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: A Public Defender's Journal

Title change

By swd

In my haste to begin blogging, I couldn't think of a good title for this space, so I went with the obvious. I'm a public defender, I'm writing about day-to-day work, hence, "A Public Defender's Journal." However, this title was always provisional, until I could think of something better. I've finally found something that I think fits. Granted, it is going to change where I stand in the listings at Public Defender Stuff, but sacrifices must be made.

As I blogged about last November, I have become interested in the things that lie under our daily practice. I have become intensely interested in the Common Law as we inherited it from England. Granted, this project is moving very slowly. And I mean very slowly.

Nonetheless, I was reading about Henry Bracton, a systematizer of the Common Law in the thirteenth century, and a forerunner of the more famous Blackstone, in my old copy of Bryce Lyon's Constitutional and Legal History of Medieval England, when I ran across an old Common Law procedure designed to encourage the accused to embrace trial by jury.

It is also known as crushing. If the accused elected to stand mute, then he would undergo La Peine Forte et Dure. According to Lyon, the accused

were loaded with heavy chains and placed on the ground in the worst part of the prison; they were fed a little water one day and a little bread the next. We also learn that more iron or stones were put upon the individual to make his imprisonment more painful and to persuade him to accept trial by jury. Under such hideous conditions many men chose to die rather than to take their chances by trial with jury.

You see, if the defendant lost at trial, his entire estate would escheat to the King. Because his family would be left without any means of support, the accused often opted to be crushed to death.

Thus are the origins of our most hallowed institution in the criminal justice system, the trial by jury. Needless to say, the next time I hear a client demand that I "crank up the jury," I will be chuckling silently at the irony.

Full post as published by A Public Defender's Journal on July 17, 2007 (boomark / email).