There was a joke floating around somewhere (Matt Levine I think?) that one strategy to avoid a jury trial proceeding was to become so publicly infamous that it would be impossible to select an unbiased jury. Clearly didn't work out for Shkreli in this case.

Well, that and he actually was guilty. Just like being nice shouldn't be enough to get you off the hook when you're guilty being an asshole shouldn't be enough to get you to be declared guilty when you're not. In this case the system simply worked as it was designed to.

Nah that's stupid. It might delay your trial but do you really think they would just say "oh ok we won't bother"? Of course not - they'd just go ahead with the least biased jury they could find.

Probably why it's a joke.

It may take a very long time to find an impartial jury if the Trump impeachment goes to trial.

Impeachments are tried by the Senate. We know where to find them, whether they're impartial or not.

You mean, if criminal charges against Trump go to trial, which is far less likely than impeachment (which is tried by the Senate and has no requirement for impartiality) going to trial.

It almost did, I believe it took something like over 200 potential jurors before they found a unbiased jury.

Well, arguably they didn't find an unbiased jury. They just found enough jurors who'd deny being biased.

Yes, matt levine. Curious what his thoughts are on this case on Monday.

Matt Levine is an excellent read. Even for those without a finance background he makes it easy to understand. Would make an exceptional professor.

The issue with this is that I often think of a people, that are not following media (so would not know him at all), to be usually more on a conservative note with strong values. If such a people would meet Shkreli, they would send him straight to the jail.

In a jury trial that would absolutely sway things

Which, all things considering, is ridiculous. People shouldn't be able to be convicted because they're assholes (even if they are).

I don't live in the US, but being convicted by a "jury of your peers" is frankly, ridiculous. When has the average person been able to grasp complex matters relating to say, securities fraud? Most people aren't even able to stay out of debt.

A panel of judges with specialised experience often makes a lot more sense than a jury.

Edit: and for those voting me down, at least explain why you don't agree.

Relying exclusively on bench trials seems unappealing to me (and I guess to James Madison, who enshrined the right of trial by jury in the Constitution) because it creates a much easier environment for an arbitrary court system to throw people in jail who are innocent and removes other protections like jury nullification. You could look at Japan, which tried to solve its problem of innocent people going to jail by introducing a lay-judge system (kind of like jurors who can ask questions during the trial), for a real-life example of some of the problems you might have.

Clearly the US system is far from perfect but I don't think getting rid of juries would make it better.

Also, in practice, judges make rulings on things outside their expertise too.

"because it creates a much easier environment for an arbitrary court system to throw people in jail who are innocent and removes other protections like jury nullification. You could look at Japan, which tried to solve its problem of innocent people going to jail by introducing a lay-judge system (kind of like jurors who can ask questions during the trial), for a real-life example of some of the problems you might have."

Practically, united states of america have biggest incarceration rate in the world, one of the most expensive legal systems (if not most expensive) and quite long sentences compared to other western countries. Jury nullification is basically never used and majority of jury members don't know about it.

I am not saying that other countries have flawless awesome court system, definitely not. But I have yet to read something that would convince me that jury is better or at least worth additional expenses.

You're right the US has a huge incarceration rate, but jury trials have nothing to do with this, since in the US trials functionally do not exist. I don't remember the numbers exactly (and they are changing and they differ by state/federal) but something like 1-5% of people thrown in jail actually go to trial.

But wouldn't the fact that trials might be favoring conviction (I'm not saying they do, but just as a hypothesis) also drastically change the outcome of those non-trial cases (mainly plea bargains, I guess)? If I expect to be convicted, I'm more likely to agree to a worse plea bargain.

I've not seen any reason to believe juries are more likely to convict.

That might be true but it was not my point. I was merely arguing that not seeing many cases actually go to trial is not an argument that can be made in this case.

Juries convict, but judges sentence. The incarceration rate is high because of strict sentencing guidelines written in the law and voters electing tough-on-crime judges. Eliminating jury trials would change none of that.

and Legislatures legislate. The strict sentencing guidelines are the result of "Law and Order" laws (both sides of American politics have their favorite targets). I too agree, eliminating jury trials would change none of that.

But making judges appointed rather than elected positions might.

Federal judges, such as the one who will sentence Shkreli, are not elected.

And you think getting rid of juries would help, or at least not make things worse? One of the reasons it's so high is that most cases are resolved as part of the plea system and never go to trial.

Isn't the main issue with a jury that is inherently unpredictable, and some people would prefer taking a decent plea over a bad verdict? People that aren't guilty shouldn't be forced to take a plea because the alternative could be worse. That is just wrong in every single way.

I agree that the use of plea bargains in the system today is deeply troubling. But getting rid of juries doesn't help. You still have a situation where the prosecutor can tell you your choices are going to jail for two years or taking your chances in court and maybe going away for decades, and you still have the inadequacies of the public defender system. The jury system is one of the parts of the system least in need of reform.

Which happens because of power prosecutors have (ability to decide charge which makes all the difference - plea can make difference between a year and risk of 30 years in prison) which has little to do with jury vs judge. Majority of defendants deciding that they don't want to risk (or cant afford) a day in court is not an argument for that system.

It is a refutation of the argument that juries are bad because the US has a lot of people in jail, though.

His argument was that juries prevent "arbitrary court system to throw people in jail who are innocent and removes other protections like jury nullification". There is nothing observable that would confirm that.

They don't do that, they prevent pretty much nothing.

It says nothing one way or the other because the system isn't being used in those cases.

Put simply, if you want to make claims about whether jury trials or bench trials put more people in jail wrongfully by citing US incarceration data you have to somehow contend with the fact that the vast majority of cases don't go to a trial of any kind. Or at least have an argument as to why switching to bench trials would change that circumstance.

The rate in not because of juries (most cases end up in guilty pleas anyway). It is 90% war on drugs and 10% "tough on crime" mentality which emphasizes punitive aspects and produces thing like mandatory minimal sentences which do not allow to treat things on by case basis. But mostly it's war on drugs.

I think at the very least there should be some kind of juror training process. You'd still tap people from the general public, but these people could maybe serve up to 5 year terms where being a juror is their full time job for that time period, they're trained in advance, they go through some kind of testing period, maybe shadow a couple other juries, and then they go on to serve on real juries. Obviously this would be a paid position much like a postal employee.

Besides being extremely disruptive to jurors' lives, you also have many of the same problems of an all-judge system (people becoming too close to prosecutors and wanting to the rule the "right" way, etc.) without the mitigation provided by the bar and full legal training.

Seemingly free and "just" governments have done much more "disruptive" things in the past, so there is precedent. E.g. Conscription and mandatory military training.

Edit: Typo.

So what? Does that make it a good idea?

I'm a Libertarian, so I'd say No. But my point was that government has in the past done things that have been highly disruptive to their citizens' time.

> People shouldn't be able to be convicted because they're assholes (even if they are).

He wasn't convicted because he was an asshole. He was convicted because he broke the law. I think the fact that he was acquitted on 2 of the 5 counts is evidence that the jury made a determination based on facts, rather than their feeling towards him.

That being said, in a trial in the US, the judge applies the law, and the jury determines the facts, especially as they pertain to the credibility of testimony. If the defendant is an outrageous asshole, it's possibly more likely that the jury would interpret inconclusive evidence less favorably. I don't think that's necessarily the worst thing in the world, and it's also not clear that a panel of judges wouldn't be subject to similar biases.

>He wasn't convicted because he was an asshole. He was convicted because he broke the law.

Well, yes and no. They only bothered looking for his other crimes and prosecuting his because he became unpopular. That's disturbing.

What if I'm the victim of financial crimes by someone who didn't piss of Congress and the public? Where's my justice?

Well, maybe.

Shkreli was first investigated by the SEC in 2003, and had two multimillion dollar judgements against his two bankrupt hedge funds for failing to cover puts and short sales.

So when he shows up running a new company, it's not unimaginable that he was on some people's radar.

The solution to your problems is not found in questioning why one set of crimes which occurred was correctly prosecuted.

The judicial system mostly prosecutes people who have not managed to piss off Congress and the public.

The point is that the bad reasons disproportionately affect their decision of which cases to pursue.

It's a check/balance against state power, i.e. the judicial system. Many countries have used this method for centuries. It's not ridiculous because the idea is that (the diverse selection of) your peers are equal to you in most ways, so are able to fairly judge you. A judge still has a lot of power and usually ultimately the decision goes to them as far as sentencing etc.

Right. But thing is, they are not actually equal on specialised matters? I understand that it works when you're dealing with things like murder. That can be relatively clear.

But how about hacking? Securities fraud? Money laundering? Tax fraud? These are all highly specialised issues that the average person knows nothing about. No average person, unless they have an interest in it, will be able to make a good call on such a case.

There is a significant role for judges in trials as well, especially on complex technical issues. It's up to the judge to decide all "matters of law", for example which conduct would (if it happened) violate a law and which wouldn't. A judge can even throw out the indictment entirely, finding a defendant innocent as a matter of law, if they determine that the conduct alleged isn't actually a violation of any laws, even if it did happen. In complex fraud cases indictments being thrown out (or overturned on appeal) by judges isn't all that uncommon either.

Where it goes to a jury is when there's a dispute of fact rather than law: the judge has determined that whether the defendant violated the law or not depends on a fact disputed between the prosecution and the defense (e.g. whether the defendant actually did or didn't do something, or what the defendant's intent was). The jury then decides whether the facts support conviction, although even then they're typically guided by very specific instructions from the judge about what they would have to find in order to convict.

Just some clarification for those readers not in the U.S.. You as the defendant do not have to select have your case tried by a jury. You can select to have a bench trial instead. There is a presumption of innocence for the defendant, so the prosecutor has to show "beyond a reasonable doubt" that the defendant committed the crime in question. Juries find defendants not guilty more often then judges do. So if you want a society that better reflects the maxim, "better 10 guilty men go free, than 1 innocent man go to prison", then juries are empirically better.

http://aja.ncsc.dni.us/courtrv/cr43-2/CR43-2Bornstein.pdf

Even if you ask for a bench trial, the state can request a jury trial on your behalf since the presumption in law is that juries are objectively better.

These things can be (and are) explained. Trials that contain complex technical violations tend to take longer, sure. Judges, expert witnesses, lawyers all spend a huge amount of time learning about/explaining these issues. It's especially incumbent upon the prosecutor to explain complicated issues -- if the jury can't understand someone's guilt, they are less likely to consider someone guilty beyond a reasonable doubt. Which is very, very good: it sets the bar higher for conviction, and it encourages the state to, if it wants to convict, make simpler clearer laws. Complex morasses of incomprehensible laws are not necessary and only serve the interests of those who can pay to create or avoid them.

Also, none of these subjects are so difficult and complicated ordinary people cannot understand them. I've never heard of a trial requiring any real deep knowledge, like requiring jurors to have a serious understanding algebraic geometry or quantum mechanics or phenomenology. Hacking can be explained to ordinary people. People are not dumb. People do their own taxes and understand taxes. Trained professionals are not elite superheroes who are the only ones who can understand the world well enough to understand the difference between right and wrong. Untrained people can't do a professional's job, but they can definitely (with some help and background) tell when a professional has committed a crime. This case is easily understandable. I'm not a securities expert but I can make a fine assessment here just from reading an article, even without hours and hours of doing nothing but learning about the specific case and law (which is what jurors get); we all know what fraud is.

Honestly, aren't you underestimating your own intelligence?

Plenty of things can be simplified for non professionals, but the nuance of certain topics is then often lost. A single word in a written law can matter a lot.

No disrespect to anyone, but can an average career teacher understand the nuances of securities law? Can (s)he understand the actual difference between tax avoidance and tax evasion? Some can, absolutely. Others definitely can't and are operating way out of their league.

Lawyers and prosecutors are great at creating stories, but isn't what matters or not whether the law has been broken?

As an example; I had a tax issue (different interpretation of a certain law) but retained an amazing tax lawyer. He was _great_. The way they juggle the story around without lying, yet drawing the line very close, is amazing. Based on personal experience, I just don't think it can work without subject experts.

Amazing charismatic lawyers (or prosecutors) will be able to bend an outcome, and that is just not right.

>No disrespect to anyone, but can an average career teacher understand the nuances of securities law?

Yes they can, that's exactly the position I outlined. After a week of doing nothing but learning about securities law every teacher I've met is capable of this no problem. Teachers are perhaps a bad example here though, they are highly educated (many have masters' degrees, most have bachelors) and interested in learning. But to make your argument stronger, take a minimum wage fast food worker with a GED, yes I think they are capable as well.

>Lawyers and prosecutors are great at creating stories, but isn't what matters or not whether the law has been broken?

Kind of. In fact in the US legal system this is not all that matters, because the law is often vague and abstract and sometimes obviously morally wrong. The purpose of the jury is exactly this, it's a check on a cold soulless system destroying lives robotically; not only must a law be broken, but you also have to convince a group of fairly normal human beings that what you've done is horrible enough you deserve to be punished for it before you are punished.

>Amazing charismatic lawyers (or prosecutors) will be able to bend an outcome, and that is just not right.

I agree with you here, and this essentially means the rich get away with things the poor are punished for. This will always happen, will it not? People who are able to present a more convincing argument in their defense are less likely to be convicted in any legal system? I think things can be done to mitigate this, yes, and they start with a simpler criminal code (fewer crimes) and more equal access to legal talent, like better funded public defenders.

Yeah, but judges are no better at interpreting the law many times. If you don't believe me, go read some of the decisions by americas Supreme Court. For example they said a man was black therefore no a man therefor he had no right to sue in court, which basically means no rights at all. How they missed the part about due process I don't know.

Well, that's simple. They ruled he wasn't a citizen and therefore none of that applied to him. Monstrous but internally consistent.

The judge/jury distinction is basically orthogonal. Judges who hear a case are not necessarily experts. And by the same token, one could easily imagine a system where a jury had to be composed of experts in the field. I'm not convinced that would be a good thing to do, though.

You can always request a bench trial (which must be approved by the prosecutor), and you probably should for any sufficiently complex matter, where bench trials have a 55% acquittal rate vs 80-something % for jury trials (if someone wants a source, I'll try to find it; these figures came from a study). Jury trials work when there are emotional and subjective aspects, especially around intent. The jury in Shkreli returned to the judge for a formal definition of fraudulent intent, and then he was not convicted on wire fraud, meaning that they didn't find for specific intent. If the jury was not properly instructed on the elements of the crime and the issue was raised, it may be a reversible error and I'm anxious to see how the appeal is argued.

Sure, the point is there is no perfect system. This is just the best we've been able to come up with over a few millennia, and no we don't execute wonderfully and certainly our voting/jury population is full of interesting ideals, but it's what we have and it's _mostly_ worked over time. I'm not sure where you are but I'm curious to know of other systems considered "better"

I’m based in Belgium. Definitely not perfect, but different countries use different systems. In general, juries are only used when dealing with murder cases. All other issues are ruled upon directly by judges, who makes a direct interpretation of the law. If you’re dealing with a tax case, you will generally be assigned a judge somewhat familiar with tax law. Same if you’re dealing with a contract or a commercial issue, etc.

One can expect any judge to be an individual with above average intellectual ability.

This is one of those cases where those doing downvoting really should explain why they downvote.

I personally agree with following:

* Defendant being dick or unpleasant should not affect guilty/not guilty verdict in fair justice system.

* Defendant being charismatic or seemingly intelligent should not affect guilty/not guilty verdict in fair justice system either.

* A panel of judges with specialised experience often makes a lot more sense than a jury.

>Which, all things considering, is ridiculous. People shouldn't be able to be convicted because they're assholes (even if they are).

Why not? This is basically what the law does as well: codifies what society considers punishable assholery (e.g. murdering people or stealing or etc...).

So convicting him because he has been as asshole (even if it's in an unrelated case) is not that different to convicting him for being guilt on this or that legally defined behavior -- it's just not written down in a law book.

> A panel of judges with specialised experience often makes a lot more sense than a jury.

This would make sense in a country where trust in authorities is high, and people generally believe that the judges and the justice system is impartial and fair, without too much personal and hidden agendas.

But in a country where the trust in the system is lower, a jury of peers provides a safety mechanism so that the justice system cannot diverge too far from the point of view of the "common man".

People can’t grasp complex matters and lawyers specifically choose the least intelligent easiest to sway and manipulate people to serve on juries.

That's the kind of claim for which it's useful to have a citation. Because it's not generally true. This is an old study ('76), but they found that the jury selection processes biases against both high and low educational attainment, for example: https://www.jstor.org/stable/3053202?seq=1#page_scan_tab_con...

One of my friends just served on the jury for a murder trial. He's got a Ph.D.. From my recollection, at least two of the other jurors also had postgraduate degrees.

Remember that the jury selection process is managed jointly -- which somewhat naturally leads to the clipping off of people at either end of the extremes that the defense and prosecution are concerned about.

A study from 1976 might as well be from 976, we still ate humans and worshipped star gods back then.

Even worse, Star Wars was 1977... In 1976, we were still worshiping Rocky Balboa!

Then I guess it is fortunate that neither the defense nor the prosecution get to just select whichever jurors they want without input from the other side.

Whether it's right or wrong, you don't earn the benefit of the doubt in tenuous cases by being a huge asshole.

The "jury of your peers" exists to provide a contextual moral component to the law. If your peers think you did no wrong, it doesn't matter what the letter of the law says: a crime that is justifiable to society deserves no punishment.

Conversely, if what you've done is not justifiable to society, you should be punished for it even if it is not a crime. The easiest way to understand this is when first-mover advantages run amok. If you're the first person to think of some dastardly evil, you should not be permitted to do it just because nobody has yet written a law prohibiting it. Like, say, the Coca-Cola Corporation is not innocent for putting addictive substances in their drinks simply because it wasn't illegal at the time. And Shkreli's price gouging doesn't sit well with anybody either. A person's ignorance about some harm does not constitute permission to commit that harm against them.

>When has the average person been able to grasp complex matters relating to say, securities fraud?

The defendant has an attorney whose job it is to explain these matters to the jury.

Except, of course, this has a natural side-effect of incentivizing people to not be assholes.

You're not wrong. Humans are fallible and thus so are jury trials.

But judges are infallible and thus so are bench trials?

Um no one said or even implied either of those things

It does seem to be implied if you are invoking human fallibility to bolster an argument that jury trials are bad.

How does jury trials being imperfect imply that bench trials are perfect? A being true does not mean B is false...

The OP was saying that bench trials are much better, not just that jury trials are flawed.

better != perfect

OK, so the argument is that regular people are... more fallible than a judge? I don't understand what you want to say at this point.

Judges are either appointed or elected, both equates to judges being political creatures.

It's a rhetorical question.

Agreed, but I question how smart Shkreli could be if he did not opt for a bench trial given his reputation.

A jury trial is a privilege which defendants can choose to waive.

First, a judge can usually give a "directed verdict" of the person is obviously innocent.

Secondly it is much easier to pay off a judge and keep it quiet than a bunch of random jurors.

Thirdly judges can become calloused by virtue of their continued sentencing people to prison. They won't have the empathy that the jury will feel for both the accuser and the accused.

Fourth, the jury can ignore an outrageous law. For example oftentimes they refused to convict escaped slaves in the north.

Putting your freedom in the hands of one person who may very well be corrupt is much more dangerous than puttIng it in the hands of regular people.

Additionally I can't remember where, but I heard that 10 people or so working together usually come up with as good a solution as an expert anyways.

Probably, but I hope we haven't entered a world where we lock people up based on not liking their tone or attitude.

Try taking a attitude with a judge and see how much Contempt of Court you can rack up.

In modern times we've arrested plenty of performers, Lenny Bruce, various rock musicians for being "lewd" or other retarded reasons. It only gets worse farther back you go.

As a society we love to lock up those who make us feel uncomfortable or are "weird".