Thinking About Juries (27 cents)

In my 45 years as a lawyer, I had virtually no experience with juries.  In my 45 years as a resident of Washington DC, when I was summoned for jury duty perhaps 20 times, I have never been selected as a juror.  Therefore, my qualifications to sermonize on the subject are questionable at best.  Nevertheless…….

Yesterday, I spent the day as a perspective juror at DC’s Superior Court, as I tend to do once every two years or so.  Usually, I am sent out on one or two large panels, hear a little about the prospective case and see some of the players, and respond to the first, basic questions.  Then, I am notified that I have not been selected to serve.  I always assume this is because I identify as a lawyer.  This time, it was a bit different, as I didn’t even get called for a panel.  There were two large panels, which took probably 80% of the prospective jurors.  There was not a third, and by about 2 p.m. we were dismissed.

But I did have a chance to watch the new (or at least relatively new) introductory and explanatory film which is shown to all jurors, to let them know how happy the world is that they are serving, how important it is, and what to expect.  I would give the film a B-/C+, I think.  There is an introduction by the chief judge, speaking in a strange sort of slow motion, followed by a professor at a local law school who claims to study the jury system.  He is speaking to a perfectly racially and ethnically balanced fake jury, who ask him questions, some of which he answers directly, and some of which are explained by well known trial scenes in several well known films.

One thing in the film really struck me.  The attorney is telling the fake jury about the voir dire process – when some prospective jurors are knocked out and others selected.  He basically doesn’t want the rejected jurors to feel like they are losers, it appears.  But in the process, he claims that the goal of the attorneys in the case is simply to seat the most objective, unbiased jury possible.

Now you and I know this isn’t true.  We know that each attorney is trying to stack the jury with members who he is convinced will protect his client.  Objectivity has nothing to do with it.  Whose eyes are they trying to pull the wool over?  And the film goes on to portray the jury system as the best system imaginable to determine guilt or innocence.

This may or may not be true.  Whether there are other systems that might be more apt to reach the right decision in a case, I reallly don’t know.  What I do know is that the jury system is far from infallible.

We know that there are a lot of reasons why sometimes innocent people are found guilty, and guilty people escape punishment.  Witnesses lie.  Lawyers do a particularly bad job.  And……jurors can be biased, or can miss important facts, or can misconstrue (or forget) specific instructions from the judge.  All sorts of things can happen.

And sometimes, the fault lies with the jurors.

When I was in law school, I participated in a mock trial.  I was a member of a three person defense team.  Our client was accused of hiring some thugs to murder someone in a Connecticut road house.  The murder took place, the murderer was caught, and he and our client were accused of the crime.  Only our client was being tried in our particular case.

The case was based on a real crime.  We had access to all of the pertinent court records in the Connecticut court.  When we first met (the six lawyers, three to a side, and the various witnesses, who were also students), we made a fatal error.  We decided not to change the names of the defendant, the victim and the witnesses.  We used their real names.

Our jury was from a ladies’ social group in New Haven.  They listened attentively to the testimony and the lawyers’ statements. We of the defense were very pleased with our performance.  We totally outclassed the prosecution.  The state had simply not the evidence to prove the case.  When the jury withdrew to deliberate, we were completely certain that our client would be found innocent.

He was found guilty as charged.

Why?  We asked this of the jury members.  Their response was shocking.  Their verdict had nothing to do with way the case was presented, or with the evidence.  It had to do with the defendant’s name.  He was apparently a well known southern Connecticut racketeer, and these jurors knew he must be guilty.  Simple as that.

Big lesson learned here.

The lesson was repeated, I think, in the George Zimmerman/Trayvon Martin case.  I saw Lisa Bloom last night, the lawyer and legal correspondent who covered the case and who has just written a book on the jury deliberations leading to Zimmerman’s acquittal.  it seemed that a lot went on in that jury room that was not related to the evidence, or even the law.  A lot was based on racially induced prejudices.  These five white women apparently treated the lone black woman as if she were a child, and brought their prejudices to their conclusion.  At least this is the way Bloom sees it, and I will take her word for it.  A different jury, hearing the same evidence, could easily have reached a different verdict. 

So what is the conclusion?

Societies do need to have a way to determine who is innocent and who is guilty.  And it has to be a way that members of that society respect.  Otherwise there is chaos.  Our society ( and English society before us) relies on the jury system.  And when you balance out the needs of society to have an established way to determine innocence or guilt against the right of an accused to be found guilty or innocent with accuracy, perhaps society’s needs are more important.  Especially, when the judicial system has been worked and reworked to give the accused the benefit of the doubt.  I don’t know.

All I know is that there is no way to believe that jury verdicts are correct, and that we have found the best system to determine guilt or innocence that is imaginable.

Where to go from here, I am not sure.



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