch and asured them that the alarm had been verified.  In the conversation, Mr. Howe claimed that a Peak Alarm employee had verified the alarm.  He was wrong.  The alaram had been verified by school employees.

The police responded and found two girls had broken into the school.

The strange thing about this case is what happened next.  Instead of thanking Peak Alarm and the school employees for tipping the police off to a crime in progress, Salt Lake City filed criminal charges against Jerry Howe.  They claimed that he made a false alaram when he said the alarm was verified by a Peak Alarm employee when in fact the alarm had been verified by a school employee.  Fortunately, the criminal court judge threw the case out.

A criminal prosecutation is expensive for both the city and the person charged with a crime.  By prosecuting this case, Salt Lake City showed terrible judgment and wasted taxpayer money.

The Daily Herald reported that Michael Scott Hall, age 19 from American Fork, has been charged with woyeurism.  He is accused of hiding a camera in a women’s restroom at his place of work.  He used the camera to take pictures of women using the restroom.

Utah criminal laws make such actions a crime.  If convicted, Michael Scott Hall could face jail time and fines.  Utah law also gives victims of such crimes the right to be compensated with money.  Utah has long recognized the civil claim of invasion of privacy.  When an individual “intrudes upon the seclusion” of another, that individual may be required by a court to pay money to the victim.

The Utah Supreme Court upheld the conviction of a Utah County man for possession of a controlled substance found during a routine traffic stop. While the Supreme Court said that the police “violated Mr. Gettling’s Fourth Amendment rights by detaining him after concluding the lawful purpose of a traffic stop,” the Supreme Court upheld the conviction anyway because they found the police officer acted in good faith.

In January 2006, Mr. Gettling was a passenger in the rear seat of an automobile being driven in Utah County that was pulled over for improper lane change and failure to come to a complete stop at a stop sign. The police officer noticed that Mr. Gettling was fidgeting in the back seat. The police officer detained Gettling while a K-9 unit searched the vehicle. The narcotics detection dog indicated the presence of narcotics, and a search of the vehicle found narcotics in Gettlings personal belongings.

The Supreme Court held that the police officer violated Gettling’s rights because the Fourth Amendment allowed the police officer to detain Gettling only long enough to effectuate the purpose of the stop. The Supreme Court said, “We determine that the purpose of the stop concluded after the arrest of the driver. Thereafter, Deputy Radmall had no continued justification to detain the passengers.”

Nevertheless, the Supreme Court decided that the police officer had acted in good faith because at the time of the arrest the search was legal. In 2009 the law changed when the U. S. Supreme Court held that this type of search was unconstitutional. Because the police officer acted in good faith at the time of arrest, the conviction was upheld.