|
and voting, but must have 72 votes. It is
for this reason that the Chair desires all
delegates to remain in the chamber. The
Clerk will please ring the quorum bell and
the Sergeant-at-Arms will please have all
delegates in the corridor returned to the
chamber.
The question arises on the motion to re-
consider the vote by which Committee Rec-
ommendations R&P-1 and R&P-2 were
adopted on second reading so that the vote
by which Amendment No. 2 was rejected
may be reconsidered. In other words, it is
necessary to put ,to you two successive mo-
tions for reconsideration.
Although there are two questions, the
vote will be one vote on the motion to re-
consider. The motion is a motion of Dele-
gate Dukes. The Amendment No. 2 is the
amendment to add the section dealing with
juries being the judge of the law as well
as the fact in criminal cases so you should
have before you Amendment No. 2 to Com-
mittee Recommendations R&P-1 and R&P-2
as amended by Style Committee Report
S&D-9. It is the amendment that says that
in the trial of all criminal cases the jury
shall be the judges of the law as well as
the fact except that the court may pass
upon the sufficiency of the evidence to sus-
tain a conviction.
The Chair recognizes Delegate Dukes to
speak to the motion.
DELEGATE DUKES: Mr. President, I
have no desire to debate the matter at
gTeat length. I ask only that the body recall
that the vote by which the amendment
failed was 60 to GO, and it failed because
of the .tie, the same problem that has
plagued us throughout the day on both
sides of the labor question.
Since there were 20 delegates not pres-
ent, since a large group of the body
thought it was serious, I asked to have the
matter reconsidered at a time when every-
body was here. I would appreciate your
giving us an opportunity to take a vote on
the entire problem. I have nothing further
to say.
THE PRESIDENT: Is there any further
discussion?
Delegate Powers.
DELEGATE POWERS: I am concerned
about this both in substance and in the
effect that the reconsideration will have
on the Convention. I have remained silent
during the time that this subject has been
debated, and I believe this will be the sev-
enth vote we have taken directly or indi-
|
rectly on this subject. I think I have some
credentials which would justify expressing
an opinion. I figured out over the weekend
that as a trial lawyer for 27 years and as
a judge for six years I have tried about
350 criminal jury cases. Of course, as a
lawyer, your clients are interested more
in being acquitted than they are in justice,
but judges are concerned with seeing that
a fair trial is afforded and that justice is
done.
I do not believe we have a high grade of
justice and even-handed justice by having
the jury be the judge of the facts as well
as the law.
I would like to point out to the members,
to the delegates here, that when a judge
gives the instructions on the law, he first
has conferred with counsel on both sides
and in most cases there is no exception to
the instructions that are given. He defines
the crime if it needs to be defined and then
very importantly he instructs the jury that
the defendant is entitled to a presumption
of innocence and that the burden of proof
is on the State to prove beyond a reason-
able doubt the defendant's guilt and the
existence of every element of the crime
otherwise their verdict must be not guilty.
I cannot believe that when the jury is
then told .that they may completely disre-
gard this instruction and determine the law
for themselves, this meets the protection
of the federal Constitution. It does not af-
ford due process.
I agree with Delegates Henderson and
Sherbow who earlier have said that they
were of the opinion that this provision, if
it remains in our constitution, will be de-
clared unconstitutional by the Supreme
Court of the United States.
Now, in addition to the substance, I
would like to point out to the delegates
that our time is growing short. As I say,
we have had a number of votes on this. We
still have many important matters to con-
sider. We are soon going to reach a point
where the more time we spend on one
thing, the less we will be able to spend on
another. The lack of progress we have made
recently is becoming alarming, and I think
that those who are in favor of this should
take defeat with good grace, that we should
end this question once and for all by voting
no on this question of reconsideration.
I will be glad to yield to Delegate Dorsey.
DELEGATE DORSEY: I would like to
ask if the Supreme Court has not recently
refused to grant certiorari when this ques-
tion was before it.
|
