A juror didn’t tell the whole truth — now what?

Picture posted by Vargas on his Facebook page, taken from the motion to set aside the verdict for jury misconduct filed by Liang’s lawyer

Unfortunately, it seems that I was right when I suspected Peter Liang wasn’t convicted by an impartial jury.

Michael Vargas, 62, who had been expressing anti-police brutality sentiments in his facebook postings, who revealed on Mar 26 that his father had served more than seven years in prison for accidentally shooting a friend, seems to have failed deliberately to mention this material fact to the court — probably in order to secure himself a position in the jury and to make sure Liang “did not get off easy”.

It makes me wonder how many others have been unfairly convicted by prejudiced juries because, needless to say, few must have enjoyed the same luxury Liang has enjoyed — had there not been the large-scale protests by the Asian community, Ken Thompson probably wouldn’t have made the no-jail recommendation, and Mr. Vargas wouldn’t have spoken out against it, and nobody would have found out about him.

And there is indeed much more to be reexamined besides Mr. Vargas’s jury service. In Marshall v. United States, Marshall’s trial judge learned that some jurors had read prejudicial news articles containing facts inadmissible into evidence, but felt no prejudice against the defendant after questioning those jurors, who assured they “would not be influenced by the news” and “could decide the case only on the evidence of record”. The supreme court held that “the harm to petitioner that resulted when prejudicial information denied admission into evidence was brought before jurors through newspapers requires that a new trial be granted”, and affirmed that “the prejudice to the defendant is almost certain to be as great when that evidence reaches the jury through news accounts as when it is a part of the prosecution’s evidence. It may indeed be greater for it is then not tempered by protective procedures.”

In the case of Liang, just to mention one of the many doubts, the rumor that Liang texted his union rep while leaving Akai Gurley to die, although already declared to be false by the lead prosecutor back in 2015, has been and is still being actively perpetuated (thanks to Daily News, who never even bothered to correct their error). It must have reached some, if not all the jurors. What safeguards have been used to prevent its influence on the trial? Have they been effective?

If it doesn’t teach us anything else, the case of Liang should at least teach us one thing:

The cost of true justice in a criminal case is extremely high.

Society would have to exhaust all its resources to make absolutely sure that every case is tried fairly, that juries are all impartial, that inferences are all valid, and nobody is wrongfully sent to jail. Just an impartial jury would require at least a thorough background check of every member, including interviews with family, friends and coworkers, and maybe even a psychological evaluation. Otherwise, we can’t preclude, say, the possibility that a juror in a robbery case might have a friend who has been robbed or might have watched a video that left a deep impression or might live in an unsafe neighborhood with rampant robberies and thus wants to see the defendant convicted.

Unless the court processes just a few cases a year, this level of justice, although ideal, is far from affordable. All we have right now — unless the defendant can have tens of thousands of people rallying for his fair trial as was there for Liang — seems to be “justice” that does nothing more than patch-fixing problems: Someone is making trouble? Keep him in jail! Someone is likely to make trouble? More policing on him. Sometimes, even this level of justice isn’t attainable. Then all we are left with is mob justice —

Whereas Annie Tan compares Akai Gurley to Vincent Chin, I’d like to compare Peter Liang to Michael Brown. Those who followed the shooting must remember how quickly the public sentiment turned when the police department, against the caution of the Department of Justice, released the video footage of the robbery Michael Brown committed minutes before his shooting. All of the sudden, an innocent unarmed man shot by a brutal cop became a violent criminal who deserved killing. And this trial and conviction by the public, both as the jury and as the judge, together with the death penalty that preceded, now all seems fair and just because, well, black people do drugs, they steal and rob, they disrupt the community, and they deserve to be punished. In much the same way, Liang is guilty, because cops are brutal, cops are bloodthirsty, and cops abuse their forces.

But what if we didn’t have all the mess in the first place?

What if everybody, regardless of his or her race and family income, has equal and adequate access to quality education and gainful employment? What if we build justice from the bottom up, from the beginning, and from within?

Maybe it’s time that we change what we think about and talk about. Instead of criminal justice, how about social justice?