Thoughts on juries and justice

By Legal Eagle

The other day, I was supposed to be doing PhD thesis when I got caught watching the documentary called The Times of Harvey Milk, which featured real archival footage of the various people involved. Once I’d started watching, I couldn’t stop. Of course, Sean Penn has just received an Oscar for his portrayal of Harvey Milk in the recently released film Milk. [Note: spoilers below]

Milk was the first openly gay politician elected to office in the USA. He had become a gay activist relatively late in life. After a few attempts at running for the position of Supervisor in San Fransisco, he succeeded after Mayor Moscone allowed individual districts to vote for candidates to represent them directly.

The new system of voting led to the election of a number of unorthodox Supervisors, among them a conservative fireman called Dan White. Apparently, White and Milk initially got along well, despite their political differences, but then had a falling out when Milk voted for a mental health facility to be located in White’s district (against White’s wishes). White started being increasingly critical of Milk.

In the meantime, various politicians were attempting to cash in on anti-gay sentiment, and Senator John Briggs put forth Proposition 6, which would have made it legal to fire school teachers who were homosexual on the basis that they posed a danger to children. Initially, public opinion was in favour of Proposition 6, but Milk and his friends instituted a grass-roots campaign where they went and talked to voters. The Proposition was rejected. Incidentally, I was fascinated to see that Ronald Reagan went on the public record as saying that Proposition 6 should be rejected, but Jimmy Carter was reluctant even to be photographed with Milk, and Carter’s sister offered to “cure” Milk of his homosexuality.

By this time, Dan White had become depressed and dispirited with politics, and in what appeared to be a fit of pique, he resigned from his position. His supporters and constituents were very disappointed, and he then asked to be reinstated. However, Moscone received legal advice which suggested that there was no requirement that White be reinstated, and the final choice was down to him as Mayor. Milk lobbied for White not to be reinstated.

The newspapers were full of the Dan White reinstatement drama, and then the Jonestown massacre in Guyana occurred. Most of the 900+ people who died had been San Fransiscans, and the papers were full of the horror of it. White was apparently unhappy that his attempt to get reinstated had fallen off the press radar. He also learned that Moscone was unlikely to reinstate him as Supervisor.

On 27 November 1977, White crept into the San Fransisco City Hall via the back window. He was carrying a gun and extra bullets. He went up to the Mayor’s office and assassinated Moscone. He then walked to the other end of the building and assassinated Milk. He was arrested and charged with two counts of murder.

When White came to trial, the jury consisted of white, heterosexual San Fransiscans who were primarily Catholic (as was White). There were no ethnic minorities and or homosexual people on the jury (it is worth noting that Milk had been popular with minorities for his passionate defence of their rights). White’s counsel used what became known as the “Twinkies defence”: White had binged on junk food in the days before the murder, and this unaccustomed consumption of junk food affected his mental deterioration. White was acquitted of murder and found guilty of two counts of voluntary murder. The verdict created outrage, and riots ensued in San Fransisco. White ended up serving 5 years for the killings. However, he committed suicide a little over a year after he was released.

It was a tragic and compelling story. I cried at various points. Such a waste of lives.

After the documentary, I was thinking about the importance of criminal trials in establishing a sense of vindication — that is to say, a sense that a person has received the punishment he or she deserves. There were riots after White’s sentence because many people felt that he got off far more lightly than a person of a minority group would have done. Apparently the police were strongly biased towards White, and the prosecution did not raise a number of critical issues which might have changed the jury’s mind about whether the murders were premeditated  (eg, the pre-existing tension between White and Milk). Such cases inevitably bring the justice system into disrepute.

I couldn’t help thinking, too, of parallels between White’s trial and OJ Simpson’s trial and subsequent acquittal for the murders of Nicole Simpson and Ron Goldman. There was a similar miscalculation by the prosecution, coupled with a jury which was predominately of the same ethnic background as the accused. After the trial, there were allegations that Simpson had gotten away with murder because the jury was biased.  Plus ça change, plus c’est la même chose. I suppose it’s just human nature: perhaps it’s easier for people to identify strongly with others who are like them (whether victim or accused). And, in the case of the African American population, there is a long history of negative interaction with the justice enforcement system, which means that the justice system had to work doubly hard to persuade them that one of their own did wrong.

On the upside, the documentary made me think that many positive things had occurred since Milk’s death. We now have politicians who are openly gay or lesbian; it is no longer a cause for comment in most circles. The likelihood of gay and lesbian people being sacked from their workplaces because of their sexuality is less than in the past, and at least these days there are legal recourses available if people have been discriminated against. Same-sex relationships are edging towards equality with heterosexual relationships before the law (slowly, but surely). I think and hope Harvey Milk would be pleased.


  1. Posted February 27, 2009 at 9:39 pm | Permalink

    Here’s my theory: judges decide, but the questions of fact are distilled and decided in the yes/no manner of current jury questions.

    Currently maggies do this. I’d extend to Lower level indictables – 2 judges, most serious – 3 judges. Of course you need all 3 to make the guilty finding, as per beyond all reasonable doubt.

    Jeez you guys have great capacity to post. Especially you LegalE, hope all’s under control on the home front!

  2. Posted February 27, 2009 at 9:40 pm | Permalink

    “Justice not only to be done, but seen to be done”

    Sometimes I think that the latter is even more difficult than the former, because any losing party is going to be particularly aggrieved. When I watched that documentary, I cried too at the utter waste of it all – I’m waiting for the movie to come out on DVD so I can cry in the privacy of my own home, so I don’t have to risk having mascara run down my face in the cinema.

  3. conrad
    Posted February 28, 2009 at 4:26 am | Permalink

    It would be interesting to know how old Ronnie’s son was when he rejected proposition 6 — I believe his son is gay so perhaps that influenced his decision (or perhaps that’s just what he thought even before that).
    Off topic, it’s good to see that PhD has now become a proper noun, not just a common one :).

  4. Posted February 28, 2009 at 7:32 am | Permalink

    Currently the law abiding masses have an impression, formed by osmosis from watching american courtroom dramas on TV, in which all facts are allowed to be presented, are considered by a sage on the bench & 12 pillars of society in a jury box.

    God help the judicial class (& probably the political class) if the law abiding public, as one, realise just how the law really works.

    They’d be marching on the streets carrying flaming torches, accompanied by baying hounds.

  5. Posey
    Posted February 28, 2009 at 10:39 am | Permalink

    It’s a great doco, LE. I haven’t seen ‘Milk’ yet.

    The parallels between the first O.J Simpson trial and that of Dan White are striking particularly w/r/t to the role the composition of the jury played in the verdicts.

    The jury in the White trial was heterosexist, mostly female, middleaged and Catholic. Some say it was even more conservative than it might otherwise have been (given the significant leftist, socially progressive demographics of San Francisco then) because the jury selection successfully weeded out liberals and non-conformists, (e.g. questions aimed at ascertaining jurors’ support for capital punishment and sexual preference). Harvey Milk was from Long Island, a middle class Jewish liberal homosexual and San Franciscan blow-in. Dan White was a SF native, an Irish Catholic conservative married working class battler who’d been a Vietnam vet, cop and firefighter.

    It’s been said that the location of the Simpson trial, Black & Hispanic dominated southern Los Angeles, rather than where the crime took place (white-dominated Santa Monica), was the prosecution’s biggest mistake. The jury was mainly Black and Hispanic. The Simpson defence played the race card for all it was worth, and the prosecution, as I understand it, avoided the issue or at least didn’t successfully counter or challenge it.

    White’s defence team played two cards: his recent depression and psychologically out-of-character behaviour, and his solid, hardworking, conventional background. The prosecution failed to make anything of the social and political context of the assassinations and the conflict between the in many way representative individuals involved.

  6. Posey
    Posted February 28, 2009 at 12:02 pm | Permalink

    Yes but the Simpson defence successfully portrayed him as a male from a poor background who still suffered from that legacy of deprivation and class and racial stigma. In a contest with a middle class female ( to crudely frame it) even with evidence of his longstanding physical and verbal abuse of Nicole Simpson – in the end, race, gender and class (black, male, and working class) trumped white female, middle class. And this was borne out by the fact that group loyalty or affiliation seemed to play a major role in the jury’s verdict.

    It’s interesting too in this context the overwhelming, virtually uncritical support Simpson got from African American women, and the way his sporting prowess, which necessarily incorporated physical aggression that then spilled over into his private life, was excused or given a free pass for that too because of the high value attached to successful sports figures by African Americans.

  7. Posey
    Posted March 1, 2009 at 4:37 am | Permalink

    The OJ Simpson trial pressed a lot of buttons for the African American community given the multiple historic resonances in US race relations of accusations of Black male violence towards white women. Within the African American community itself male violence towards Black women has long been hidden or downplayed, in much the same way it has been in some Aboriginal communities until recently. There was a huge backlash within the AA community in the US following the success of Alice Walker’s Pulitzer Prize winning novel “The Color Purple” one of whose major themes was Black male violence towards Black women. Walker was decried from all quarters in her own community, including by long established successful Black male writers, for breaking solidarity and portraying men in a bad light. There can be no doubt she was depicting a widespread real-life phenomenon. In second-wave feminism, there was always an “edge” between Black and white women because of the primary identification of many Black feminists with their racial rather than sexual oppression much of course which is experienced through and in their relationships with Black men.

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