The Jury On Trial


Despite the guidance for which eager litigants and their lawyers annually pay jury-selection experts $200 million, the whole process is only a high-stakes game of chance taking, as the Simpson case has shown, an inordinate amount of time. Indeed, sometimes an apparent disqualification turns out to be a badge of hidden worthiness. In a Massachusetts prosecution some years ago for assault with intent to murder, one seat remained to be filled after the defense had expended its final challenge. The man called to occupy it was, as his informational questionnaire disclosed, a police lieutenant. In the “Remarks” section he had written: “I once investigated and prosecuted a case of assault with intent to murder.”

Before the lieutenant could enter the jury box, defense counsel was, understandably, asking the judge to excuse the juror “for cause.” However, because during the usual pre-empanelment routine, the juror had sworn to his impartiality, the judge denied the request.

As the trial went on, the evidence seemed to the judge exceptionally strong, and he silently anticipated a conviction. At the end he did not pick the foreperson (as many judges do) but instead left that choice to the jurors. They selected the lieutenant and returned after only an hour’s deliberation.

“What say you, Mr. Foreman?” the clerk intoned in language unchanged since John Adams’s day. “Is the defendant guilty or not guilty?”

Promptly and loudly the lieutenant replied, “Not guilty.”

After the defendant’s discharge several jurors, including the lieutenant, asked to speak to the judge.

“We were wondering,” said a woman, “why the government brought this case; it seemed pretty weak to us.”

“I’ll second that,” said the lieutenant. “It’s the worst, sloppiest investigation I’ve seen in seventeen years as a police officer. They should be ashamed at having wasted everyone’s time.”

“Well,” said the judge, “cases aren’t always predictable.” And, he might have added, neither are juries—or jurors.

Other factors besides counsel’s use of challenges affect the jury’s ultimate composition. For one, many valuable citizens—the intelligent, solid-thinking sort most desirable as triers of fact—have learned that excuses are not difficult to obtain. Even before the sternest judge, a juror’s coy protestation of inability to decide fairly will always gain release.

One journalist famous for his swipes at the flaws in the local judicial system was called not long ago to jury duty in Massachusetts, where, as in many states, jurors need serve for only one trial or, if not empaneled, for just one day. Less anxious to participate than to criticize, he averred prejudice and thus evaded sitting on a simple, short case involving only the calculation of an injured commuter’s damages. In his column the next day he boasted of his triumph, describing his disqualifying bias as a congenital hatred of railroads.

Sometimes a jury candidate will allege a moral aversion to “judging another human being.” Judges usually honor that ground, at least to the extent of excusing the juror from criminal matters. I am not sure we are right; after all, in many civil cases the jury must determine if the defendant was negligent—that is, whether he failed to act with reasonable care under the circumstances. Deciding whether or not someone was careless seems pretty close to passing judgment on a fellow mortal.

A more legitimate ground for exemption comes from the extraordinary length of time that modern lawyers require for even ordinary litigation. When the case has attracted serious media attention, the problem increases because judges fear—with good reason—that reading lurid newspaper accounts of the evidence (especially evidence the judge has for whatever good reason excluded) or seeing slanted television snippets may taint a juror’s perception of the case as a whole. The remedy of necessity, if not of choice, is jury sequestration, popularly known as “locking up the jurors.” The description does not exaggerate. Sequestered jurors are, in everything but exposure to brutality, inmates of a medium-security prison. They wake and retire on command, they eat their meals at specified times, they may make and receive telephone calls only in limited situations, their access to visitors is tightly restricted, they can watch only approved television programs, and their newspapers have large gaps where the court officers have clipped out stories about the trial. The risks that locking up a jury can pose to the orderly administration of justice (to say nothing of a fair trial) have come vividly to national attention during California’s Simpson extravaganza.