Juries on Trial

Walter Olson from the February 1995 issue

(Page 2 of 3)

The basic lines of battle were drawn long ago. "The jury system puts a ban upon intelligence and honesty, and a premium upon ignorance, stupidity, and perjury," Mark Twain famously complained. We "swear in juries composed of fools and rascals, because the system rigidly excludes honest men and men of brains." Busy and successful people dodge service, leaving it to those with time on their hands.

And yet until lately there were also currents pulling in the other direction. Long after the demise of Founding-era property requirements, many state and federal courts sought to pre-select persons known for "recognized intelligence and probity" before pulling names at random from the resulting list. Other rules allowed the empanelment of so-called blue-ribbon juries, which might even be chosen for technical expertise. Inevitably, the 1960s brought an end to such doings (what is generally reckoned to be the last gasp came in 1975, but on matters of public policy the '60s can be considered roughly as 1965-1975).

Even the practice of conditioning jury eligibility on voter registration, in search of a level of civic-mindedness that exceeds room temperature, is now thought to be unbearably elitist, as witness New York state's proposal to place every welfare recipient automatically on the jury rolls, a courtesy not extended to members of other professions. Another thing that's changed is the exclusion of jurors "for cause" for having followed press reports or local gossip about the events at issue. Older authorities might have bounced a prospective juror for being a relative or business associate of one of the parties, or for having publicly committed himself to one side. But that was a far cry from the practice of the judge who flushed out more than 200 potential jurors for knowing too much about the intensely publicized events leading up to the Oliver North trial. ("I don't like the news," said the eventual forewoman. "I don't like to watch it. It's depressing.")

To make the cut in a big case, as both these books document in detail, it helps never to have heard of Imelda Marcos, or never to have bought a newspaper, or, if you must buy a newspaper, to read it only for the funnies and horoscopes, or to declare that you "didn't understand...whatever I heard about the case." In the obscenity trial over the Robert Mapplethorpe exhibition in Cincinnati, the only prospective juror who regularly attended museums was dismissed for cause, it being felt that actual familiarity with those institutions put an "unnecessary burden" on her objectivity. Not surprisingly, in talk-of-the-town cases, vast armies of conscript material--1,017 in the Menendez double trial--must be screened in search of the few, the humble, the ill-informed. With hundreds of persons sitting side by side at desks filling out vast questionnaires (75 pages in the O.J. Simpson case, 45 pages for the trial of Reginald Denny's attackers), it must all take on rather the air of a giant college-entrance exam on awareness of current events, albeit with reverse scoring.

As if the sort of intrusive questions that annoyed Dianna Brandborg were not bad enough, Abramson reports that some lawyers have used private detectives to hunt down information about prospective jurors, riding through their neighborhoods and "interviewing acquaintances about marital problems, drinking problems, and treatment of minorities." Rather creepily, personal facts about jurors can make their way not only into the lawyers' hands but also onto the public record, or elsewhere.

The same week that the judge ruled against Brandborg, a criminal defense lawyer in nearby Fort Worth was apologizing to the court and to a member of the juror pool (who had not been chosen for service) for having allowed his client, an accused robber, access to personal data from her file. The defendant proceeded to call her at her home number and inform her that he was "impressed with her," a declaration which was apparently not met with pleasure, because he went on to make "some threatening remarks." After a trial, it is common for jurors to remark that the defendant wound up knowing a lot more about them than they ever came to know about him.

Jurors also face in-person interrogation before trial, a process that is supposed to be for the purpose of uncovering their many biases, but which shrewd lawyers use with other aims as well. An injury lawyer confided to Adler, for example, that he had found a better way of handling what might otherwise be a routine inquiry into whether any of the prospective jurors had ever been employees of the company he was suing. Instead of asking a single question, he was planning to linger over the subject, reciting the defendant's subsidiaries one after the next--had they ever worked for this one? That one? "That will make it clear that it's a big corporation."

Worse, this pretrial questioning (voir dire) can, by design or otherwise, plant in jurors' minds assumptions about the case that are oversimplified or blatantly false. Asking them whether they were ever victimized as children, for example, may cause them to assume that there is a child-victimization angle in the subsequent trial, even though the presumed culprit somehow managed to keep it from emerging in the testimony. Jurors "must not be aware that an attempt is being made to persuade them" during pretrial questioning, suggests a how-to book for lawyers. "They are convinced that they have changed their minds by themselves." New York, incredibly, does not even require a judge to be present during lawyers' screening of jurors.

Particularly grotesque is the technique known as "getting a promise." Lawyers are thought to be within their rights if they inquire whether a prospective juror's conscience would forbid him to enforce the law as it stands: The best-known example is that persons can be let off capital juries if their philosophical objections to the death penalty would keep them from voting to convict even if a crime were proved. But the promise technique goes miles beyond that. The lawyer strips his case down to its barest and most emotional essentials, and then asks whether any of the jurors would have a problem giving him a verdict on that basis. In one of Adler's deep-pocket injury cases, the plaintiff's lawyer posed the question thus: "Can you tell me," he asked prospective jurors, "that if we prove"--and he summarized his case in ultra-simplified form--that "you can return a substantial verdict?"

Forced to respond before a crowd, all the jurors meekly agreed that yes, they could assure him of that. For dramatic effect, he then proceeded to call out individual jurors' names--were you on board? And you? "The psychological research is very convincing that getting a promise does in fact work," an enthusiastic jury consultant tells Adler. "[I]f you give them positions, they adopt them."

When trial itself comes, jurors are not exactly encouraged to take the intellectual initiative; their position is more that of the Queen Bee, all-powerful in theory but immobilized and force-fed in practice. While the testimony is in progress, many judges forbid jurors from taking notes, even while everyone else in the courtroom is scribbling furiously; nor are they usually supposed to ask or suggest questions. The legal instructions on how the jury is to resolve the case are commonly withheld until the last moment, a mode of proceeding that one judge compares with asking them to watch a ball game and decide who won without letting them know the rules till play is over. When the guidelines finally do arrive, the judge (or his clerk) has frequently cast them in legal jargon aimed at withstanding appellate review, which to lay listeners might as well be Church Slavonic.

How Adler came to his conclusions is a story in itself. "I began this project under the influence of the usual myths and the conventional wisdom": Juries were repositories of Main Street common sense, not easily manipulated by lawyers, good at detecting liars, and so forth.

Indeed, The Wall Street Journal's news coverage of the law, over which he presides, has seemed at times to subscribe to the view of the world that sees the great majority of court cases as being resolved rationally at modest expense; abusive litigation as a rare exception; businesspeople, doctors, and accountants who complain about getting sued as sore losers; and, in general, everything about contemporary American litigation as pretty much ducky (except that maybe there isn't enough of it).

In this respect, as in so many others, the Journal's news side has served as the photographic negative of its editorial side. Now Adler writes as a man who has had a very close look at the sausage factory. The juries he observed compiled a "dismaying" record. He saw them "missing key points," "failing to see through the cheapest appeals to sympathy or hate," and "generally botching the job." They are much swayed by tears, even on the cheeks of lawyers. He saw "New Age bonding among jury members," but not intelligent decision making. They acquit Imelda Marcos, then think it proper to attend a soiree that she throws in their honor. ("It was so beautiful," exclaimed one. "It was swank; it was plush. I don't think I'll ever go to a bash like that again.")

He still supports the system, but now as an "act of faith." What appears to have left him especially shaken was the injustice done in the actual verdicts. In one case, a cop shows up at his ex-wife's house one morning and shoots her half-dressed boyfriend, but at trial he's personable and, as a frequent testifier, knows how to connect with a jury; they let him off despite gaping holes in his theory that it was self-defense.