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Thursday, April 29, 2004

Column: The Jury is Out

As I write this, Jayson Williams is seeking a mistrial in his criminal case on the ground that lawyers lied to the jury; Martha Stewart says there should be mistrial of her case because one of the jurors lied to the lawyers; and the trial of two former Tyco executives has just ended in mistrial because the jurors couldn’t get along.

Trading One Ordeal For Another

Trial by jury is an ordeal, but ironically, that’s exactly what it was supposed to replace. For centuries, guilt and innocence were determined by the “ordeal,” such as the ordeal by water – if she floats, she’s a witch! Another popular method was ordeal by fire, in which the accused had to walk nine paces with a red-hot iron in both hands – this is thought to be the origin of the phrase “the whole nine yards.”

The Fourth Lateran Council of 1215 spoiled all the fun by effectively banning trial by ordeal. Suddenly, authorities all over Europe had to find an equally scientific way to determine innocence and guilt – a tall order at a time when bloodletting represented cutting-edge medicine. In England, they hit upon the novel idea of canvassing the opinions of twelve local men.

The word jury emerged in the Anglo-Norman dialect of that period, coming from the Old French word juree, and ultimately, from the Latin jurare, meaning “to swear.” Jurare, by the way, is also the root of jurat, the word you sometimes see at the end of an affidavit, or sworn statement.

Why is a juror sworn? Originally, because jurors were also witnesses who were required to testify from personal knowledge if they had it, or, more likely, to simply repeat neighborhood gossip. It wasn’t until the 16th Century that compulsory process was available to compel the testimony of witnesses at trial using the subpoena (Latin for “under penalty”); which finally allowed jurors to sit back and listen to other people talk. And talk, and talk.

Although jurors no longer testify, they still must take an oath in order to be properly impaneled (from the English “panel,” deriving from the Latin pannus, or piece of cloth). In the Martha Stewart case, the defense team is arguing that one of the jurors, Chappell Hartridge, lied in order to get on the jury – which is, of course, a big no-no for oath-takers.

Stewart’s lawyers argue that Mr. Hartridge concealed his criminal record, namely, an assault charge filed by his ex-girlfriend, Gail Outlaw. Confusingly enough, Ms. Outlaw is not herself an outlaw, although she charges that Mr. Hartridge is. In any event, Stewart’s lawyers argue that Hartridge fibbed his way on to the jury because he was eager to convict Stewart because she is rich, or a woman, or both.

The notion that jurors are often tainted by pre-existing biases is not a new one. In their 1875 operetta “Trial By Jury,” Gilbert and Sullivan lampooned the prejudices of juries. In one scene – before the trial has even begun – the entire jury shakes its fists at the defendant and sings in unison:

Monster, dread our damages.
We’re the jury!
Dread our fury!

In fact, such common spirit among jurors seems to be increasingly rare, in this country at least. According to statistics, a “hung jury” happens about 8,000 times a year in the U.S. Make that 8,001 with the Tyco trial.

Hung Juries and Hanging Judges

A hung jury is one that cannot arrive at a verdict after a reasonable period of deliberation. In the Tyco trial, the majority of jurors were reportedly set to convict former executives Dennis Koslowski and Mark Swartz of grand larceny. But one juror (Juror No. 4 , to be exact) held out for the defense.

New York Judge Michael Obus sternly directed the jury to keep deliberating. But after eleven days of deadlock, and reports of overt threats against Juror No. 4, a 79 year-old grandmother, Judge Obus finally decided to declare a mistrial, thus forcing prosecutors to start their six-month case against the defendants all over again.

A hung jury has nothing to do with a hanging judge. In fact, it’s quite the reverse, since a hung jury can’t make up its mind, while a hanging judge is thought to be a little too eager to make up his. Still, the word “hung” has lead to some bogus etymologies. One legal humorist, for example, has suggested that the hung jury was born in the Old West – where jurors who were taken in by shyster lawyers would be hanged in punishment.

The phrase does not, in fact, come from the Old West. But it is American in origin. The Oxford English Dictionary lists the first printed reference to a hung jury in Edwin Bryant’s What I Saw in California (1848-49) in which he states: “The jury . . . were what is called ‘hung’; they could not agree . . .”

Bryant’s phrasing obviously suggests that the phrase was already in common use by the late 1840’s. Indeed, there are earlier case reports with references to hung jury and variations thereof. The earliest use of the term in a law report appears in an 1821 case, Evans v. McKinsey. That case, and virtually all of the early cases referring to hung juries is from the south. So it appears that the term developed somewhere in the south during the early 19th Century.

Linguistically, the phrase seems to derive from the sense of “hung” to mean caught, suspended or delayed (“I got hung up at the office”). Oddly, although the phrase is American, we have not extended the metaphor to describe other deadlocked bodies, say, a “hung Congress.” In Britain, however, commentators have used the term hung parliament to describe the situation when the House of Commons is unable to elect a Prime Minister.

It Only Takes One

The Tyco trial is an example of why juries are so often hung. When unanimity is required – as is still the case in most jurisdictions – it only takes one “angry man” (or angry grandmother) to cause a mistrial.

The need for unanimity has been cheered as a pillar of liberty and decried as an obstruction of justice. Whatever the merits of that debate, the fact is that unanimity was not part of the original plan. Early medieval juries in England did not require unanimity – a few loud shouts of “she turned me into a newt” would suffice for a conviction.

The first recorded case where unanimity was required was in 1367, when an English court refused to accept a majority verdict of guilty. By the end of the fourteenth century, the trend towards unanimity was unstoppable. With that development no doubt came the phenomenon of deadlocked juries. A quick four centuries later, an anonymous Southern American finally came up with a name for this phenomenon: the hung jury.

Renegade Juries

A judge can nullify a jury’s verdict by declaring a mistrial, but that has nothing to do with the term jury nullification. Jury nullification happens when a jury returns a verdict of not guilty, despite their belief that the defendant committed the offense charged. The jury “nullifies” the law on which the prosecutors rely.

In America, nullification goes back to a 1735 New York case in which the colonial governor, William Crosby, brought an action against a printer, John Peter Zenger, for publishing “seditious libels” in the New York Weekly Journal. Although Zenger had clearly printed the alleged libels, the jury voted to acquit, thus nullifying the harsh sedition law of the time.

And finally, let me clear up one confusion. The term jury-rigged, meaning assembled in a makeshift manner, has nothing to do with the legal sense of the word jury. It is an 18th Century nautical term, deriving from the Latin adjutare (to aid), from which we also get the word “adjutant.” Of course, I cannot deny that shady lawyers do occasionally try to “rig” a jury with bribes. But that brings us back to where we began, with mistrials.

(This column originally appeared in the June 2004 issue of New York Law Journal Magazine).

Column: Beam Me Up, Counselor

On January 15, 2004, President Bush unveiled his “New Space Exploration Vision.” Under the President’s plan, American astronauts could be planting the flag on the Moon by 2015, and on Mars after that.

All I can say is: they’d better bring lawyers with them.

For starters, the astronauts could be slapped with a trespassing suit by a Nevada businessman who claims to have valid title to both the Moon and Mars. Welcome to the world of Space Law.

Space Law: The Final Frontier

Space law deals with human activities in outer space. Most issues in space law come under the jurisdiction of the United Nations. The rest, of course, is controlled by the Klingon Empire. Actually, the rest of space law is a hodgepodge of bilateral agreements, national law, and certain “norms” of questionable weight.

Space law presents a great opportunity to the legal linguist because, as a relatively new field, the meanings of some of its key terms are still being worked out. Take space, for example. Clearly, at some point up there, the earth ends and space begins. But where? Experts disagree. Is it where the earth’s atmosphere peters out, somewhere around 80 km up? Or is it the lowest point where a craft can achieve orbit, about 100 km up, or is it – well, you get the picture.

So far, this lack of a definition has not caused any practical problems. But that may just be dumb luck, because defining the boundary of “space” has real implications for tort law. There is a completely different liability regime for accidents caused by aircraft versus those caused by spacecraft (which go by the dreary name of space objects in space law). For the latter, there is – I’m not making this up – the International Convention on Liability for Damage Caused by Space Objects.

Under the Liability Convention, if a space object collides with an aircraft, the country that launched the space object faces absolute liability, but if a space object collides with another space object, it’s fault liability. Thus, in the event of a mid-space collision, astronauts are advised to exchange insurance information and just continue on their way.

Sovereignty is a big problem in space. A country remains sovereign over its adjacent airspace – but how far up does that airspace go? In the 1976 Bogotá Declaration, a number of developing countries asserted that their national territory extends all the way up to geostationary orbit, or about 40,000 km straight up. This is the orbit where a satellite always stays over the same spot on earth. It is a particularly valuable bit of real estate because that’s where communications satellites need to be.

Imagine – if countries owned their orbital space, then they could very well charge you enormous fees for the privilege of having your communication satellite hovering over their territory. Those cell phone calls would suddenly become a lot more expensive.

Property Rights in Space

But the Bogotá Declaration never went anywhere, because it was universally decried as a violation of the Outer Space Treaty of 1967.

The Outer Space Treaty, which has been ratified by 98 countries, including the US, is often called the Magna Carta of space law. The treaty prohibits any state from claiming sovereignty over any part of Outer Space, including the Moon and “other celestial bodies.”

Lest you be confused, celestial bodies is not a bit of cheesy copy from the latest Sports Illustrated swimsuit issue, but rather a recognized legal term. Alas, this is another phrase that has confounded space lawyers because it is not defined in any treaty or convention. Under the Outer Space Treaty, most lawyers interpret celestial bodies to mean all planets, natural satellites of planets, and to asteroids anywhere in the universe.

Some scholars, however, urge that the definition of celestial bodies ought to exclude any planet that is inhabited by intelligent beings. Assuming that there are intelligent aliens, the argument goes, it would be rude to foist the 1967 treaty on them.

More recently, overworked UN lawyers have limited the meaning of celestial bodies to those bodies found within our solar system – other systems would be covered later (one thing at a time, please!). The big losers in all this lawmaking, by the way, are comets and meteoroids, which don’t count as celestial bodies under anybody’s definition.

Martian Mortgages

Although the Outer Space Treaty prohibits nations from owning any celestial body, it doesn’t say anything about individuals or corporations.

That omission has created, well, a vacuum, into which a number of individuals have leapt. The most enterprising of these is Dennis Hope who in 1980 filed papers with the U.S. government and the United Nations laying claim to the Moon and all the planets of the solar system except Earth. His Nevada-based company, Lunar Embassy, has been selling off bits of the solar system to, er, optimistic, investors ever since.

Hope has a number of rivals in the celestial property game, including Martin Juergens, a German pensioner who claims that the moon has belonged to his family ever since Frederick the Great of Prussia granted it to one of his ancestors in 1756.

In an effort to forestall such entrepreneurial activities, the UN Committee on the Peaceful Uses of Outer Space came up with the so-called Moon Treaty of 1979, which prohibits governments and private parties from gaining property rights in the surface or subsurface resources of the Moon and the other celestial bodies.

The rationale of the Moon Treaty, borrowed from the Law of Sea Treaty, is that the Moon and planets are the “common heritage of mankind,” and thus cannot be claimed as private property.

Most of the developed countries felt that the Moon Treaty went a tad too far. After all, if you take the trouble of actually going to Mars, shouldn’t you at least be able to buy a souvenir rock? More seriously, perhaps, a number of space scientists see the potential for lucrative mining operations on various planets and asteroids, and that’s a hard thing for any politician to sign away. Only ten countries have ratified the Moon Treaty, and not one of those has a serious space program.

Resolving disputes

Next to cosmic radiation, litigation is one of great hazards of space travel. Consider the International Space Station in which astronauts spend up to six months in submarine-like conditions. That place is a tort, or even a crime, just waiting to happen (“Hey that’s my bottle of Tang!”)

In the event of a dispute, lawyers would probably apply the law of the flag from maritime law; that is, the flag of the vessel governs torts and crimes committed on the high seas. But the Space Station does not have one flag; rather, it is composed of “modules” from different countries.

So, if an American astronaut and a Russian cosmonaut get into a fight while in a European Union module, then EU law would govern. Since the EU doesn’t have criminal or tort law, one would have to decide which of the EU’s 25 member states (as of 2004) should supply the governing law. Nothing simpler, really.

And then there are those rovers – Spirit and Opportunity – scurrying about the surface of Mars. What if they had a fender bender? There is no Liability Convention to govern accidents on another planet. Those rovers would have to be subject to local law.

The only problem, of course, is that there is no Martian law. As far as we know.

(This column originally appeared in the April 2004 issue of New York Law Journal Magazine).