Trial by judges: trial by jury is a shibboleth we can no longer afford. But there is still a place for vox populi

National Review, May 24, 1993 by Christie Davies

IN ALL THE wringing of hands about race, civil rights, and the relations between police and public occasioned by the Rodney King verdicts, no one has dared to criticize that sacred cow, "trial by jury." No institution competing in the marketplace would ever survive if at its core it had a system of decision-making like this, one which is about as reliable as an examination of the entrails of a ritually sacrificed free-range rooster.

Behind each erroneous conviction there lies a muddled jury of 12 more or less good, supposedly true, men, women, and hobbledehoys. Since most states do not demand any kind of qualification based on property or education, the dullest citizens may sit on a jury. Juries are also erratically skewed by the attempts by prosecution, and even more by defense, lawyers to cross-examine, challenge, and choose individual jurors until they get the jury composition they want, a process made even easier if they can also choose where the trial is held. In so doing they undermine the very rationale of the jury as a random representation of the people at large. The very principle of the random selection of jurors is itself a dubious one for other reasons. No one in his senses would entrust an important decision in his life--where to live, what job to apply for, whether to have an operation, what shares to buy--to a random sample of 12 people, and yet we place our system of criminal justice in their uncertain hands. In some districts, no doubt, the jurors are above average, but in others they are stupid, feckless, illiterate, and felonious in thought and undetected deed. Does it really redress the balance if these same wretched jurors are mugged and raped on their way home by the villains they have just acquitted?

Getting It Wrong

NOT ONLY do jurors wrongly acquit, they also falsely convict, and there are many innocent men and women sitting in jails throughout America because a jury got it wrong. The studies of wrongful imprisonment by Edward Radin, Edwin M. Borchard, Jerome and Barbara Frank, E. S. Gardner, and E. B. Block cite a frightening number of such cases. In addition to the famous instances they discuss, there are many other unknown, not very articulate, wrongly imprisoned individuals whose plight is not going to gain the attention of legal crusaders or those with influence in the mass media. They are alleged rapists who have been set up by vindictive women whose favors they once enjoyed but later spurned. They are small-businessmen done for "serious" fraud who were quite incapable of keeping one set of account books let alone two. They are all unfashionable little people, and no newspaper or television station is going to invest substantial sums of money in investigating their cases. They are all in prison because juries are no shrewder or more experienced than you or I and usually a lot less so.

Should these unfortunates take their case to appeal, they will get nowhere, because appeals courts see their task as being to look for minor and irrelevant errors in legal procedure rather than to re-examine the facts, however flagrantly absurd the jury's verdict may have been. Appeals courts may be barred by the state constitution from considering questions of fact at all, and, even when they are allowed to do so, they are reluctant to declare that the jury got it wrong. Even if in private the appeals judges think that the jurors were dolts, they will not say so, but will scrabble around trying to find a minor procedural error that will allow them to set aside the verdict. The worst position for an innocent defendant to be in is for the trial to be conducted impeccably and for the jury then perversely to convict. The appeals judges are then unable to criticize the trial procedure and will not criticize the jury, so the defendant stays in prison.

The jury is quite unlike all other tribunals, which have to give reasons for their decisions and to show how evidence is linked by logic to produce a conclusion. The jury is an oracle, a secret anonymous conclave swayed by unknown and unknowable prejudices and mental aberrations. Its decisions cannot be criticized or easily overturned because no one has any idea how it arrived at them. For appeals judges to speculate too much on the perceptions and reasoning of jurors would be to rob the jury of its primitive sacred quality. So they have no choice but to hide behind these bookless sibyls or to attack, sometimes unfairly, their judicial colleague's handling of the original trial.

If we are to have a rational method of reaching verdicts in criminal trials that also gives proper scope for appeal, then the jury must be replaced by a small team of experienced professional legal assessors. They would have to provide open, reasoned, and explicit reports saying how and why they reached their verdict.

The jury, however, ought to be retained in some capacity, as it is a part of democracy, a means of involving the ordinary citizen in the making of decisions within the criminal-justice system. The task for which the jury is eminently suited is that of sentencing. Juries should be entrusted with the task of deciding what penalty (within limits laid down by the state legislatures) should be imposed on those convicted by the new tribunals described above. Judge and jury should thus swap places.