New at Reason

Julian Sanchez | October 28, 2005

Where could a jury be found fit to try the peerless Tim Cavanaugh?

Comments

|10.28.05 @ 2:02PM|#

Hey Tim,

Before you start complaining about the quality of American juries, you should recall that in America it is the lawyers who choose who is on the jury and what evidence they get to hear.

For example, I am a scientist and use reasoning and statistical inference every day. One would think this would make me an ideal juror, but the lawyers (both defense and prosecution) always use their peremptory challenges to remove me from the jury pool. Always.

So what chance do you think I would have had to serve on the Merck case?

Joel

|10.28.05 @ 2:08PM|#

I would be honored to be judged (jurored?) by Gwarvaq of Argus 7. *Who the fuck is that?*

|10.28.05 @ 2:13PM|#

In research once, I ran across some statements that originally, trial by jury (in England, where the tradition started) meant truly a trial by peers - those who knew you, and quite possibly some of the facts of the case.

I have never followed up this research, so I can't offer any more insight, but it would be interesting to find out (assuming this is true) why and when the process changed to one where jurors can have essentially no independent knowledge of the parties or the subject matter.

I'd like to see if the costs of the change were worth the perceived benefits...

|10.28.05 @ 2:14PM|#

Whoa! Who got up on the wrong side of the coffin this morning, Mr. Cavanaugh?

Not that I totally disagree. And it's a humorous But I'm not always sure what to do with arguments that start with "People are so fucking stupid...". In general, I try to avoid assuming that people are either more stupid or more evil than myself.

Well, I like to think I try.

|10.28.05 @ 2:37PM|#

Larry:

Sometimes it's good to remember that fully 50% of the population has an IQ lower than 100.

Also, I've met people with IQ of 130 who were completely incapable of applying logic.

The simple truth is - people are, on average, really fucking stupid.

Dave W.|10.28.05 @ 2:42PM|#

Mr. Cavanaugh seems to miss the principle advantage of juries, which is that they are a lot less susceptible to secret lobbying by moneyed interests than oter types of decisionmakers (eg, the congressman-investor, Dick Cheney, the judge, the expert witness).

I have to admit, it would be nice if we could get smarter juries, but if and only if their unique (albeit less-than-perfect) degree of unbribe-ability can be preserved. I am not sure it can.

|10.28.05 @ 2:44PM|#

Really, it all just boils down to the old truism:

A jury is nothing more than 12 people who were to stupid to come up with an excuse to get out of jury duty.

The simple truth is - people are, on average, really fucking stupid.

Depressingly, I have to say I find myself agreeing with the above statement.

|10.28.05 @ 2:44PM|#

Larry,

I agree with your attitude, and I try not to assume stupidity in other people either. But I think Tim was being humorously cranky, and he does have a point.
And Joel gets at what really oughta get us cranky -- that lawyers often intentionally pass over bright people for dumb asses in jury selection.

Larry A|10.28.05 @ 2:46PM|#

There's also the jury process itself. Every time I get called I buy a couple of novels to read while waiting around. The "civic responsibility" lecture runs thin after about the third go-round, and the folks you have left are:

• 19-year-old rookies.
• Folks with absolutely nothing else to do.
• People who are really desperate for their 15 minutes of fame.
• Terminal do-gooders, who are on juries to Make A Difference, regardless of the evidence.

|10.28.05 @ 2:49PM|#

When I was preparing for job interviews, I was told that it is important to be able to explain your research in terms simple enough that someone unfamiliar with the material would be able to at least get the concept. And this seemed to work. However, I read an article (perhaps Slate or MSN.com) indicating that people in general gave more credibility to experts who spoke in incomprehensible technical jargon than those who could clearly explain the situtation. Has anybody else seen such a study?

Despite having a Ph.D. in aeronautics, the attorneys in one civil case slipped up and left me on the jury. Most of my fellow jurors were quite reasonable. However, some of the jurors in these high-profile cases are clearly deflagrating idiots.

|10.28.05 @ 2:56PM|#

quasibill, my understanding is that jurors were truly peers in the old days, even in the U.S. They would personally know the principals and often have some knowledge of the events. In no way were they expected to be insanely ignorant. I never actually researched this, but it was something we talked about a bunch in one of my civil procedure classes in law school. It makes intuitive sense, anyway, considering how immobile pre-industrial society was.

Incidentally, I actually made it on to a 6-person panel in a criminal trial a few weeks ago. I was rather stunned that they empaneled a known lawyer, but there it is. I wasn't particularly appalled by my fellow jurors--they took the case pretty seriously, and I felt that they "got" the burden of proof. A good thing that they did, because the prosecution tried to prove its case by osmosis and innuendo.

|10.28.05 @ 3:00PM|#

I don't blame defense lawyers for trying to put together a jury favorable to their client and a jury full of "smart" people isn't necessarily good for their client. If a defense attorney opts to seek out the smartest jurors as opposed to those who would be the most sympathetic to his client, how does that serve the defendant? Such a lawyer would be in dereliction of his duty to fight for his client, IMO. So it's not like it's the lawyers' fault for picking stupid juries - it's their job.

Dan|10.28.05 @ 3:04PM|#

The only conclusion I can draw from this rather ineffectual rant is that Cavanaugh is a Merck stockholder.

|10.28.05 @ 3:18PM|#

The problem is voir dire. Allowing both sides freebies to eliminate jurors for no reason guarantees only monkeys are left.

|10.28.05 @ 3:30PM|#

Not only monkeys. Predominantly monkeys. My jury duty experience was that if you said anything or had any qualification, you were out of there.

I had a prosecutor try to get me removed from the pool 'for cause' (i.e. they don't have to burn one of their freebies on me by saying I'm incapable of dispassionate analysis) on the grounds that I view the war on drugs skeptically.

The judge called me to approach with counsel and asked what I meant when I answered the drug war question from the prosecutor skeptically. I said I was generally libertarian. He asked if I could consider the whole range of allowable punishments and serve as a fact finder. I responded that I would probably be an above average fact finder and that I could consider a range of punishments. The prosecutor asked for details on the full range of penalties. I said, well, it is certainly my inclination to treat one adult selling a substance to another adult as something much closer to jay-walking than capital murder, but it would be a mistake from that to conclude that I have not considered all possible punishments. I've probably considered them more than anyone else in the jury pool. The judge smiled and made the guy burn one to get me out of there. That was it. Jason strikes back at The Man.

|10.28.05 @ 3:32PM|#

It's not entirely freebies...

If you know anything about the field involved, or the circumstances of the event, or the people, you are booted with cause. In other words, you are eliminated precisely because you are knowledgeable and you'll get in the way of the stories developed by the two sides.

Also responsible for eliminating fair-minded prospects is the advertised requirement in most courts that a juror arrives at a verdict according to the judge's instructions and the law even if she disagrees with them.

|10.28.05 @ 3:33PM|#

"The problem is voir dire. Allowing both sides freebies to eliminate jurors for no reason guarantees only monkeys are left."

Yeah, I came to the same conclusion. It has (had?) a laudable effect in criminal cases - you needed to get the racists, especially the ones who wouldn't admit to it, off the panel in order to have a fair trial - but the costs are starting to outweigh the benefits as outright racism becomes less of a factor.

|10.28.05 @ 3:35PM|#

Juries, on the whole, don't make any more inexplicable decisions than judges, presidents or legislators do. The inexplicable ones you read about, you read about because they're newsworthy. They're newsworthy because they're inexplicable.

The NYT isn't going to run too many front page screamers like "Manhattan Jury Awards $ 4,800 in Broken Ankle Case" or "Breached Sublease Nets Tire Repair Shop $16,782 Plus Costs."

It's just like anything else: it doesn't make headlines unless somebody can find a way to make a Grave Societal Problem or an Alarming New Trend out of it.

|10.28.05 @ 3:57PM|#

So, Jason, what you're saying is that if we want to make a difference but get excused from jury duty anyway, we should try to persuade them that we can be fair, while displaying traits that will make them want us gone. So they have to burn a peremptory.

If I'm ever called I'll try it.

drf|10.28.05 @ 4:07PM|#

As someone who wholly is as stupid as the average, I got dismissed from a jury by trying to help out the defense:
"mommie told me policemen hate black people". and i was sent home without the happy meal they promised.

welll, at least the second half of the story was made up...

|10.28.05 @ 4:17PM|#

thoreau:

It is a sorry display that I was proud of for a day or so. At the end of the day, I was still dismissed. Any libertarian who tells the truth will be dismissed in every case I've seen. The county I live in has a system where you go into the pool for six weeks. Every monday, you have to call and see if the cases have been pled out. If not, you have to sit through a drawing for the pool and then voir dire for the jury. I was in the pool four times and dismissed every time when I answered some question or another in the voir dire part.

Dave W.|10.28.05 @ 4:26PM|#

Jason, lol, good one.

Dan|10.28.05 @ 4:30PM|#

Isn�t the main advantage of the jury system not so much that it�s the best way to determine guilt, innocence, or responsibly but rather because it gives the people a certain amount of power in trials and therefore makes the verdicts in court cases more likely to be accepted by the community at large?

In other words, no matter how much the government thinks you�re guilty, they still have to prove it to 12 disinterested people as opposed to just declaring it. I think that�s well worth having on juries a few people that enlightened Reason subscribers may find to be �stupid�.

|10.28.05 @ 4:47PM|#

I spent several months on the road working, so the mail was really piled up when I returned. There was a letter telling me I had been chosen for jury duty and I had ten days to complete a questionnaire and return it to the courthouse. I flipped the envelope over and saw that I had missed the deadline by a couple weeks. I tossed it in the circular file and hoped that I didn't have to face a jury for the crime of ignoring my civic duty.

|10.28.05 @ 4:52PM|#

"Some people are really effin' stupid. Think of how stupid the average person is. Then consider that some people are even stupider than that."
-George Carlin

Every time someone on a site like this one trumpets "jury nullification," I think of just how moronic some juries are. Think of all those white juries in the fifties who let lynchers off the hook...Emmett Till, anyone?

Still not convinced? I have three words for you:

Orenthal...James...Simpson...

So much for juries as a force for justice...

|10.28.05 @ 5:02PM|#

I think of just how moronic some juries are. Think of all those white juries in the fifties who let lynchers off the hook

Those juries weren't morons--they were evil.

Tim's right. The system is stacked to pretty much guarantee that only ignoramuses will be picked to sit on a jury.

|10.28.05 @ 5:03PM|#

The system works fine, every day. Juries do a fine job most of the time. And sometimes even smart people get to be on them. The "only stupid people servce on juries" meme is a good one for "tort reformers'" purposes. Problem is, it's not true.

|10.28.05 @ 5:14PM|#

Every time someone denounces jury nullification, I think of how -- no matter how stupid they might be -- at least jurors don't face incentives inherent in the system itself to make bad decisions.

Legislators, police, and prosecutors, on the other hand, do find it inherently in their interests to make bad decisions when it comes to the rights of the people.

|10.28.05 @ 5:20PM|#

fully 50% of the population has an IQ lower than 100

Gator, you're kidding with that, right? Funny saying, but that's not how the stats work.

|10.28.05 @ 5:33PM|#

Poco - OK, you are technically correct. A true statement would be 50% of the population has an IQ equal to or less than 100.

Even more scary is the fact that 17% of the population has an IQ lower than 85. That means about 1 out of every 5 people wandering around this country is a complete moron.

brooke|10.28.05 @ 5:51PM|#

I can sort of understand the Michael Jackson jurors who think he's guilty. I just finished sitting on a jury for a criminal case in DC, and we let the guy off on three of the ten charges, not because we thought he wasn't guilty of them, but because the prosecution failed to prove his guilt beyond a reasonable doubt and prove each of the required elements of the crimes.

There's a lot more asked of a jury than just deciding if you think he did it or not.

Also, I'm a libertarian and I told the truth to all the questions asked of me and I got picked anyway--though I doubt I would've been picked if it had been drug related.

All that said, some of my fellow jurors were among the stupidest people I've had occasion to meet.

|10.28.05 @ 6:05PM|#

All that said, some of my fellow jurors were among the stupidest people I've had occasion to meet.

Really? Were they by chance members of the City Council?

|10.28.05 @ 6:06PM|#

Ah, another (implicit) illustration of the sheer stupidity of popular democracy. A libertarian solves some of the problems of living among idiots but worsens others. On the one hand, each man's power of coercion (vote) is drastically reduced, lessening the chance of bad laws deemed worthy by the populace enacted. Try say, explaining why anti-discrimination laws are bad to the public (especially after Sharpton et al. have branded you a racist, Jim Crow et cetera). On the other hand, a libertarian system of government requires responsibility of all full citizens.

Of course, a politician could never address these concerns because he would be branded 'elitist' (what, would you rather be the average dolt?). I think the Founders were wise in that they had property requirements for suffrage. My fantasy would be a voting system where people's votes would be weighted by the taxes they paid in the previous year. It would create huge problems probably, but it's fun to ponder the consequences of such a system.

Richard Epstein in Simple Rules for a Complex World says that much of the ire directed towards lawyers is misplaced. The impetus for all the litigation is overly specific regulations. Here here for a return to common law.

Crocodile, it's a lot higher than 17% in some locales, like say Compton LA or New Orleans before the storm.

|10.28.05 @ 6:08PM|#

Oh, DC is another place with above average stupidity (no, I'm not talking about the White House).

|10.28.05 @ 6:14PM|#

Juries, on the whole, don't make any more inexplicable decisions than judges, presidents or legislators do.

But even if the inexplicable or irrational outcomes comprise even a small minority, don't they still establish legal precedent?

|10.28.05 @ 9:46PM|#

"But even if the inexplicable or irrational outcomes comprise even a small minority, don't they still establish legal precedent?"
No, jury verdicts are not precedent.

|10.29.05 @ 12:41AM|#

a voting system where people's votes would be weighted by the taxes they paid in the previous year

Somehow the thought of Paris Hilton or FiftyCent having more of a say in society just because their millionaires doesn't comfort me.

|10.29.05 @ 6:15AM|#

MikeP,

Every time someone denounces jury nullification, I think of how -- no matter how stupid they might be -- at least jurors don't face incentives inherent in the system itself to make bad decisions.

I'm a believer in jury nullification under some circumstances (like many others here, I think that many of our laws aren't worth 'warm spit'), and if it's not a valid law in my eyes, guilt isn't a question I can decide.

Under our local juror questioning processes, the judge will ask if you feel you might have any reservations upholding your duties. Based on the reaction the only time I was in this situation and my response (as above), the reaction is swift. A quick adjournment to chambers, some talk about dangerous ideas, a lesson from the judge about the harm I might have caused and then I was ushered out. If you ever try this, watch the judge (I was speaking to the prosecutor). I wish I had some way to see the way it all worked out. I've also wondered since then whose challenge I was nailed by or if the judge took it upon himself to toss me.

|10.29.05 @ 9:12AM|#

Actually, Happy Jack, I'd like to live under a rapocracy. Millionaire rappers control everything: Low taxes, no gun laws, no drug laws, totally free speech. Sounds damn close to Libertopia in my book.

|10.29.05 @ 3:29PM|#

Evade,

The one time I got into voir dire my fate was decided in a sidebar of the judge and the two attorneys on the furthest end of the bench. I was not invited to attend, nor was I lectured afterward. Simply excused.

Given that my nullification tendencies came out during questioning by the judge, as well as the way judges in this state write the rules, I presume I was tossed with cause by his honor himself.

|10.29.05 @ 4:19PM|#

Even more scary is the fact that 17% of the population has an IQ lower than 85. That means about 1 out of every 5 people wandering around this country is a complete moron.

Huh? I dont follo u.

|10.29.05 @ 5:35PM|#

If a lawyer or judge ever asked me about nullification, I could go on for hours about the Zenger case, William Penn, FIJA, etc., but if I wanted to serve on the jury I'd clam up about it. I'n willing to enforce any valid law, but I'm not so dumb as to get into an argument with the legal establishment about which laws are valid and which ones ain't. It is telling that lawyers are forbidden to appeal openly for nullification, and judges can claim that juries must follow their instructions on the law, but once you are in the jury room they have no control over you, and can't sanction you for voting "not guilty", actual corruption accepted.

I served on a criminal case once where my fellow jurors kept trying to bring up for discussion certain facts which both sides had stipulated to. When Dummy Juror A would start with I don't believe the policeman when he said X I would have to patiently explain that the defense had admitted that X had happened, but that they had an different explanation than the prosecution for it, and that we had to decide who was telling the truth.

I'm not a lawyer, but I've taken PoliSci classes on law at the undergraduate level, and was a high school debater whose team won a state JV title and was invited to the end of the season national tournaments. Did a bit of it in college before I got bored with it, too. I wonder if, in states where they allow jurors to take notes, they'd let me flowchart the trial next time I'm on a jury? :)

Another time I got tossed from a jury box when a lawyer in a civil personal injury case didn't like my answer about expert testimony. I don't hold osteopaths in as high a regard as I do M.D.s, and I expect he was going to use an O.D.'s testimony to make his case, if not a chiroquackter.

Voir dire is, in many ways, a catch-22. Any citizen who takes his civic duty seriously enough to make himself minimally informed enough to carry out such tasks as voting puts himself in a bad odor with trial lawyers who don't want anyone who reads a newspaper more challenging than the Weekly World News, let alone Reason or much heavier stuff the folks on this board delve into.

Kevin

|10.30.05 @ 2:01AM|#

Regarding the results of the Vioxx suite, I wonder if bringing back the concept of expert juries-at least for civil cases-is a better solution instead of tort reform.
In other words, complicated cases involving esoteric details such as malpractice suits or pharmaceutical trials, a jury would be made up of doctors and scientists, picked equally by the prosecution and the defence. Or there could be a minimum quota set aside for expert jurors to provide some balance to populist tendencies.

Dave W.|10.30.05 @ 3:34AM|#

Legislators, police, and prosecutors, on the other hand, do find it inherently in their interests to make bad decisions when it comes to the rights of the people.

The O.J. jury tried to tell us this, but it was a bad time for this (albeit important) lesson cause the guy really did kill his wife.

|10.30.05 @ 3:41AM|#

Tort reform helps too, but to me, suing Vioxx seems totally unfair in light of the fact that the FDA approved it. Ideally, there should be no FDA and pharmaceuticals would be self-regulatory. Pharmaceuticals would then be under liable with an allowance for negligence instead of strictly liable. Under the current system, pharmaceuticals have to pay hundreds of millions of dollars to get a drug funded, and they can still be slammed with lawsuits regarding the drugs safety. If the government is responsible for the safety of drugs via the FDA, should not the government be sued instead of Merck?

|10.30.05 @ 10:35PM|#

thoreau- I think the word you're looking for is kakistocracy. Remember, rap's top dog could be MC Hammer one year, Vanilla Ice the next. :)

However, this would solve the incumbency problem, as the rappers burn through their fortunes.

The real money machine under this voting system would be Tom Cruise. How would you like Battlefield Earth as part of the fair use doctrine?

|10.31.05 @ 9:08PM|#

Ah. Kakistocracy: rule by the worst.

I remember how, in 1988, I warned against Dukakistocracy.

Kevin