The recent conversion of the American criminal justice system into a feeding ground for journalists has thrown a weird light on one of the most traditional and archaic of American institutions--the jury. From Rodney King to O.J. Simpson, every new highly publicized case is scanned for "lessons" about that quaint American custom of entrusting our most important decisions to 12 laypeople picked at random from the community.
One of the first popular books on the quaint custom (and almost certainly not the last) is Stephen J. Adler's breezily written The Jury: Trial and Error in the American Courtroom--now in paperback with a souped-up subtitle. Adler begins by retelling the following anecdote:
"Wyoming's most famous lawyer, Gerry Spence, tells the story of a woman named Maude who was on trial for pistol-whipping a man named Benny. It seems that Maude had a powerful motive: Benny had sewn up the mouth of Maude's horse, which had taken a liking to Benny's hay. The judge in the case sternly instructed the jury that a person couldn't take the law into his or her own hands. But the jury acquitted Maude nonetheless. Afterward, recounts Spence, who prosecuted the case, the jury foreman explained: 'The judge trusted us to do justice....That judge knew we wouldn't go along with all that legal horseshit he was readin' us.'"
Adler, the legal editor of the Wall Street Journal, believes that Maude's case is "quintessentially American": "It shows the little guy speaking for all of us, justice handed up from the community, not down from some gilded hilltop legislature. It illustrates how a jury, told what the written law is, can nonetheless disregard it when circumstances require. It celebrates justice that's particular to the facts and to the individual. And it displays the jury as more powerful than the high-and- mighty judge (whose legal instructions are ignored) and the imposing prosecutor (who has brought the charges and sought the conviction). Finally it reminds us that jury duty can open our eyes, make us citizens who recognize 'all that legal horseshit' when we see it."
Despite this celebration of what he calls an "idealized" jury, Adler's message is dire. After speaking to jurors, lawyers, and others, and after investigating several trials in depth, Adler thinks the jury is in crisis.
Adler believes in the "concept" of the jury, which he praises as "uplifting, energizing, and empowering." He recognizes the jury's value as a check on arbitrary governmental power, as a symbol of the community's moral authority, and as an embodiment of the superior wisdom of ordinary citizens. He is even--as his approval of the Maude case shows--surprisingly sympathetic to "nullification"--the fabled power of a jury to disregard legal rules in favor of a just result.
But while the idea is noble, the reality is awful. "What," Adler asks himself near the beginning of his book, "was the good of a system that produced the shoddy--and sometimes patently stupid--verdicts that frequently resulted?" The answer is harsh. "A jury system that works as badly as this book shows it does simply shouldn't, and won't, survive."
Not, that is, unless it is substantially reformed. And to support his case for reform, Adler dissects five actual jury trials, three civil and two criminal. Each case has been selected to illustrate some defect in the current system, such as the use of sophisticated jury selection techniques or the inadequacy of lay juries to resolve complex civil litigation. The failures of the jury system in these five "bad" cases are compared to its success in a sixth "good" case, involving a Texas jury that sentenced a defendant to death.
The two criminal "disappointments" summarized are acquittals--the first of Imelda Marcos and Adnan Khashoggi on various federal charges, and the second of a New Jersey policeman accused of murdering his ex-wife's lover. According to Adler, each case reveals a flaw in the jury system that robbed the prosecution of deserved victory.
In Adler's version of the Marcos-Khashoggi trial, the flaw was the peremptory challenge, the right of lawyers on both sides to eliminate a specified number of potential jurors without giving a reason. The government alleged that Marcos and Khashoggi laundered through American banks money stolen from the Filipino people during the presidency of Marcos's late husband, Ferdinand Marcos. The evidence required the jury to follow a complex series of financial transactions, and only made sense against the background of recent Philippine history.
With this in mind, the defendants' attorneys, James Linn and the same Gerry Spence that Alder began his book with, carefully purged the jury of the well educated and the well informed. Eliminated were those jurors who could understand the government's long, complicated tale of financial chicanery. Gone were those who would have appreciated the political importance of prosecuting the surviving Marcos. The jurors remaining were subway motormen, teacher's aides, and postal workers, some of whom had never heard of Ferdinand Marcos, let alone Adnan Khashoggi.
Because Spence and Linn, or their associates, were later willing to tell Adler why they struck particular jurors, Adler sheds valuable light on the use of peremptories in a criminal case. Both lawyers relied on stereotypes. Linn liked black jurors because they distrust the government. Spence had a special fondness for fat jurors. Sparks flew on the question of Jewish jurors: Linn, representing Khashoggi, thought they would lack sympathy for an Arab arms dealer; Spence thought they were as antigovernment as blacks.
Two jurors were chosen by Spence for their obnoxious personalities; Spence saw them as good "hangers," jurors whose contentiousness would forestall a unanimous verdict of guilty. Spence picked a juror related to the victim of an unsolved homicide because he predicted, correctly as it turned out, that the juror would resent the effort devoted to prosecuting a high-profile white collar crime while murderers walk free. A juror originally from the Caribbean was picked on the theory, again correct, that he would view third-world corruption with worldly cynicism.
This strategy worked almost to perfection. The jury was bored by the government's long, complicated case, intrigued by Spence's opening portrait of his client as an innocent victim, bamboozled by Marcos's teary demeanor. When it came time to deliberate ten jurors favored acquittal and the only two holdouts for conviction were Spence's "hangers." The deadlock broke when a juror mentioned having learned from a coworker that the trial judge, ruling on a motion to dismiss the case, had wondered out loud why a case stemming from misdeeds in the Philippines should be tried in the United States. That did it. (The judge, of course, had heard the prosecutors' explanation and then denied the motion.) After the acquittal, Marcos entertained the jurors at a gala victory party.
Adler, who bitterly criticizes the jury's deliberations as "one-sided," believes the case demonstrates why peremptories should be abolished. He makes several points about peremptories that may have some merit, but the keystone of his argument is that Marcos and Khashoggi should have and would have been convicted by a jury picked at random from the community. Here he's not persuasive.
What emerges even from Adler's own account is that the government failed to answer the one question at the heart of any criminal case: "Why are we here?" If Imelda Marcos stole her fortune from the Filipino people, in the Philippines, why was she not simply extradited to the Philippines and tried there? Reasonable jurors could conclude that prosecutors who left that question unanswered deserved to lose.
It is unfortunate that the jury learned of the trial judge's musings on the motion to dismiss. But this event does not reveal a flaw in the jury system as a system. The system takes extraordinary measures to insulate the jury from extraneous and irrelevant information. In the Marcos case the usual veil of secrecy was pierced, but this fact was hardly decisive: the jury was already leaning, by a ten-to-two margin, toward acquittal. The news that the judge was wondering about venue fell upon receptive ears.
Nor is it as certain as Adler thinks that the result would have been any different had better-educated upper-middle-class jurors sat on the Marcos-Khashoggi jury. The defense attorneys can hardly be blamed for selecting jurors who were unaware of the recent publicity about the Marcoses, which was extremely negative. But would jurors more familiar with recent Philippine history have been more receptive to the government's case?
The United States was prosecuting the wife of a brutal dictator who had governed the Philippines for over 20 years. That dictator had been treated for all but the last few of those years as a loyal ally. A shift in the political winds, the winding down of the cold war, and a growing consciousness of his enormities had all contributed to his downfall.
The prosecution of Marcos and Khashoggi smacked of politics. The government was stuck with a complainant--itself--that came to court with unclean hands. In the eyes of the jury, it had sewn up the mouth of a horse for eating oats.
The Marcos-Khashoggi verdict may or may not be a "disappointment." But it does serve as an example of what Adler himself believes to be the crowning virtue of the jury system: nullification. Like those Wyoming frontiersmen, the Manhattan straphangers on the Marcos-Khashoggi jury disregarded the written law and rejected "legal horseshit."
Whether you favor nullification in any particular instance will always depend upon your view of the legal rule being nullified. Where, for example, nullification allows a southern jury to acquit a Klansman of the murder of a black civil rights worker, most of us will think nullification is an evil. In the case of Imelda Marcos, nullification might have been, on balance, a good thing; Adler doesn't think so. Prosecuting attorneys like juries that convict insane defendants; defense attorneys like juries that acquit the murderers of drug dealers and rapists. A jury hasn't gone too far if it's gone in your direction.
But whether nullifying verdicts are "stupid" or "wise," they're inherent in the jury system and no reform can eliminate them. And judges also nullify. Adler's account of the Marcos-Khashoggi trial, therefore, while fascinating reading, ends up proving that juries will be juries.
The second criminal acquittal that Adler finds disappointing is perhaps slightly more typical of the workings of the criminal justice system, and raises a somewhat more troubling issue. Kevin Schneider, a Newark, New Jersey, narcotics detective, was accused of murdering his ex-wife's lover, Fabio Hernandez. The only eyewitness to the killing was Schneider's ex-wife, Marisol Schneider.
Adler believes that this case demonstrates that jurors have great difficulty in determining who is telling the truth. He is, of course, right.
The prosecution's witness, Marisol Schneider, gave the following account. Her ex-husband, Kevin Schneider, barged into her house as she was opening her front door. He was violating a protective order. He told her that he was looking for bank records but he seemed to be searching for a person. At some point he said he was going to the bathroom on the second floor and charged up the stairs.
Marisol followed Kevin upstairs. Fabio Hernandez was asleep, face down, in the bed the Schneiders once shared. Kevin drew his service revolver and struck Hernandez in the head with the butt, not once but several times. Hernandez, bleeding from his head wounds, staggered into another room. Kevin followed. As Marisol tried vainly to stop him Kevin said something about defending himself from a burglar. He then calmly shot Hernandez as Hernandez was leaning over to put on his pants.
Kevin's account differed from Marisol's as day from night. Kevin was let into the house by Marisol. He was looking for bank records. He originally went upstairs to the bathroom but then decided to try to find the bank records in the sunroom. On his way to the sunroom Hernandez punched him in the eye. Hernandez tried to get Kevin's gun. Kevin struggled with him, hitting him several times in the head with the gun. Marisol joined the struggle. As all three wrestled about, the gun went off accidentally, killing Hernandez.
One event, two stories. Adler interviewed the jurors and discovered that for several reasons they did not believe Marisol. They were upset by her calm, unemotional demeanor on the witness stand. They thought she seemed too plain and dowdy to inspire passionate revenge. She spoke in an overly formal and "hypercorrect" fashion that made her seem "snobby" and "unlikable." Cross-examination brought out past relationships that some jurors considered wanton. On the other hand, Kevin, the seasoned narcotics detective, veteran of 200 trials, looked the jurors in the eye and, with an expression of dignified sadness, told his side of the story. Despite the manifest improbability of this story, the jury believed Kevin.
Adler is honest enough to acknowledge that more than mere likability figured into the jury's verdict. It turned out that Marisol had often let Kevin visit, despite the protective order. She had continued the relationship when it suited her, even using Kevin's name to make business deals. Adler is willing to acknowledge that Marisol probably let Kevin into the house voluntarily on the day of the killing, despite her account of him bursting into the house.
It is an old adage in the criminal courts that if you seek justice you should tell the truth. In all likelihood neither side was telling the whole truth. In such a case, a jury instructed to find the defendant guilty only if so proven beyond a reasonable doubt need not be ashamed to acquit.
Nevertheless, Adler does raise some real and troubling questions. This reviewer, a public defender, can attest that juries do often focus on the wrong "cues" or "signals" to determine whether a witness is telling the truth. Adler points, for example, to research showing that many "modestly educated" witnesses use "hypercorrect" speech because they are nervous in an unfamiliar and intensely formal setting. Although those witnesses may be telling the truth, observers will consistently rate them as less truthful and competent.
Unfortunately for defendants, particularly poor defendants, their witnesses tend to be Marisols and the prosecution's tend to be Kevins. In the usual criminal case, officers who have testified hundreds of times face defense witnesses (if any) who are less educated, less familiar with a courtroom, and less likely to convince anyone even when they are telling the gospel truth. This imbalance is one reason why criminal defense attorneys are often reluctant to put on defense witnesses. It is an imbalance that probably has sent many innocent people to the penitentiary.
But until research shows that trial judges are better at judging credibility than lay juries, the problem of witness credibility cannot easily be laid at the feet of the jury system. Someone has to determine who is telling the truth. Adler raises an interesting issue, but like many common criticisms of the legal system it has nothing to do with juries.
It is odd, to say the least, that Adler chooses a Texas death-penalty case as his counterexample of a "wise" verdict. The defendant, Mark Robertson, was convicted of murdering two people, 81-year-old Edna Brau and her grandson Sean. He then drove Brau's Cadillac to Las Vegas. At the second, or penalty, phase of his trial, the jury heard that he had killed a 7-Eleven clerk, ten days before the other two. To counterbalance these heinous acts, the defense attorneys presented a compelling picture of Mark's tortured childhood, abusive father, and serious drug problem.
Adler may believe that his account shows an intelligent jury reaching the right verdict after carefully considering, but rejecting, an extremely far-fetched theory of mitigation. A more plausible view, however, is of a small minority of jurors hostile to the death penalty being slowly bullied into a death verdict by a prodeath majority. The jury instructions, which Adler tellingly compares to an "executioner's hood," told the jury to decide not whether the defendant would live or die, but only whether there was a probability that the defendant would commit future violent acts that would make him a continuing threat to society. In fact, one of the last holdouts for life was won over by the argument that she would be addressing only the question of the defendant's future dangerousness, thus leaving "the consequences to others in the legal process." The case is a good illustration of why Texas executes more defendants, both in absolute numbers and per capita, than any other state. It is not an advertisement for the jury system.
Even though Adler's analysis of these three cases is flawed, he does propose a number of interesting reforms. The first would change the way jurors are selected and impaneled. In order to secure more representative juries, Adler proposes several changes--the elimination of professional exemptions, "one day" jury service, rigorous enforcement of jury summonses, and selection of jury panels from more diverse sources--none very controversial. Indeed, several of the reforms have already been enacted in many jurisdictions, including Illinois. (For example, in Illinois, juror pools have recently been expanded to include not only registered voters but also holders of driver's licenses.)
But Adler's favorite reform is clearly the elimination of peremptory challenges, which he believes have been "undermining the integrity of the jury system for a long time." Adler believes, among other things, that peremptories allow lawyers to eliminate jurors because of their race or sex and that they encourage the use of expensive juror consultants.
What Adler does not seem to realize is that these two arguments are in conflict. Ethnic or racial stereotypes become important to lawyers when they lack other, more detailed sources of information. The use of jury consultants and other "scientific" methods of analysis (as Adler's own account of their use in a civil case makes clear) tends to diminish the importance of ethnic stereotypes. If stereotyping by criminal defense lawyers is a problem then greater access to "scientific" information about jury composition may be one solution.
Another solution to this problem has existed for a long time. The name for this subtle technique of providing lawyers with detailed information about juror attitudes, while at the same time educating jurors as to their own responsibilities, is "attorney voir dire." By questioning jurors about their biases, their understanding of legal concepts, and their life experiences, lawyers for both sides can more intelligently exercise their peremptories without using ethnic stereotypes at all.
Paradoxically, attorney voir dire is usually one of the first targets of jury reformers. In the federal courts and in Illinois criminal courts it has been virtually eliminated. Indeed, in Illinois the situation is particularly invidious: civil litigants are routinely allowed attorney voir dire, while criminal defendants (and prosecutors) are just as routinely denied it. A better solution to the "problem" of peremptories would not be to eliminate them but to provide both sides with the tools needed to exercise them intelligently.
A second virtue of attorney voir dire is that it helps create a better educated and more intelligent jury. And Adler's second set of reforms also aims toward that end. He proposes (1) preinstructing the jurors on important issues before trial, (2) giving them the opportunity to ask questions of witnesses, and (3) providing them with better closing instructions.
Adler is persuasive on all three points, even the second. Adler explains that jurors' questions could be screened by the judge and the lawyers outside the jury's presence, and then asked by the judge of the witnesses. For a criminal practitioner, jury questions would shed valuable light on the jury's concerns before it begins to deliberate.
Even more helpful would be better jury instructions. Adler is wise enough to know that jury instructions that are more understandable will be longer, more detailed, and may involve considerable repetition of key points. In one example that he cites, an Arizona trial judge provided the jury with a 19-page booklet before the trial even began. Good instructions may also involve very specific discussion of the evidence. For example, in the Arizona case the trial judge instructed the jury that stress diminishes a witness's ability to perceive accurately and that cross-racial identifications are often mistaken. Properly instructed, the jury acquitted.
But each of Adler's suggestions would make a good system better; none is needed to save it. The only real problem with juries is that they cost more money, and in high-volume courts there is tremendous pressure to cut costs. Adler's book was inspired, he acknowledges, by the Rodney King debacle and other recent, highly publicized cases. But these--least of all the most publicized--do not typify the system as it grinds on, day in and day out, for the vast majority of criminal defendants. Particularly in major metropolitan areas, typical jury trials are conducted at lightning speed, with very few instructions and, often, no attorney questions of prospective jurors. In addition, criminal defendants are commonly (and illegally) "taxed" with stiffer sentences when they lose a trial by jury. No one will ever provide all criminal defendants, least of all the indigent, with the kind of jury trial accorded a certain high-profile defendant in California. But between the lines of Adler's book is an argument for why we at least ought to try to do a little better.
The Jury: Trial and Error in the American Courtroom by Stephen J. Adler, Times Books, $25.
The Jury: Disorder in the Courts by Steven J. Adler, Doubleday, $12.95 (paper).
Art accompanying story in printed newspaper (not available in this archive): illustration/Steven Gillig.