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Friday, February 22, 2013

Do We Really Need The Jury System?

One of the aspects of the Oscar Pistorius case is that South Africa has no jury system, but it is by no means alone.  Legal cases in France, for example, are decided by magistrates almost all of whom have graduated from the highly-respected École de Magistrature where they learn the law, courtroom procedures, and adjudication. In trials magistrates hear opposing legal arguments, and then rule.  There are procedures for determining whether a case should come to court, similar to our Grand Jury system and Courts of Appeals, but these too are presided over by a judge, and no juries are involved. Should we not consider such a system?

There are many obvious problems with the American jury system.  First and foremost, many trials are long and complicated, based on fine interpretations of jurisprudence far beyond the reach of jurors.  After all, the principle of the American jury system is to assemble a panel of an accused’s ‘peers’ and not experts. But while this principle is laudable, would we rather have our case heard by a magistrate trained in the law, educated to render impartial judgment, and skilled in maintaining a civil and professional order in the courtroom; or by a ragtag collection of out-of-work steamfitters, post office retirees, and welfare moms happy to pick up forty bucks and car fare?  All intellectual commitments to democracy by the people stops at the doors of the courthouse.

Second, many jury trials last far more than the ‘one day, one trial’ promised; and knowing that jury duty may last a long, long time, anyone who is agile enough to get around the rules and regulations, will do so. Small businessmen, contractors, or anyone self-employed risks losing significant income and worse, lose clients who getting tired of waiting.  Even salaried professionals who do not lose income, cede ground within the company to others who take over their accounts, and find themselves surprisingly forgotten by even the most faithful clients who wanted their affairs settled yesterday.

Third, anyone who lives in a major, crime-ridden jurisdiction like Washington, DC can count on getting a jury summons like clockwork every two years.  There are so many crimes in DC, and such a small pool from which to select jurors (so many residents are disqualified because of prison, parole, or criminal record), that such frequency is necessary to keep up with the demand.

Fourth, many cases come to court when they never should have, thus burdening the docket and the workload for everyone.  It is not enough that DC courts must deal with cases of murder, rape, aggravated assault, and armed robbery, they have to hear the most ludicrous and comical ones as well.

I have been lucky and inventive enough in my 35 years in Washington to have served only on two juries – DC was far more considerate of self-employed workers than today – and the cases were so silly that once we got in the jury room, everybody felt that they had been abused, manipulated, and all agreed to decide quickly and get out of C Street.

The first one was a marital dispute between two Romanian-American doctors, one a PhD and the other a medical doctor.  Both worked at Georgetown University and had been involved in an acrimonious divorce so divisive that the wife got a court order to keep her former husband 500 feet away from her and off of Georgetown Hospital property.  The trial hinged on whether this theoretical physicist knew where the property of the University ended and where  its affiliated Hospital began.  What a joke.  We all knew that this was simply a pissing match between two over-educated immigrants, and we had to sit there and listen to poker-faced lawyers parse out property lines, perceptual disconnects, and every other possible twisted arguments in favor or against the defendant, the husband who had crossed the line. 

Also, despite the fact that the judge kept disallowing evidence relating to the husband’s previous aggressive and invasive behavior, we all knew that this was not the first time this had happened.  Not only was the whole trial ridiculous and unnecessary; but the laws that forbade the introduction of obviously relevant information seemed stacked against any kind of considered decision.  “The fucker is guilty”, said the Jury Foreman. “Now let’s get the hell out of here”.  We shot the shit for an hour or so to give the impression that we had deliberated, then passed a note out to the judge that we were ready to pronounce our verdict.

My second trial concerned a former Chancellor of the University of the District of Columbia who had been accused of misuse of funds.  All well and good until we heard that he was accused of using an ‘official’ stereo system for his own use.  The value of the equipment barely made the cut off for larceny – at that time around $500.  “Are you kidding?”, we all yelled when we got into the Jury Room. “Political trial. Fucker is innocent”, said the Jury Foreman. “Let’s get the hell out of here.”

In the same courthouse where this absurd trial was going on was a real political trial, one in which Lyn Nofzinger, an advisor to Ronald Reagan, was accused of cashing in on his association with the former President.  It was obvious from the start that the case was a murky one, and one with little consequence for anyone, but the Federal prosecutors decided it was time to crack down on ethics abuses and use Nofzinger as their sacrificial victim.  The trial lasted a month. 

Each time I walked by the courtroom where the trial was being held, I saw jurors nodding off, filing their nails, or simply looking at the ceiling.  They had been dragooned into sitting in a trial the proceedings of which they did not understand and which had little or no bearing on their lives or the commonweal.  I followed the trial because I had been thrown into the jury pool and got out of it by confessing a virulent, lifelong, hatred of Ronald Reagan. 

Every day the accounts in the paper told of the mind-numbing dissections of minor laws and precedents, reviews of sheaves of papers and attendant documentation; and I could only imagine how bored and uninterested the secretaries, clerks, retired janitors, and pensioners were.  US law prohibits discrimination on the basis of age, so that although the Superior Court does not require you to serve after age 70, it cannot forbid you from doing so. On the jury were a number of people well past 80 who just wanted to get out of the house. It was hard enough for the younger jurors to follow the proceedings, and I can only imagine what these alter kockers made of them.

Harry Mount, writing in The Telegraph (2.21.13) recounts the trial of Vicky Pryce, a senior UK government official accused for ‘perverting the course of justice’:

That problem was an acute one in the Vicky Pryce case, where her defense was particularly unusual – the ancient defense of marital coercion. Even though the judge, Mr. Justice Sweeney, a 30-year veteran of the criminal courts, gave the jury extensive written and verbal directions about the definition of marital coercion, they still didn’t get it.

As the prosecuting counsel, Andrew Edis QC, said, this was a jury that didn’t understand its function or the very basic concept of jury trial. Mr. Justice Sweeney said he’d never seen such a situation in his career.

The writer Peter Moffat, who spent nine years as a criminal defense barrister, was equally amazed by the collapse of Pryce’s trial. (Another will now be held.) “Some of the questions the jury asked in the case are absolutely extraordinary,” says Moffat, writer of the legal dramas Silk, Criminal Justice and North Square. “They can’t have been listening at all. It’s hard to fathom”

This British case was so egregious that the jury system itself was put under scrutiny.  No one was suggesting scrapping such an ancient, revered, and august system, but perhaps there could be some reforms, such as giving jurors a little more help.

The help many jurors might want is to hear something about the case other than the blather of the lawyers.  However, listening to, consulting, or watching any information about the trial is strictly forbidden.  Jurors are also carefully screened so that they have no preconceived notions about the issues of the case – no feelings one way or another about murder, rape, incest, assault, etc.  The ideal juror should have no understanding of the moral and ethical principles governing first- second- or any-degree murder; the psychological determinants of pre-meditation; the definitions of accidental death, etc. A juror should be a thought-free dummy, a tabula rasa, an empty vessel, a nebbish with no convictions.

The whole concept of ‘a jury of your peers’ has been rightly questioned.  What exactly does that mean?  If I am a white person being judged by an all-black jury who happens to have the same socio-economic characteristics as me, am I being judged by my peers?  Or better yet, shouldn’t I be judged by white, upper-middle class professionals? They are certainly more my peers than anyone else.  Is being an American enough?  Or a DC resident?  As any Washingtonian knows, a white, upper-middle class resident of Northwest has about as much in common with a poor black resident of Anacostia as with the Man in the Moon.

Finally, many jurors resent the fact that two high-powered lawyers get to duke it out and one of them will surely get their client off on a technicality.  They feel that there is an unholy alliance between these shysters and the judicial system and the only ones who benefit are the lawyers and maybe the high-profile crook who gets off scot free.  It’s all about money, jurors rightly say. While these K Street legal gladiators win big-time cases, public defenders, bored and stultified by their bottom-feeder lives, are indifferent to the legal causes of people who need them.

So, I am for shucking the whole system, go the French magistrate way, and give a nod to our own Alexander Hamilton who was a bit chary about a governance of the mob and who would be turning over in his grave if he saw how the jury system – revered as a pillar of democracy – has been so convoluted, corrupted and has become, yes, unfair.



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