[*20] " 536 U.S. at , 122 S. Ct. at 2442 (emphasis added). Moreover, the Court declined to make Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968), retroactive. DeStefano v. Woods, 392 U.S. 631, 633, 88 S. Ct. 2093, 2095, 20 L. Ed. 2d 1308 (1968) (per curiam).
* * * Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt. Duncan v. Louisiana, 391 U.S. 145, 155-156, 88 S.Ct. 1444, 1451, 20 L.Ed.2d 491 (1968) After the United States was formed, judges no longer were controlled by a king. As a result, in America’s early years, jury nullification was no longer a common place event.
The Sixth Amendment, made applicable to state criminal proceedings through the Fourteenth, affords an accused the right to trial by an impartial jury. See Duncan v. Louisiana, 391 U.S. 145, 160, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968); Jones v. Cooper, 311 F.3d 306, 310 (4th Cir. 2002). As [*38] the Supreme Court has observed, a "touchstone of a fair trial is an impartial trier of fact -- 'a jury capable and willing to decide the case solely on the evidence before it.'"
See also United States v. Harris, 536 U.S. 545, 564, 153 L. Ed. 2d 524, 122 S. Ct. 2406 (2002) (Kennedy, J., concurring) ("The grand and petit juries thus form a 'strong and two-fold barrier . . . between the liberties of the people and the prerogative of the [government].'") (quoting Duncan v. Louisiana, 391 U.S. 145, 151, 20 L. Ed. 2d 491, 88 S. Ct. 1444 (1968)).There may be instances where a reviewing court can confidently say that given the grand jury's findings, that same grand jury would have found the omitted element had the prosecutor asked.
For Example:The origin of the Due Process Clause is Chapter 39 of Magna Carta which declares that "No free man shall be taken, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land."Duncan v. Louisiana, 391 U.S. 145, 169 (1968); see also Borough of Duryea v. Guarnieri, 131 S.Ct. 2488, 14 (2011) ("The right to petition traces its origins to Magna Carta, which confirmed the right of barons to petition the King," and today an "employer's allegedly retaliatory actions against an employee do not give rise to liability under the Petition Clause unless the employee's petition relates to a matter of public concern"); and Bmw of North America, Inc. v. Gore, 517 U.S. 559, 587 (1996) (addressing due-process challenges to a punitive damages award and referencing the constitutional concern that "itself harken[s] back to the Magna Carta"). If you'd like to read the full Magna Carta that is such inspiration for these United States laws in its original Latin (and if you have a magnifying glass handy), you can do so at the document below: Photo courtesy the U.S. National Archives and Records Administration
Judge Medrano, as well as the courts of appeals, agreed with the attorneys. So for the Texas Court of Criminal Appeals to color the facts of the case in order to create some legitimacy for Roberts/Lugo decision to keep Wyatt on the jury not only defies the case law governing ineffective assistance of counsel but the normal rules of human logic as well.SOURCES:1/Duncan v. Louisiana, 391 U.S. 145 (1968)2/Tex. Code Crim. Proc.
If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Duncan v. Louisiana, 391 U.S. 145, 155156 (1968). The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendants sentence by two years, but not the factfinding necessary to put him to death.