Jury = Justice? Forget it!
halcombe
It amply demonstrates the fundamental weaknesses of the jury system:
1 The finding of facts, marshalling the findings, and coming to
conclusions from those facts is a highly specialised and difficult
job.
Even a lot of the best lawyers in the country would not be up to the
task.
The US system, as with all common law jurisdictions, delegates this
job to rank amateurs. And in the most serious and most complicated
cases, too.
In England, fortunately, jury trial in civil cases has been quite rare
since the mid 1930s. Law and fact are both decided by judges. There is
no regret, that I am aware of, that the change was made.
One only needs to look at some of the judgements of English trial
judges [1] to see the complexity of the process laid bare.
2 Juries, as well as being amateurs, do not give reasons for their
decisions.
Reasons are vital in regulating any intrusion of the state upon the
individual. Government departments (in the UK, certainly) are often
bound by statute to give reasons for their decisions. Judges almost
inevitably do so.
Reasons serve two main functions: they require the decider to come up
with an explanation that will sound reasonable when read out in court;
and give tribunals with appellate jurisdiction a much better chance of
identifying errors of law and fact whereby those decisions deserve to
be struck down.
And, for the most vital decisions, sometimes affecting whether the
state is to kill a man, we have no reasons at all. We deliberately put
ourselves in the dark. As some bizarre medieval act of faith, making
as much sense as trial by combat.
In England, the situation is worse, in that any research into jury
deliberations constitutes a criminal offence! At least, US jurors are
allowed to condemn themselves out of their own mouths.
It's high time this antique institution was consigned to the junkyard.
Never going to happen? Think slavery: in 1720, everyone in England
thought it was fine - even that eventual vanguard of anti-slavery, the
Quakers; in 1833, it was abolished in British colonies. That, I
reckon, is about the timetable for the demise of the jury......
[1] http://www.courtservice.gov.uk/judgments/judg_frame.htm?OpenDocument');
***********************
http://www.washingtonpost.com/wp-dyn/articles/A1181-2002Aug9.html
washingtonpost.com
A Jury of Your Peers? Only If You're Clueless
By Alan Berlow
Sunday, August 11, 2002; Page B01
In May 1999, Associate Supreme Court Justice Sandra Day O'Connor
delivered a remarkable address in which she suggested that jurors
routinely rendered verdicts without enough information to do their
jobs. "Too often," O'Connor told the National Conference on Public
Trust in the Justice System, "jurors are allowed to do nothing but
listen passively to the testimony, without any idea what the legal
issues are in the case, not allowed to take notes or participate in
any way, and finally to be read a virtually incomprehensible set of
instructions and sent into the jury room to reach a verdict in a case
they may not understand much better than they did before the trial
began."
Surprisingly, O'Connor's damning critique went unreported in the major
media. Even more surprisingly, only eight months later, O'Connor
seemed to have abandoned her message: She joined Chief Justice William
Rehnquist in a 5-4 opinion that stated in part that "a jury is
presumed both to follow [the judge's] instructions and to understand a
judge's answer to its question."
It would be nice to believe that, but the reality is far closer to
what O'Connor described in her speech. Indeed, that 5-4 decision,
which led to the execution of convicted Virginia cop killer Lonnie
Weeks, is a good example of what she'd been talking about. At least
three jurors in the Weeks case were so profoundly confused about the
judge's instructions that they wrongly believed the law might require
them to impose a death sentence. Two of them made that clear by
questions they sent to the judge during deliberations, and the third
later told me that they believed "we weren't there to discuss the
penalty. We were there just to find out whether he was guilty or
innocent, and we all understood that it was the death penalty if he
was guilty."
In fact, U.S. law for the past quarter-century has said precisely the
opposite. There are no mandatory death sentences for any crime and
jurors must in all cases consider a sentence other than death. But
when the jurors in Weeks's case asked their question -- specifically,
about how much weight they were expected to give to the aggravating
circumstances cited by the prosecution -- the judge merely did what
many judges do: He told them to reread the instructions they hadn't
understood in the first place.
That's untenable -- both for the jury and the defendant. In any trial
-- whether it involves burglary, product liability, personal injury,
corporate crime or murder -- the defendant has a right to jurors who
understand their legal obligations.
It's difficult enough, in today's complex society, for a juror to
comprehend the substance of the testimony. Post-trial interviews with
jurors in the Arthur Andersen/Enron obstruction-of-justice case
revealed they simply hadn't understood much of the government's
argument. Cases of medical malpractice, product liability or the
environment often turn on arcane scientific issues. Clarifying these
matters is the job of lawyers, who have a strong interest in helping
jurors make sense of their arguments.
But it should be the job of the judge to make sense of the law --
especially when jurors seek clarifications of legal language. It has
long been a central tenet of our justice system that jurors go about
their business in a "black box," sealed off from outside scrutiny or
pressure. That should not mean they are left in the dark.
Nevertheless, judges too often refuse to answer jurors' questions --
in some cases, judges confide, because they fear that deviating from
statutory instructions or instructions agreed to by the two sides in a
case could lead to reversal on appeal. Judges, particularly in states
where they are elected, don't want their opponents citing reversal
rates.
Fred Baca, the jury foreman in a recent Texas murder case, told me
that he sent several questions to the judge seeking clarifications of
his instructions but was repeatedly brushed aside. "We were drowning
and we wanted some kind of help. And when it's that serious, for God
sakes when you're pleading for help, you have to give us something. We
were reasonable people, intelligent people, making a very difficult
decision, asking for help."
Instances of juror confusion are found throughout the judicial system.
But the greatest impact -- and the most dramatic evidence -- is found
in capital murder cases. Over the past decade, the Capital Jury
Project, a National Science Foundation-backed consortium of legal
scholars, psychologists and sociologists, has examined this issue in
interviews with more than 1,200 jurors who ruled in 350 capital murder
trials. I've examined many of these interviews, and they make it clear
that Lonnie Weeks's jurors weren't the only ones who didn't understand
the law on mandatory death sentences. More than half the jurors in one
CJP survey thought death was the only legally acceptable punishment
for premeditated murder. An astonishing 70 percent believed death was
the only acceptable punishment for someone previously convicted of
murder.
One woman, recollecting her capital jury experience, said she felt as
if she and her fellow jurors had been told, "You play doctor today. We
will give you instructions on how to amputate a limb. If we take it
off, no chance of infection and the patient will live, but if you do
not take it off, the patient might regain use of that arm . . . and
now you make the decision. . . . You cannot ask questions. . . ."
Most jurors are not this aware of the extent of their own confusion.
Consider, for example, Michael Callahan, a member of an Illinois jury
that convicted Rolando Cruz of the 1983 murder of a 10-year-old girl.
In an interview, he told me he thought the state's evidence had been
incredibly weak. "I can remember vividly when the state's attorney
rested his case, the thought in my mind was, 'This is all we're going
to hear? I mean, this is it? . . . I was just aghast.' "
So what did Callahan do? Well, with the other 11 jurors he voted to
find Cruz and a second defendant guilty of murder. Why? "My thoughts
were, okay, I know there's going to be an appeal. So I'm going to find
them guilty, okay? I'm not totally happy with that, but I wasn't happy
letting them go. . . . However, there's enough evidence if it were to
be believed that maybe, maybe, maybe there's something there. So on
that basis I thought, yeah, I'll find 'em guilty. Not going to give
them the death penalty. Never do that. But sooner or later the truth
is going to come out."
The judge, as it turned out, did sentence Cruz to death . But the
truth, as Callahan suspected, did come out -- about a decade later.
Cruz had nothing to do with the murder. He lost nearly 12 years of his
life, most of it on death row.
Capital Jury Project founder William Bowers says the assumptions about
the law jurors bring into the courtroom are often based on "folk
knowledge," misconceptions he believes derive largely from television.
That may explain Callahan's expectation that somebody else would fix
his jury's mistake. It also may explain why jurors in the 35
death-penalty states that have "life without parole" statutes -- where
a jury can guarantee that a convict will spend the rest of his life in
prison -- often continue to believe that all murder convicts can be
paroled anyway. In Pennsylvania, jurors in one study estimated that
someone sentenced to life without parole would be out in 12 to 14
years.
Data from a decade of CJP interviews also suggests that jurors
frequently misunderstand such basic concepts as "mitigation," which
means that a jury can take into consideration a defendant's history or
state of mind to reduce his culpability for a crime. In one study,
two-thirds of capital jurors in South Carolina wrongly believed that
they had to be unanimous in finding a factor "mitigating" -- when in
fact it takes only one juror, who in effect can veto a death sentence.
Even worse, jurors too often do not even understand the state's basic
requirement to prove its case beyond a reasonable doubt, says B.
Michael Dann, a retired Arizona judge now with the National Center for
State Courts in Williamsburg, Va. "When a jury is confused on
something as fundamental as proof beyond a reasonable doubt, then that
calls into question the validity of the conviction," Dann says.
But read California's official instruction on reasonable doubt, and
try to imagine how clear it would be to you, as a juror: "It is not a
mere possible doubt; because everything relating to human affairs is
open to some possible or imaginary doubt. It is that state of the case
which, after the entire comparison and consideration of all the
evidence, leaves the minds of the jurors in that condition that they
cannot say they feel an abiding conviction of the truth of the
charge." This instruction is "abstract," and "largely phrased in the
negative" says Peter Tiersma, professor at Loyola Law School in Los
Angeles and author of "Legal Language." And he notes the use of the
word "conviction," which, when heard in a courtroom, "almost always
means that someone is going to prison, not that someone firmly
believes something."
It might not be possible to eliminate juror confusion, but it can be
reduced. Numerous studies have proven what seems obvious: Writing
instructions in plain English helps jurors understand them. Dann says
jury instructions are typically written for someone with a graduate
school education, but should be written at a sixth-grade level.
A few states, such as Arizona, Michigan and Delaware, have already
simplified the language of their instructions. Others are in the
process -- including California, where Tiersma is on a task force
proposing a long list of changes. For example, when a jury is being
told how to consider circumstantial evidence, California's current
statutory language includes this sentence: "Circumstantial evidence is
evidence that, if found to be true, proves a fact from which an
inference of the existence of another fact may be drawn."
Under the task force's proposal, that sentence would read: "Here is an
example of how circumstantial evidence works: A party proves Fact A,
then argues that because Fact A is true, logically you should conclude
that Fact B is also true."
Individual judges also can choose to be more jury-friendly. Some read
certain instructions at the beginning of a trial as well as at the
end, which provides jurors a sort of road map through the unfolding
landscape of evidence. Judges also can choose to be more responsive to
questions from jurors. Sadly, that isn't going to happen to the extent
it should until judges are more interested in justice than their
careers.
The attitude of the judicial hierarchy isn't encouraging. Bonnie
Sudderth, the Texas judge who is president of the 2,600-member
American Judges Association, the largest judges' association in the
country, says the group has never addressed the issue of instructions
and juror confusion.
When I asked whom else I might speak to about the issue she referred
me to another Texas judge, Sharen Wilson, who effectively dismissed my
concerns. "I think the level of confusion, honestly, is a minimum,"
Wilson said, insisting that she had seen only two or three instances
of confused juries in the past decade.
Then, on reflection, she did recall one case earlier this year in
which a jury that intended to send a defendant to prison learned on
hearing the verdict read that it had mistakenly voted for probation.
But she seemed to think that was okay: "We let juries make those
decisions," Wilson said.
Or, one might say, those mistakes.
Alan Berlow is the producer of "Deadly Decisions," a documentary about
juries in capital murder cases, airing this month on National Public
Radio.
© 2002 The Washington Post Company
@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@
More of much of the same at The Lincoln Plawg:
http://lincolnplawg.blogspot.com
"People who like this sort of thing will find this the sort of thing
they like."
Jon Beaver
wrote:
>Below, probably the scariest article I've read this year.
>
>It amply demonstrates the fundamental weaknesses of the jury system:
The only "fundamental weakness of the jury system" is that someone
other than you gets to decide who decides their case. You find
Justice O'Connor's position confusing? Maybe you're missing
something.
- Jon Beaver