Antitrust

Juries on Trial

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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.

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.

In another, an accident victim cashes in for a small fortune although "any objective look" would have found his case factually defective. Another injury claimant with a stronger but still shaky case obtains a record damage award, which later juror interviews reveal to be flagrantly unconnected to the legal rules that are supposed to govern such calculations. ("We were flying by the seat of our pants," one juror says. "It was ridiculous to determine damages without any guidelines…we had no clue.")

Adler describes a numbingly complex antitrust suit between two cigarette companies that lasts seven months and eats up a collective five years of jurors' lives but ends in an "illogical" verdict after they are "given next to no help in their effort to decide the case sensibly." Later they freely admit that central concepts in the case remained mysteries to them; one juror had regularly nodded off during the arguments, while another "daydreamed about home or rated the witnesses and lawyers on their looks and demeanor."

Such examples might seem to bear out some observers' worst fear (and others' hope) about the jury system, that it represents what Abramson calls "the rule of emotion over reason, prejudice over principle, whim over written law." Not all of Adler's material need be seen in precisely that light, however. At least in the case of the two acquittals, those of Imelda Marcos and the cop in the love triangle, jurors may simply have decided that the law as written was too harsh, and decided to suspend it. The right to engage in such "nullification," as Abramson shows, had respectable historical roots but was largely suppressed over the course of the 19th century—as an explicit matter, at least.

The fact is that juries continue to nullify anyway, instructions or no, since in practice they get the last word on acquittals. Interestingly, Abramson argues for restoring an explicit right of nullification, a position more often associated with Rocky Mountain libertarians than with Eastern academics with civil-rights-movement sympathies. He properly emphasizes that any such right must operate in only one direction, "only to acquit, never to convict," it really being tyrannical to allow the punishment of actions which were lawful when taken.

And he acknowledges that part of the danger of an open nullification power is that racially polarized juries may (even more than they do now) let off wrongdoers who commit crimes in the "right" racial direction. Some other civil rights advocates have opposed nullification for this reason. Two states, incidentally—Maryland and Indiana—have recognized nullification all along; it is hard to see them as representing either a Utopia or a dystopia in criminal law.

The acquit-but-not-convict principle points up a wider truth about juries, and a reason why the case in their (partial) defense can rest on more than Adler's suggested leap of faith. Juries are at their strongest when they act as a curb on government power, protecting defendants from corrupt, fanatical, or simply careless judges or prosecutors. Like other governmental bodies, they pose a danger to liberty when they are tempted to assert affirmative power, as when they extend legal liability into new areas or try to set the level of damages.

In short, they make a useful brake—which is no excuse to turn them into an accelerator.