A Stitch in Haste

(Guest-posted previously at Freespace.)

The American Bar Association is proposing a variety of reforms to the jury process, including keeping juror names and addresses confidential, allowing potential jurors to refuse to answer embarrassing questions during voir dire, and permitting jurors to "pre-deliberate" in civil trials before the case has concluded.

The press release revived a silly little meme bouncing around inside my head for a long time now: How about scrapping the whole "jury duty" concept and moving toward full-time, trained, professional jurors?

"Juror" would simply be another job, like "lawyer," "judge" or "court reporter." There would be a basic educational requirement (e.g., a college degree) and a legal credential earned by formal study and examination. Something less than a J.D. but more than a night class at John Jay.

First, would it be constitutional? The Sixth Amendment merely requires "an impartial jury of the State and district wherein the crime shall have been committed" -- doesn't sound like professional jurors would violate that.

Second, would it be affordable? We pay jurors a piddling little amount and professional jurors would cost far more. But what about the entire "jury duty" infrastructure of maintaining potential juror lists, mailing summonses, enforcing summonses, etc.? And how many hung juries would be avoided by keeping off the dumb, the partisan and the overly emotional? And even if it would nominally be more expensive to have well-paid professional jurors, as I blogged previously, since when do we skimp on one of the libertarian "big three" proper functions of government? If we're not going to spend public money on courts, then how can we justify spending it on anything else?

Third, would it be advantageous? I think the answer would almost certainly be yes. Even putting aside the idea of jurors having legal training, just making sure they are literate, educated individuals would certainly lead to better verdicts. Here's how a Canadian lawyer described the current dilemma:

So who does actually sit on juries? Well, you have those not smart enough to figure out how to get out of doing it. And, if they aren't smart enough to figure that out, do you really want them sitting in judgement of a criminal case? Because that is how events like [a] mistrial occur. Then there are the under-employed. They have nothing better to do. Or the aged and retired. While smart enough, most seniors I know would have a great deal of difficulty understanding the technology involved in many trials today such as forensic digital analysis of a computer's hard drive in the search for evidence, which seems to have become an issue in many, if not most, cases these days. Then there's DNA evidence. As demonstrated in the OJ Simpson trial, with a mountain of DNA evidence conclusively demonstrating guilt, the jury simply didn't understand it and were left with Johnnie Cochrane's pithy but ridiculous; "If the glove don't fit..." nonsense.

I have a hard time disagreeing with any of that. A similar article recently discussed the "CSI Effect," in which lay juries are coming to expect "Grissom-like" certitude in cases where science is lacking but other evidence (e.g. credible incriminating testimony) is overwhelming.

What would be the potential drawbacks of professional jurors? The single biggest -- and hardest to quantify -- effect would be a further degree of separation between most people and "The System." Jury duty, like voting, is often trumpeted as one of those rare, wonderful times when "the little guy" has a say and can make a difference. Take that away by establishing professional jurors and our societal sense of "civics" may diminish.

Might justice itself also be compromised by professional jurors? If being a juror is -- yawn -- an occupation, does it therefore lose its solemnity? Would full-time jurors come to grow cynical in their duties, as many seasoned attorneys do? In New York State at least, there is a flip side to mandatory jury duty: an equally mandatory waiting period: once you have served you must wait four years before serving again. There might be some wisdom in such a policy -- having the jury pool fresh and unsullied by a repetitive career of trial after trial.

Overall, a very difficult thought experiment. It would be fascinating to see a jurisdiction, even if another country, implement the idea, even on a trial basis (no pun intended). Perhaps professional jurors would only be used in certain specialized cases such as antitrust or involving expert testimony of some kind.

There's a thick fuzzy line between the current jury system being "imperfect" and being "broken." It's definitely one or the other. Determining which one would help in deciding whether a system of professional jurors is the correct solution.

POST SCRIPT: This piece was in no one way inspired by nor reflective of the Scott Peterson sentencing verdict handed down yesterday. I have been remarkably successful in remaining both ignorant of and apathetic toward that case.

UPDATE #1: NZ Bear chronicles another interesting twist in this debate -- the fact that some segments of the population are effectively excluded wholesale from jury duty, typically on religious grounds. He notes a (very silly) proposal in Ohio that would summarily excuse all Amish from ever being called. A similar opposition is often expressed by Muslims.

The idea of a wholesale religious exemption from jury duty is, of course, utter nonsense -- the Amish should certainly not be required to serve on a jury, but they should be required, like everyone else, to go through the motions of showing up and explaining their objection to serving. The proposed Amish exemption would be a blatant First Amendment violation.

The broader question of how we should select juries generally, however, remains unresolved.

UPDATE #2: Here's another extreme example:

A juror has ended up behind bars. Rachelle Thomas told a judge in Cincinnati last year that she couldn't serve on a jury because she had to take her son to a doctor's appointment. But she had already filled out a juror's questionnaire and wrote she had no children.

Thomas was sentenced to nine days in jail for contempt, but moved to Nevada. This week she returned to Cincinnati to clear up the matter. She pleaded no contest to the contempt charge. Thomas was ordered to complete her jail sentence, perform 200 hours of community service and pay a $250 fine.

Again, is this the kind of person who should be on a jury in the first place?

UPDATE #3: Here's a fun jury pool story, courtesy of Point of Law Forum.

Whoa!

A legal principle which prevents people being tried for the same crime twice is being scrapped in England and Wales.

The ban on "double jeopardy", which has existed for around 800 years, will be consigned to history from Monday.

The Court of Appeal can now quash an acquittal and order a retrial when "new and compelling" evidence is produced. ...The change will apply retrospectively, so someone could face a second trial if evidence such as DNA material, new witnesses or a confession came to light.
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A Home Office spokesman said: "It is important the public should have full confidence in the ability of the criminal justice system to deliver justice. "This can be undermined if it is not possible to convict offenders for very serious crimes where there is strong and viable evidence of their guilt."
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The reforms -- which also allow hearsay evidence to be admissible in court -- come under the new Criminal Justice act.
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However, it will only be possible to retry an acquitted person once.

Do I remember hearing, or reading, Justice Scalia including in his general "foreign law is irrelevant" jurisprudential philosophy an extra-special smackdown to those who claim a heightened persuasiveness to English law as it exists today as opposed to how it existed at the time of the Founding?

While I disagree with his general attitude toward foreign law (see his dissents in Lawrence v. Texas, 539 U.S. 558 (2003), and Roper v. Simmons, No. 03-0633), to the extent he said that, he's dead-on accurate. This is utterly terrifying.

Thank goodness we have the ban on douple jeopardy sanctified by the Fifth Amendment, which never, ever gets ignored -- does it?

I previously noted that the U.K. was abolishing double jeopardy for certain heinous crimes and also scrapping some elements of the hearsay rule.

Now come words that Britain may also eliminate the right to a jury trial in certain "complex" trials:

The measure comes after a judge in March halted proceedings against six men accused of corruption after prosecutors agreed a fair trial was impossible. The trial, which lasted almost two years, may have cost the U.K. as much as 60 million pounds ($109 million), the Financial Times reported at the time.

The government will allow non-jury trials when the prosecution asks for it, the judge on the case agrees and the Lord Chief Justice, the U.K.'s most senior judge, approves, [Britain's attorney general] said. He estimated that the change will affect about 15 to 20 cases a year.

The government rejected a proposal to conduct fraud trials with a panel of experts directed by a judge, after opposition from lawyers...

How depressing that the country that invented the justice system as we understand it today is willing to begin dismantling it for no other reason than because "it's too expensive."

This latest story, coupled with all the recent high-profile acquittals (Michael Jackson, Robert Blake, Richard Scrushy), generated quite a few Google hits to my post on moving to professional jurors, which I wrote after some headlines bemoaning the so-called "CSI Effect" in which jurors expect definitive scientific evidence, and especially DNA evidence, in cases where no "crime lab" work is even warranted.

As I wrote back then:

"Juror" would simply be another job, like "lawyer," "judge" or "court reporter." There would be a basic educational requirement (e.g., a college degree) and a legal credential earned by formal study and examination. Something less than a J.D. but more than a night class at John Jay.

I still consider the whole idea of profesional jurors to be little more than a thought experiment, but if the choice is between professional jurors and no jurors, then I would tend to prefer professional jurors.

Hat tip to CrimLaw.

FUN FACT: The Seventh Amendment's right to a jury trial in civil cases is one of the few provisions of the Bill of Rights that has not been "incorporated" by the Fourteenth Amendment. As a result, states may deny the right to a jury in a civil lawsuit.

UPDATE: Now it appears New Zealand is following suit. (Hat tip to CrimProf.)

I think I've finally found an actual "activist judge" --

A judge's comments in recent months that she would refuse to seat an all-white jury have raised eyebrows at Cook County Criminal Court and questions about whether the judge acted inappropriately.

"Folks, you all know I have a rule; I don't seat all white jurors," Circuit Judge Evelyn Clay said as a jury was being picked to hear a murder trial last month, according to court transcripts.
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Clay, who is African-American, made the remarks in chambers before three separate trials, according to transcripts reviewed by the [Chicago] Tribune.

The interesting thing about the law of juries and race is that the concern is often not only whether the defendant gets a fair trial, but also whether the jury pool specifically (and the community generally) are being denied the right to serve as a juror. See Batson v. Kentucky, 476 U.S. 79 (1986)

Nevertheless, if both litigants are happy with the jury selection process, then I don't see what right the judge has to overlay her own version of non-discrimination (which in this instance is clearly reverse discrimination) onto that process. That seems to me to be a clear denial of due process to the criminal defendant, or to all litigants in a civil jury trial.

Also, the question of whether Judge Clay allows all-black juries is unclear. Or all-male juries, or all-retiree juries or all-high-school-droupout juries. Are the interests of justice also not compromised by such juries?

Other thoughts at Ramblings' Journal, CrimLaw.

Back in December I wrote a piece on whether we should consider moving to a system of professional jurors.

Yesterday, jury specialist Clay Conrad, host of the specialty blawg jurygeek, has a lengthy and thoughtful reponse opposing the idea. Which is fine, because I was merely positing the topic, not arguing strongly in favor of it.

It's a good post, with some good "original intent" background for those who are into that sort of thing. I do feel, however, that Conrad's case is somewhat circular and argumentative (i.e., professional jurors would be bad because they would be professional jurors, which is bad).

I also have a few minor quibbles in the comments section at his blog.

For run-of-the-mill offenses, I'm rather uninterested in the topic. But I do believe that for certain specialized cases, such as antitrust or securities law, the idea of professional juries should not be dismissed out of hand. Perhaps even all civil trials could be heard by professional juries, leaving criminal trials to the traditional lay jury.

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Also, for those more interested in the topic than I, Clay is soliciting for co-bloggers at jurygeek.

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On the topic of jury nullification, I'm against it. The subject has resurfaced in light of a recent Radley Balko column. I refer readers to this response by Patterico (by way of Pejmanesque) and endorse it as my own.

A juror takes an oath to apply the laws faithfully. If she can't do that, then she has no business serving on a jury in the first place. The idea of people swearing false oaths to engage in what really is form of vigilante justice gives me serious pause.

Consider the conscientious objector analogy. Think what you want about those who avoid a draft, but there is no excuse, none whatsoever, for enlisting and then suddenly, while on active duty, saying "I'll serve, but I won't go to Iraq."

(Some might respond that a solidier is not required to obey an unlawful order, but that is not a valid comparsion — a soldier who disobeys a lawful order with which he disagrees still gets court-martialed. That is the better analogy to the juror who reneges on his jury oath.)

Also, if we endorse the idea of juror nullification, then why not endorse the idea of politician nullification? The two most famous (infamous?) examples were not good ones: President and Indian slaughterer Andrew Jackson's famous (supposed) retort to the Supreme Court over what would later be known as the Trail of Tears: "John Marshall has made his decision, now let him enforce it!"

The second was of course Ole Miss and related incidents.

These are not legacies which libertarians should embrace, yet they are the same reasoning behind jury nullification.

I blogged back in April about how Britain had eliminated the protection against being tried twice for the same crime, known as the double jeopardy rule, in some circumstances. In the United States, the protection against double jeopardy for federal offenses is guaranteed by the Fifth Amendment (and incorporated by the Fourteenth Amendment to apply to the states).

Now comes word that the first retrial under Britain's new "no double jeopardy" rule has arisen:

Julie Hogg disappeared from her home and her body was found by her mother behind a bath panel at her daughter's house 80 days after she went missing.

[Billy] Dunlop faced a jury twice over Hogg's murder but each time they failed to reach a verdict and he was formally acquitted in 1991.

Director of Public Prosecutions Ken Macdonald said he had given consent for the case to be referred to the Court of Appeal under a new law because there was "new and compelling evidence."

One of the harder lessons to learn in jurisprudence is that criminal justice is not exclusively, sometimes not even primarily, about convicting the guilty and exonerating the innocent.

The purpose of a criminal trial is most certainly not to "discover the truth." If it were, then we would have no rules of evidence (e.g., the hearsay rule), no testimonial privilege (e.g., attorney-client privilege), no exclusionary rule for evidence obtained from an unlawful search, no "taking the Fifth" and of course no double jeopardy rule. All these protections have one function: to hide the truth.

Moreover, most of these rules tend to benefit the guilty far more than the innocent.

And yet we cherish these protections as part of the bedrock of our free society. Why is that?

I can think of two reasons. First, it is (unfortunately) often better to be more afraid of government and its abuses than of guilty perpetrators of crimes who are released into society. You can generally fight back against criminal misconduct; it is much harder to fight back against police misconduct.

Second is of course the strong preference in criminal law for false negatives rather than false positives (i.e., wrongfully convicting an innocent defendant is not equivalent to wrongfully acquitting an guilty defendant). The latter is always preferable to the former.

How sad that Britain, where much of our American constitutional legacy originates, seems to be losing sight of these bedrock principles of modern Western justice. And how fortunate we are to have many of those protections enshrined in our Constitution (although that is hardly an absolute guarantee anymore).

O.J. Simpson took a brief break from searching for the real killer to critique the American judicial system:

"I still don't get how anyone can be found not guilty of a murder and then be found responsible for it in any way shape or form," Simpson said in a phone interview from his Florida home. "... If you're found not guilty, how can you be found responsible? I'd love to hear how that's not double jeopardy."

Okay:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury; ... nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb...

"Offence" is not the same as "tort," and "life or limb" is not the same as "checkbook." Any questions?

A finding by a jury in a criminal trial of "not guilty" is not the same as a finding of "innocent." You don't need to go to law school to know that -- a few episodes of "Law & Order," or even "Judge Judy," will do just fine.

There are far more interesting questions about double jeopardy than the kindergarten complaint of "criminal versus civil trials." A person can be tried for the same offense in multiple states, or at both the state and federal level. A person can be tried for both a crime and conspiracy to commit that crime. A convicted criminal can be both imprisoned and fined. A person (e.g., in the mafia) can be tried both for committing a crime and for participating in a "continuing criminal enterprise" (i.e., merely being in the "business" of committing crimes).

Double jeopardy is a powerful protection of individual liberty. But it is not a soapbox on which to whine about "miscarriages of justice."

Of course, there was indeed a miscarriage of justice in the O.J. Simpson criminal trial. And O.J. would be better off not reminding people of that.

Instead, he should stick to searching for the real killer...

Just a footnote to my two previous posts that England has had its first travesty cloaked as justice:

William Dunlop, 43, had been tried twice for the 1989 killing of 22-year-old Julie Hogg. Both times juries were unable to reach a verdict. He was formally cleared of the murder, but later a prison officer said that he had lied in court.

The centuries-old "double jeopardy" rule prevents suspects being tried twice for a crime, and is enshrined in the legal codes of many of Britain's former colonies, including the United States.

But under a bill introduced by Prime Minister Tony Blair's government and passed in 2003, a person acquitted of certain serious offenses could face a second trial if compelling new details, such as DNA evidence, become known.

For the record, Dunlop pleaded guilty this time around. Point conceded. But that does not mean that "justice was served."

Given the experience with the ever-expanding reach of the sex offender mania in the U.S., one cannot help but wonder how far and how fast the definition of a "serious" offense will be diluted, or how "compelling" the new details will have to be, for the "unjust" double jeopardy rule to be vitiated.

How would the British phrase it? "Justice is dead, long live justice!"