Monday, July 18, 2011

Post No. 170: First We Get Rid of All the Jurors

© 2011, the Institute for Applied Common Sense

Last week, a staff member made a pound cake, and brought it into the office. Although the cake looked fine to us, she said that she became distracted while baking it, and that we might find the bottom a “little crunchy” because she baked it 20 minutes too long.

While we were transforming into Pillsbury Doughboys, Betty Crocker’s Father stopped by. He was serving as a juror on a jury trial at the courthouse down the street, and wanted a piece of his daughter’s cake. She also warned him of the potential crunchiness and the reason for it.

He appeared to enjoy the cake, but insisted that she baked it with the oven rack at the wrong level in her stove. Thinking that he did not hear her say that she baked the cake too long, she mentioned it again.

“I heard you the first time; that doesn’t matter.” he snapped, “What I’m saying is that you need to change the rack level.”

For the overly analytical ones of us here at the Institute, our thoughts instantly went to, “And this guy is serving as a juror?” We all hoped that he was serving on a civil jury, where only money was involved, and not someone’s liberty.

But there were 2 other experiences we had last week which made us further question the ability of criminal defendants to get a fair trial, apart from the efforts of the Nancy Graces of the world to convict them immediately after arrest and before booking is completed.

We previously mentioned our connections to the O.J. trial when the Institute was headquartered in Los Angeles. A friend of the Institute who knew of those connections called us shortly after “Tot Mom” Casey Anthony was acquitted in the death of her daughter, and said that it reminded her of the O.J. trial. The acquittal made her once again question our entire legal system.

She was apparently a fly in the jury room during the deliberations. Shortly thereafter, another tenant in our building asked whether we had heard of Anthony’s acquittal, and then immediately launched into how Anthony’s delay in reporting her daughter missing led her to believe that she was guilty. We suspect that there were enough stale donuts left in the jury room to support multiple flies.

These days, we aren’t quite sure how anyone receives a fair trial, with electronic media spewing sound bites at the speed of light. We seriously doubt that many take the time to digest even 1/100th of the evidence or facts involved, and yet they arrive at a conclusion.

To which they are entitled, no doubt.

We recall a friend once suggesting that because she saw photos of the mayhem inflicted on Nicole Brown Simpson’s body, she knew that O.J. was guilty. And of course, the former head of the International Monetary Fund was guilty, because the rich prey on the poor and consider themselves above the law.

We’re not quite sure whether this is what the Founding Fathers envisioned early on.

But as they often say, “You ain’t seen nothin’ yet.”

For most students of the law, the line between civil and criminal offenses is fairly clear, and there is even a different burden of proof built into our system of jurisprudence. And white collar folks, whether rightly or wrongly, don’t expect to find themselves locked up in a jail cell with “common criminals.”

(We can almost guarantee you that hundreds of our readers across the globe, upon reading the preceding paragraph thought out loud, “But they should!”)

Horse manure is about to hit the fan soon, and the whole notion of innocence until proven guilty is about to be severely tested. Just continue to follow this phone hacking scandal involving News of the World. What prompted us to write this piece was an e-mail alert from the New York Times just a couple of hours ago, entitled, “An Arrest and Scotland Yard Resignation Roil Britain.” Upon reading the e-mail further, it noted that Britain’s most highly ranked police official resigned, and Rebekah Brooks, the former Chief Executive of News International, was arrested.

Over the years, there have been calls in some circles for expert or professional jurors to address some of the imperfections associated with lay jurors. But one of the principles built into the system is that one is entitled to be judged by a jury of his or her peers.

For the sake of the system, and all involved, we sure hope that neither our pound cake crunching retiree, our disillusioned friend in California, our fellow tenant in our building, nor Nancy Grace are on Ms. Brooks’ jury.

She wouldn’t have a chance in hell.

Well, but then again, it could be worse. We could only allow politicians to serve as jurors….

Hmm..., but then they would never reach a verdict.


  1. The jury system is thing about which I have very few concerns. Nothing is perfect, of course, but I think that it works about as well as it possibly could, given human frailty and the often black-and-white worldview that is the milieu of most prospective jurors in their daily lives. "Not Guilty" was the correct sentence in the Anthony trial. It doesn't mean that she's necessarily "innocent" in the eyes of God, but the prosecution just flat out did not have the evidence to convict her. The jury should be applauded for having done the right--even though it was the most difficult--thing.

  2. First of all Rodak, it's good to hear from you again. Since we believe that there are 27 ways to view any issue, we like to have as many of them as possible expressed in our forum. You were a very loyal follower for quite a long time, and we missed your point of view.

    As we often say, we try to avoid expressing the official policy or view of the Institute, choosing rather to raise issues and question the way "things are."

    That being said, the Logistician, now on sabbatical studying at a samba school in Brazil, was a trial litigator for Corporate America for roughly 30 years. He had over 45 jury trials to verdict, as did his former partner, who had ever more. They both claimed that although the system and procedure occasionally yielded some strange results, they believed that it was a good one and usually spot on. They further had the benefit of speaking to hundreds of jurors after rendering their verdicts.

    The Logistician often pointed out that, in his opinion, both the criminal and civil verdicts in the O.J. case were correct. He also used to suggest that the difference in approach which O.J. employed in the trial gave one an indication of who O.J. thought committed the murders.

    Come back regularly. We need you.

  3. I find myself a bit befuddled... as I am in agreement with Rodak on the Anthony trial. I am not so in agreement with the Logistician on the O.J. thing. At least, in that case, you could be sure that a murder had occurred and there was evidence that led to Simpson (Fuhrman may have tried to frame a guilty man, however) as the slayer.

    The Anthony case was all innuendo and suspicion but no evidence linking her directly to the possible crime. A botched case by the state; failure to locate the toddler's body in time, failure to find any evidence of a crime, failure to find any evidence linking the mother to the dumping of the body.

  4. Rodak wrote:

    "...[I]t works about as well as it possibly could, given human frailty and the often black-and-white worldview...."

    We humans can always strive to improve, and those systems which have human components can also always strive to improve.

  5. Welcome back Douglas. You're a valuable contributor.

    This is our official position regarding trials in the news media. Only the judge, the attorneys, and the jurors have first hand access to all of the information and evidence. The rest of us only get bits and pieces filtered and interpreted by the media. While non-participants theoretically have the "right to speculate," to the extent that it influences public behavior against the accused, we should "steer far wide of the danger zone."

  6. ‘Spector,

    Hoo-boy; you have inadvertently stumbled upon one of my “favorite” topics: the American system of jurisprudence.

    I don’t wish to craft a Kaczynski-class manifesto herein, so let me hit some high spots. As you will note, some are pure conjecture – but my instincts often prove right in matters sociological:

     Casey Anthony may well be essentially innocent (at least of murder) if Caylee died accidentally while in her care or the care of a family member. Given that the aforementioned Nancy Graces of America simply cannot wait to further devastate a bereaved parent by piling on charge after gratuitous charge in any reported case of accidental child death, Anthony perhaps thought that a bit of misdirection and obfuscation was in order to keep her from getting locked up for life. Obviously, it worked . . . if not precisely in the way which she intended. Solution: train police investigators and prosecutors to better recognize accidental death and charge accordingly, instead of assuming every case is homicide and “going for the throat”.

     Judges often issue jury “instructions” which lead to a predetermined verdict if obeyed strictly by jurors. American citizens need to be advised that they will be breaking no law and will incur no punishment if they follow their conscience and ignore those oft-flawed instructions while serving in their capacity as jurors. Solution: train jurors in regard to what does and does not constitute contempt of court and other equally ambiguous transgressions of the court which they may not fully understand.

     The “Double Jeopardy” clause of the Fifth Amendment is regularly violated in spirit via the technicality of charging the defendant in a “different court” (Federal versus state, or vice-versa) for essentially the same crime – but rarely is this done if the “right” verdict of “guilty” is obtained in the “first” trial. The first such scenario which brought this to my attention was the Rodney King beating trial. I knew that it was a bad precedent to re-try those cops when I saw it going down (no matter how cockeyed the jury’s verdict was), and I have seen nothing to change my mind since. Solution: craft Federal legislation to make the states and Feds try EVERYBODY this way . . . or choose optionally to try nobody as such. The former would jam-up court systems to the point of gridlock, so of course they would instead choose the latter option – and the integrity of the Fifth Amendment would be restored. Problem solved.

    As to the jury system itself: it may not be perfect, but it beats the hell out of the alternative – essentially the empanelling of a “star chamber” of “professionals” . . . or worse if only one “judge” should sit upon it. May God help us if that ever comes to pass.

    The Independent Cuss

  7. BREAKING NEWS: Hacking whistleblower just found dead:

  8. Whew, you said a lot of stuff here Independent Cuss, which elaborated upon could fill a case or law school text book. You obviously also have an appreciation of many legal issues far greater than that of most citizens.

    We will respond, obliquely, to only one of the issues you raised, and allow others to hopefully address some of the others.

    You wrote: "As to the jury system itself: it may not be perfect, but it beats the hell out of [THE] alternative.... [Emphasis added.]

    Is there only one alternative?

    Is the "star chamber" it?

    Are there tweaks which could be made to the current system to make it fairer?

    Are judicial commissions who are charged with improving the system wasting their time?

    What are the drawbacks to "professional jurors?"

  9. The drawbacks are obvious, they are no longer your "peers." On the other hand, taking "peers" too far can be a problem: felons can only have a jury of felons, for example.

  10. Douglas: You claim that the drawbacks are "obvious." Is that claim based on (1) your personal experience with alternate systems or methods of achieving justice; (2) speculation; (3) the recent experiences of other systems in other countries; or (4) studies or research regarding alternate systems?

    Are "professional jurors" and "jurors who are peers" mutually exclusive concepts? Could we train professional jurors in each "peer group?"

    Has the U.S. ever operated under a jury system dramatically different from what we currently have?

    Is it worth a try to try to improve the system in some fashion, and if you don't buy into any of the suggestions mentioned previously, how would you improve it, if at all?

  11. There is a possibility that Betty Crocker's Father was right, but without knowing what type of Oven or rack level was used I will not speculate on it further.
    German law does not know juries and I do like the idea of people being judged by a jury of their peers. The problems I see with lay jurors are that they are more than likely not trained to look at only the facts and therefore might make decisions based on emotions. Another problem would be the make up of the jury itself. I would not want an all white jury to judge a black defendant or vice versa. The latter goes for professional jurors as well. Other than that, I think there would be a higher risk of corruption with professional jurors.
    For what it's worth, I do not think that white collar criminals should be locked up in a jail cell with common criminals. :-) However a year or two of confinement might not be sufficient motivation for everybody to go turn honest or possibly repay society in doing something good. Same goes of course for the common criminals

  12. You forget I was in the Navy. So, yes, I have been exposed to alternative methods (Captain's Mast and Court Martial).

    Who would train "professional jurors?" How would one maintain the ignorance of the juror which is at the heart of our system? By "ignorance" here, I refer to the need for jurors who have not been overly exposed to media coverage of the case.

  13. ‘Spector,

    Just found this response; Disqus thoughtfully dumped it into my spam box which I rarely check.

    To answer your questions in order:

    You seriously proposed only one alternative (“professional” jurors), and I can think of no others . . . unless you consider “lynch mob” and “vigilantism” to be viable options.

    I think it inevitable that in most cases “professional” jurors would probably morph quickly “star chambers” (see below).

    Sure, there are “tweaks” . . . but many (most?) would compromise the overall integrity of the court system by their implementation. I remember years ago when prosecutors used to routinely complain that they “couldn’t get a case heard on circumstantial evidence”. Now we’ve “tweaked” the system to the point that they try defendants on the flimsiest of circumstantial evidence, and look at how it has impacted our court system. The dockets are jammed, and many defendants are wrongly convicted (or so we later learn). On the other hand, many simply go free because the prosecutor failed to do his or her job. Why? Because it was so easy to take it to trial on weak evidence, but so hard to convince a jury . . . if indeed the case isn’t thrown out on an evidentiary technicality long before it is ever placed in a jury’s hands.

    I’m not so certain that judicial commissions are so much in danger of “wasting their time” as in danger of “destroying the village in order to save it”. Most of the organizations/individuals who demand these changes do so in pursuit of an agenda other than pure justice. If it is only a little bit broke, why fix it . . . and risk screwing it up altogether? I will admit that sentencing is often too light for convicted felons, but on the other hand we now have all sorts of new “crimes” on the books. Perhaps we, the ordinary citizen, will appreciate that light sentencing when we are busted for some idiotic zoning infraction . . . or for telling an TSA screener to go to hell.

    The drawbacks to professional jurors should be obvious, as previously noted by Douglas. They will quickly be bribed and corrupted, or perhaps carefully maneuvered into their positions by special interests with agendas beyond justice. Moreover, they may have axes to grind of their own. How would you keep The Cookie Lady’s daddy from becoming a pro juror? Positions of power seem to attract people who enjoy abusing it. You jokingly referred to “only allowing politicians to serve as jurors”; well, that is what you would have with a professional juror system . . . but I assure you that they would find no difficulty in reaching a verdict. Unfortunately.

    The Independent Cuss

  14. Douglas:

    Bertrand Russell purportedly said, "It has been said that man is a rational animal. All my life I have been searching for evidence to support this."

    Obviously, if Russell were alive to today, he would include women, or perhaps he did not for a reason.

    All of the Fellows connected with the Institute spent some time in the military. Upon discussing justice in the military, we all felt that it was a better system that the system using civilians.

    Captain's Mast is an extraordinary procedure for extraordinary situations and not applicable to the typical situation. Discipline and not questioning authority are essential to the management of soldiers.

    We'd rather have 12 military folks on our jury any day rather 12 citizens who have never been in the military.

    As for professional jurors, we would train them and ask them to adhere to an oath and principles similar to the manner in which we select judges. Are they totally immune from bias and prejudice based on their personal experiences? Of course not; but at least it would be an effort to improve the system. We have to try new ways to improve systems in our country, even if we do it on a local, pilot program basis, we need to get beyond just doing things the way they have always been done.

  15. Bertrand Russell purportedly said, "It has been said that man is a rational animal. All my life I have been searching for evidence to support this."

    Obviously, if Russell were alive to today, he would include women, or perhaps he did not for a reason.

    Within the context of his times, he could have either considered "man" as all encompassing or just ignored women.

    All of the Fellows connected with the Institute spent some time in the military. Upon discussing justice in the military, we all felt that it was a better system that the system using civilians.

    I would disagree. It seemed a bit capricious much of the time. I got the distinct feeling that the premise was "guilty until we fail to prove otherwise." And, of course, there are a few famous cases one might review (One such would be Captain McVay of the U.S.S. Indianapolis).

    Captain's Mast is an extraordinary procedure for extraordinary situations and not applicable to the typical situation.

    On the contrary, Captain's mast was the norm. It was held almost monthly on my ship.

    We'd rather have 12 military folks on our jury any day rather 12 citizens who have never been in the military.

    To me, that would depend upon the charges.

    As for professional jurors, we would train them and ask them to adhere to an oath and principles similar to the manner in which we select judges.

    I would ask again... Trained by whom?

    No one is totally immune to biases, most people are blithely unaware that they harbor many, thinking they are modern, progressive, and enlightened.* It is the ability to set aside those biases when necessary that is important. I don't think people can be reliably trained to do so but that is just my opinion.

    We have to try new ways to improve systems in our country, even if we do it on a local, pilot program basis, we need to get beyond just doing things the way they have always been done.

    Is it really broke? If not then let's not try to fix it. I admit to having harbored similar thoughts about our jury system at times in my life but then found myself rejecting those thoughts after examining the cases which triggered my distrust.

    *I could tell you the story of a young man from Alabama whose racial prejudice was very strong and who defended it with fervor. But I am sure you have met any number of his brethren.

  16. Douglas:

    Where was your ship situated when those Captain's Masts were conducted?

  17. Douglas wrote: "Is it really broke?" I doubt that very few people actually know the extent, since we rarely go back and examine jury verdicts. We move on to the next criminal defendant. That alone would suggest that we keep trying to prove it.

    What is the degree of accuracy Douglas? 15%, 49%, 78%, or 90%, and what is that based on? We don't really know.

    However, we clearly know that there are ways that it can be improved. Look at the death row defendants exonerated by the Innocence Project. We think that they would have a different view on the issue.

    Additionally, just ask Jennifer Thompson-Cannino and Ronald Cotton about their view on whether the system can be improved.

  18. Let's see... Long Beach, San Diego, Subic Bay, somewhere in the Pacific Ocean, and the Gulf of Tonkin. Captain's Mast is a simple procedure: The captain hears the charges and renders a punishment. There are no issues of guilt or innocence since it is assumed you committed whatever infraction you were charged with.

  19. I agree that it is not perfect and that mistakes are made; some with dreadful consequences. Often these mistakes are made because of prejudices and biases on the part of the authorities, the jurors, and the officers of the court.

    This is why I ask... "Trained by whom?" The system is not at fault, human nature is. I have yet to hear of a justice system that is free of human influence. Should we have computers determine guilt and innocence? But then who would program the computers?

    The Anthony case would have clearly resulted in a Not Guilty verdict if an absolutely unbiased entity sat in judgment. I am not so sure that the Simpson case would have.

  20. In the legal world, a Captain's mast is an extraordinary procedure, in the same way that an ex parte appearance before a judge is one.

    Examining the Uniform Code of Military Justice, and particularly the section on Non-Judicial Punishment, reveals a scheme to deal with minor discipline problems to maintain discipline and order amongst the troops. It is not intended to replace those types of offenses where the jury is used in the civilian world. Additionally, there are lots of fines, penalties, etc. in the civilian world which are more administrative in nature, which are more comparable to Captain's Mast.

  21. Douglas wrote: "The system is not at fault, human nature is."

    We can not respond to that. You've said it all there.

  22. Clearly, I was not using that definition. That clarifies what you meant. A difference might be that in a civilian court, you can always be represented by an attorney (even for misdemeanors), at Captain's Mast, you are on your own (and it is best to keep your mouth shut).

  23. Let me ask you a serious question: Do you think human beings could devise a system that eliminates human nature as a factor?

  24. Douglas:

    You know that it is the policy of the Institute not to express our personal opinions about subject matter discussed on this blog. We just want to stimulate thought and explore alternative ways of viewing issues - everyday.

    That being said, we will respond to your serious question by posing a serious question: Just because human nature is a factor, and unpredictable, does that mean that we should make no effort to improve systems which contain humans, or that we should make no effort to improve ourselves as humans?

  25. No, we should strive to do both. However, we should not expect to overcome human nature. Nothing can be made foolproof.

  26. Dougals:

    Please direct us to the sentence in this post, or in the comment stream, where anyone suggested that human nature can be overcome, or that any system could be made foolproof.

  27. If you feel that engaging in such inferences positively advances your personal or societal interests, so be it. It, like speculation and innuendo, are practices in which we prefer not to engage. But then again, everyone is entitled to think in whatever fashion they want in life, and welcoming folks with divergent views and approaches to life is consistent with our goal of viewing issues from as many perspectives as possible. It's all valuable.

  28. Sometimes I wonder whether you are a motivational speaker or a confrontational one. But we all have to be true to ourselves, don't we?

  29. I vote that we all move on to another topic. 'Spector already has a current one "in the hopper" with only one comment (by guess whom) as of this posting . . .

    The Independent Cuss

  30. There is a very interesting program which will air at 11:40 am EDST today on CSpan2 Book TV. It explores how we construct beliefs and convert them into truths, particularly in connection with religion and conspiracy theories.


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