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February 10, 2017

New York Law Journal

By: Joel Cohen,

In 1670 England, a judge, infuriated by his jury’s decision to not convict William Penn for unlawful assembly, locked his jurors away overnight without food or water.  He then fined them for contempt, and sent them to prison until they paid.  Edward Bushel refused to pay.  His protest resulted in a decision that jurors could not be punished simply because of the verdict they returned.  Bushel’s Case, 124 E.R. 1006.

Today, although a jury cannot be held in contempt for its verdict, it is completely fair game for commentators to criticize—after all, why shouldn’t journalists write that O.J.’s acquittal was out of line, or that Rubin “Hurricane” Carter’s conviction was unjust? But do the same rules apply when the prosecutor, defense attorney or even the judge chooses to lash out publicly against a jury verdict, even if his disagreement is in good faith?

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