We Can Fix
the Jury System

All too often justice is the last thing being done

From "GUILTY: THE COLLAPSE OF CRIMINAL JUSTICE"
JUDGE HAROLD J. ROTHWAX

          WHILE PRESIDING over a robbery trial, I noticed a female juror with her eyes closed. A crucial witness was testifying. At the recess I asked the juror if she'd been sleeping.
          She shrugged.
          I explained to her how important it was for her to hear all the evidence. She told me that she didn't have to listen to every word, adding -- to my astonishment -- that she could tell if someone was lying or not by the way he moved his eyebrows.
          Fortunately this exchange occurred before the jury began to deliberate, and I was able to discharge her. But every time I seat a jury, I fear that at least one juror will not follow the rules of law. This can be a disaster. In New York, where I serve, if a juror is dismissed after deliberations have started, he or she cannot be replaced by an alternate without the consent of the defendant, and a mistrial is likely to ensue. I got lucky when I caught this woman in time.
          The jewel of the American criminal justice system is supposed to be the jury -- 12 fair-minded people standing between the might of the government and an accused individual. But privately many lawyers and judges acknowledge today that a trial before a jury is often a roll of the dice, with all the randomness and uncertainty that implies. They see juries acquitting obviously guilty defendants -- like the police in the Rodney King trial -- and unable to reach a verdict in even the most overwhelming cases -- like that of the Menendez brothers.
          Not every judicial system uses a citizen jury. Japan had a jury system but dropped it. Germany, France and most of the rest of Europe rely on small panels of professional judges for less serious crimes.
          England, which has a jury system, is plagued by the same problems we face here in America. During a l994 murder trial that took place in the town of Hove, four jurors consulted a Ouija board to "contact" the murder victim, and were persuaded by it to render a guilty verdict. The conviction was reversed on appeal, and the defendant had to be retried. He was convicted again this time in the conventional manner.
          From what I see in my courtroom every day, many American juries might as well be using Quija boards too. Here are my suggestions for fixing the system:
          Share the Duty. In the last week of July 1995, only ten percent of jurors summoned to appear in one New York criminal court actually showed up. Based on my experience, that's pretty typical. As a result, a number of felony cases that were ready to proceed that week could not go forward.
          What happens to the no-shows? Frequently nothing. Jury expert G. Thomas Munsterman has said that in many jurisdictions the only way to be caught ignoring a jury notice is to "tell the court what it can do with the summons."
          Of the small number of jurors who do appear, an increasingly large number seek to be excused. Judges hesitate to deny these requests, since reluctant jurors often cause problems during a trial.
          In other cases, interest groups have used political clout to get their members exempted from duty. Many states exempt whole professions, such as doctors, lawyers and the clergy.
          Some states, including New York, have done away with these automatic exemptions. This will expand the available jury pool, but only if there are penalties for not serving when called.
          Forbid Handpicked Juries. Defense attorneys with guilty clients look for gullible, suggestible jurors who will not be able to clearly evaluate the evidence. Through our jury-selection system, the defense often gets them.
          I tried a complex case of Medicaid fraud in 1994. The evidence included numerous computer print-outs and bank records, so the defense attorney challenged three prospective jurors as too knowledgeable; an accountant, a corporate treasurer and a math teacher. When I denied each challenge, the lawyer simply used his peremptory challenges," which entitled him to exclude jurors without stating a cause.
          Lawyers whose clients have deep pockets use "scientific jury consultants" and peremptory challenges to eliminate jurors on racial, sexual or religious grounds. It's no surprise that after the not-guilty verdict in 0. J. Simpson's criminal trial, defense attorney Johnnie Cochran singled out the paid jury consultant for thanks.
          What struck me after that trial, as I listened to the jurors explain their verdict, was that they were remarkably poor evaluators of the facts. They had discounted the mountain of DNA evidence as though it were of no significance, and they had made no distinction between factual evidence and attorney suggestion.
          I still believe we need a way to dismiss a person who just doesn't "seem right." But these challenges should be limited -- perhaps three for each side.
          Abolish the Unanimous Verdict. In a 1991 case in my court, the defendant had been fired by a company that serviced automated teller machines. He then arranged a phony malfunction of an ATM in a deserted commercial area. When two former colleagues arrived to fix it, the defendant robbed them, shot them repeatedly and left them for dead. One victim survived and identified his former co-worker to the police.
          Never was a man so plainly guilty. The jury voted 11 to one to convict. The one holdout was convinced that someone so good-looking could not commit such a crime.
          The three-week trial was for naught, and the killer had to be retried. The second jury convicted him in an hour.
          The Constitution does not require unanimous verdicts, yet federal courts and all 50 states require them in at least some criminal cases. This sacred cow produces nothing but wasted time.
          What would happen if we allowed 11-to-one or ten-to-two verdicts? There would be fewer hung juries -- and the system would be more efficient. But would it be less fair?
          Respected jury scholars Harry Kalven and Hans Zeisel concluded in a highly regarded study that the first ballot usually determines the verdict. In other words, requiring everyone to agree does not change the outcome or make the verdict more reliable.
          My own experience as a trial judge leads me to agree. When a jury is split eight to four or seven to five, both sides have a reasoned basis for their positions. But in every instance that I can recall where the jury was split 11 to one or ten to two, the holdouts were not being rational. Thus I recommend permitting 11-to-one or ten-to-two verdicts.
          Eliminate Foolish Technicalities. A defendant was accused of forgery. He had tried to make a purchase at Macy's with a stolen check. For ID, he used a stolen driver's license to which he had affixed his own photo.
          The case against the defendant was strong. In my instructions to the jury, I explained some matters of law. After retiring to deliberate, the jury asked for a rereading of some of my comments. I suggested the jurors take notes.
          The jury returned a guilty verdict. The appellate court, however, felt that the one juror taking notes may have had disproportionate influence over the others, and it over-turned the conviction of this obviously guilty man.
          Admittedly New York offers an extreme example of appeals based on foolish technicalities. But it is not unique. Courts around the country have shown similar tendencies to become so preoccupied with a search for error that the defendant's guilt becomes irrelevant.

A Criminal trial is society's way of seeking justice when the life and liberty of its citizens are jeopardized. But because of the defects and deficits in our system, the American courtroom is dangerously out of order.
          Our criminal-justice system should be engaged in a search for the truth. For without truth, how can our society maintain the ideals, values and principles upon which it was founded? If, as the British statesman Benjamin Disraeli said, justice is truth in action, it is time for us to act.

          JUDGE HAROLD J. ROTHWAX has been on the New York State Supreme Court for 25 years. In 1982 he received the New York State Bar Association Award for Outstanding Achievements in criminal-law education.

Readers' Digest - July 1997
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