The Jury: Trial and Error in the American Courtroom, by Stephen J. Adler, New York: Times Books, 285 pages, $25.00
We the Jury: The Jury System and the Ideal of Democracy, by Jeffrey Abramson, New York: Basic Books, 308 pages, $25.00
When they move from room to room, they go as a group, escorted by men in uniform," writes Stephen Adler of his subjects. "They are supposed to follow directions, ask no questions, make no demands." In cases where their captivity is prolonged, some suffer serious financial losses, while others are unable to nurse an ailing spouse or fly to a loved one's deathbed. "It was the closest I've ever been to being in jail," one woman said.
Such can be the experience of those called to serve on that reputedly all-powerful body, the jury. For many of us, no doubt, the potential excitement of acting a part in a real courtroom drama outweighs any indignation at the compulsory aspect of the adventure. Still, jury duty helps point up one of our legal system's less endearing features: its penchant for casually inflicting the kind of harms for which it would demand the most stringent punishment were they to be inflicted by anyone else.
Take the case of lost wages. Often, these days, a disgruntled applicant will drag an employer to court claiming to have been wrongfully turned down for a job. If it approves of his case, our legal system is eager to guarantee him the most liberal measure of compensation. Naturally, he'll sue for full back salary since the date at which he should have joined the payroll--without, of course, having to go back and perform any of the actual work in question. Depending on the law involved, he may also demand the cash value of fringe benefits, overtime and lost promotions, training, damages for emotional disturbance, and on and on. Whole days and weeks may be spent at trial squabbling over these entitlements.
But what about the jurors conscripted to hear his case? What can they expect as compensation for their lost chance to earn a living? Some purely arbitrary, token sum, such as a flat $15 a day, no matter what their actual pay would have been on the outside. Otherwise, lawyers will tell you, people will seize on exaggerated notions of the value of their time, and courts are too busy to argue about that kind of thing.
Or consider the issue of privacy. In a well-known California decision, a court ruled that a discount store unlawfully invaded the privacy of applicants for security guard jobs by asking them to fill out an off-the-shelf psychological questionnaire, even though 1) mental stability might seem to be a valuable trait in guards, who are apt to use physical force for which their employer is legally liable; 2) the store was not going to base its hiring decision on any one answer, nor release the results; and 3) no one had to apply for the guard jobs who didn't want to.
Contrast that with the treatment of Dianna Brandborg, the 48-year-old office manager from near Dallas who got drafted as a prospective juror last year. Like many jurors, she was handed a questionnaire curtly demanding information about her religion, political views, income, membership in controversial organizations, reading and TV viewing preferences, what make of car she owned, and so forth. Brandborg has lived with her husband for 20 years in the town of Shady Shores, and describes herself as "probably as law-abiding a person as there ever was. I've never even gotten a traffic ticket." But she found the questions intrusive and declined to answer some of them, asking the judge for a chance to argue that these matters were irrelevant to her ability to serve as an impartial juror. Instead, he summarily found her in contempt of court and sentenced her to three days in jail and a $200 fine, a ruling upheld on appeal. "We can't let jurors decide what questions they will ask and won't ask," a local law professor explained.
Then there's the matter of discrimination. The lawyers of America, as we know, file vast numbers of suits these days charging private parties with illegal discrimination. Sometimes the acts of bias are alleged to be subtle, or structural, or unconscious, which does not excuse the defendant from possible liability for millions of dollars in damages. When sued, an employer or landlord or lender normally swears to the court that a terrible mistake has been made, that it is a fervent opponent of discrimination or stereotyping of any sort and has spent a fortune on diversity training for its managers. The plaintiff, with equal regularity, argues that a major award of punitive damages is needed to drive home the lesson that discrimination is the wickedest behavior known on this planet. (Hughes Aircraft was hit with $80 million in punitive damages in October following a complaint by two employees.)
But when it comes time to pick a jury for trial, both sets of lawyers plunge into their own frenzy of discrimination, using their free challenges to knock out jurors based on demographic category: Religion, national origin, age, and income are among the favorites. When it comes to jury selection, it's virtually malpractice for lawyers not to rely on group stereotyping of the grossest sort.
Women "are often prejudiced against other women they envy, for example, those who are more attractive," is one groaner from The Art of Selecting a Jury, published as recently as 1988. Mexican-American jurors are "passive" and "Orientals...tend to go along with the majority," we learn from a manual in recent use by Texas prosecutors. All of this goes way back: Clarence Darrow, representing criminal defendants, used to avoid jurors of Scandinavian descent because they had "too strong a respect for law as law." (Some of us are losing it, I can tell you.)
Legal gunslinger Gerry Spence, in the same situation, reportedly has favored overweight jurors on the grounds that, as Stephen Adler puts it, "fat people lacked self-control and wouldn't demand as much law-abiding discipline from others," and also preferred men to women because "men had more experience with hell-raising and were more forgiving of it." Nothing subtle or unconscious here.
Although the Supreme Court has lately ordered a halt to the use of race, and even more recently sex, as categories in jury-picking, the practice continues, in part because lawyers appear to enjoy a considerably more indulgent enforcement regime than, say, employers: If they produce some neutral-sounding grounds for their decision, they sidestep an inquiry into their motivation or the effects of their choices. The tradition, after all, is that these are peremptory strikes, requiring, as Jeffrey Abramson puts it, "no justification, no spoken word of explanation, no reason at all beyond a hunch, an intuition." (One can well imagine what would happen to an employer that asserted a right to turn down job applicants on such a basis.)
The $200-million-a-year jury-consulting industry helps arm lawyers with more numerous and comprehensive prejudices than instinct and experience alone might have furnished, to resolve those nagging questions of borderline stereotyping: Will Presbyterians be more or less generous with defendants' money than Congregationalists? Do software writers count as a warm and fuzzy occupational group, like prose writers, or are they too much like engineers, widely (and revealingly) booted from juries as "too analytic"? The "impartial juror" is just a fiction, declares an ad for lawyers touting another selection primer that "shows you how to assemble your winning jury, step-by-step." Consultants advise that "logic plays a minimal role" in the courtroom and the real trick is to identify the jurors' "psychological anchors."
These two books, both interesting and valuable in different ways, help show how bad things have gotten in our courts. Stephen Adler, legal affairs editor of The Wall Street Journal, offers well-reported narratives of six recent cases from which he draws fairly scathing conclusions about how the jury system is working. Jeffrey Abramson, who teaches politics at Brandeis, offers a wider overview of the institution's history, before settling down to concentrate mostly on the issue of racial bias in criminal trials. Neither book is wholly free from the Fourth of July bunting with which discussions of this topic are commonly festooned, and Abramson in particular shows a tendency toward liberal piety. Still, the books are clearly written and informative, and the authors' factual findings speak for themselves.