Juries are the Last Remnant of Direct Democracy

by Jonathan Wallace jw@bway.net

In my career as a litigator, I had only two jury trials. On the first one, a medical malpractice case, the defense attorney commented of a man I was excusing from the pool: "That's too bad; he's the perfect defense juror: dumb and resentful. The kind of guy who doesn't have anything and doesn't want anyone else to have either."

Sometime in the mid-1980's I was waiting to argue a motion in federal court when the judge took a break in the proceedings to receive a verdict. The foreman reported that the jury had found the defendant, a woman, guilty of harboring a federal fugitive (it was apparently one of those cases of sixties radicals apprehended years after the events.) He then asked to read a statement prepared by the jury and the judge consented.

The foreman said that the jury found the harboring law to be unjust. They did not wish to convict the defendant but felt they had no choice, based on the way the judge explained the law to them. Behind him, several jurors were crying.

Watching this unusual spectacle, I felt very angry. I thought: "You idiots! You're the only ones in this room who are rule-bound. The attorneys on both sides and the judge himself will do anything possible to conform the law to their own inclinations or interests, even when not allowed to do so; while you could not have been challenged for following your conscience."

A verdict of not guilty in a criminal case cannot be appealed. Had the jury acquitted the defendant, they would not have been required to explain themselves, nor could they ever have been held accountable for a "wrong" decision (in the absence of bribery or influence.)

The judge had undoubtedly given them a charge which contained statements along the lines of "If you find A, B and C you must convict." The jury, which had such a miserably mechanical view of its own duty, failed to realize that it was the sovereign in the proceedings--the boss of the judge and the prosecutors.

In 1999, I was called for jury duty, under changed rules which no longer exempted lawyers from serving. I knew the chances were very slim I would be picked--to be excused it is usually enough to be intelligent, even if you don't have a law degree.

On the second day, I was called to be part of the pool of juror candidates for an accident case. I enjoyed watching the two lawyers grilling each candidate about their capacity for fairness, had they ever had an accident, were they related to any truckers or lawyers, etc.

When they got to me, after asking the usual questions, they asked one that hadn't been posed to anyone else. "If the judge directs the jury to do something"--gives that A,B, C then D charge--"and you think he is wrong, will you follow it anyway?"

I thought for a long moment. I had always wanted to serve on a jury, but I knew that if I answered honestly I had no chance of being selected. But I didn't want to lie, so I said, "No."

They question the entire group before excusing anyone, so they went on with other people for a while, then sent us home for the night. The next morning, they excused everyone--I think they may have concluded I poisoned the rest of that pool with my answer.

Some district attorney once famously boasted he could get a grand jury to "indict a ham sandwich" if he wanted. A grand jury that figures out it is the sovereign is known as a "runaway jury" over which the authorities have lost control.

All of these anecdotes pose the question of what the jury is: merely a passive tool, to be stocked with people of limited intelligence, and manipulated by the lawyers and judge, or a sovereign exercise in direct democracy?

I think the tradition is clear that juries were intended to be the latter, from the earliest days of English jurisprudence, but that our prosecutors, judges and lawyers have done everything they can to transform the American jury into the former.

Consider the fact that American juries cannot ask questions during the proceedings and in many states are still not permitted to take notes. Jurors who understand a foreign language in which a witness is testifying are instructed to pay no attention to the testimony but only to the translation. In a case decided this week by New York's highest court, nurses on a jury were barred from using their own special knowledge of medicine to influence the outcome of a case.

Its all reminiscent of the Kurt Vonnegut story in which everyone was physically handicapped to ensure that each of us was no faster, smarter or better-looking than any other.

I think once a jury is selected they should be permitted to bring any knowledge, any judgment, which they possess to the proceedings. If I ever get in trouble, I'd much rather be tried by a smart jury than a dumb one.

Our lives have degraded to the point where most of us only ever get to exercise our political sovereignty in two circumstances: the privacy of the polling booth, where our vote is watered down by the extreme corruption and static of the system, and the jury room, where the impact of our vote, though local, is important and real. Lenny Bruce said, "In the halls of justice, the only justice is in the halls." If jurors entered the courtroom knowing that they are the kings and queens of the system, and that everyone else present works for them, we would have more justice.