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Jewish World Review July 13, 1999/ 29 Tamuz 5759

Marianne M. Jennings

Marianne M. Jennings
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Bunk, junk & juries -- SHOULD THE OCCASION arise, I would prefer not to have a jury of my peers because, of late, juries of peers have shown themselves lacking in the discernment necessary for sorting through the bunk and junk floating around court rooms. Bunk-o-meters have been racing at full tilt in courts because jurors buy the flumdiddle offered up by desperate parties in desperate times.

In the OJ Simpson case, there was a carload of damning forensic evidence vs. Johnnie Cochran's suave and cologne-dosed racial defense theory that everyone in LA law enforcement conspired at Bundy to frame Mr. Simpson. U.S. pilots had difficulty spotting the difference between homes and nuclear arms factories in Kosovo and we are to believe that the LA civil servants developed this complex schematic in the wee hours of the morning? Nonetheless, a jury of Simpson's peers (apparently Homer Simpson) bought Cochran's bunk.

Tales of daft juries abound. In the tobacco cases, jurors found that warning label on cigarettes, something about instant death, did not bar multi-million dollar verdicts for wheezing plaintiffs. There is, of course, the infamous Stella Liebeck-$2.7 million-McDonald's-hot-coffee- burn verdict.

One policy-wonk juror in the case wanted to send the message that, "the coffee's too hot out there." That this verdict was later reduced demonstrates that peers don't render competent judgment. I would have sent Stella home with a note, "Coffee is hot. Deal with it." Women molested at the Tailhook convention at the Las Vegas Hilton won a $5 million verdict from Hilton. Women should know that men + liquor at conventions has equaled trouble since the days Billy Wilder first made films about it. Men, women and verdicts came together again in 1998 when a Texas jury awarded a Waffle House employee $6.3 million in punitive damages in her sexual harassment suit because jurors felt Waffle House needed "strong medicine."

In April, a North Carolina jury awarded a young man who had killed two residents of Chapel Hill $500,000 to be paid by his psychiatrist for not taking the young man's psychosis seriously enough. Several jurors explained they gave the young murderer (jurors in his criminal trial found him not guilty by reason of insanity) the cash to send a strong message to treat mental illness. Let's begin anew with psychoanalysis of those 12 jurors.

Juries, once the element of sanity amidst lawyer rhetoric and scientific bunk, have become the judicial system's wild card. A National Law Journal juror survey found that over half believe that they should decide cases on personal beliefs, not law. Lawyers capitalize on the jury factor. There are the likes of Jo Ellen Demetrius, of the Cochran defense team, who assist lawyers in picking just the right brand of nincompoop for a jury to ensure a favorable verdict even one not grounded in fact or law. A bar-sponsored seminar with tips for personal injury lawyers is unabashedly entitled "Seducing a Jury."

Here in the fair state of Arizona, the bunk-o-meters were in overtime during the trial of engineer Scott Falater who admitted stabbing his wife 44 times and then holding her head under water in their swimming pool until she died. He claimed that he was sleepwalking during the entire 45- minute scenario, and Falater's experts testified that Falater's wife interrupted him as he tried to fix their pool pump while sleepwalking, thus setting off the bloody rage during which he managed to change and hide his clothes and quiet the dog. The Falater murder case has done to every married woman in America what the film Fatal Attraction did to every married man.

Women were scared, not because many husbands began dismantling pool pumps and sleepwalking, but because we felt, to paraphrase Bob Bennett's, the Clintons' personal lawyer's, observation on the president's definition of sex, that this "crap" might actually fly. Juries of our peers have not proven particularly reliable in sorting wheat from chaff. But, two female Falater jurors sorted through the bunk with common sense. They knew Mr. Falater was not telling the truth when he took the stand and testified that he and his deceased wife never argued. And men buy Playboy for the articles.

These wise women knew bunk when they heard it and found Falater guilty of first degree murder.

This kind of wisdom and common sense in juries of our peers was in the minds of the forefathers -- the common sense of the common man as a means of checks and balances.

But the common man has become uncommon and jury consultants manipulate jury structure in order to avoid facing that uncommonly good sense. One lawyer explained that the last thing you want is a thinking jury.

That Ms. Demetrius and her kind can find so many buffoons in a jury pool and lawyers are able to mislead so easily is telling. Truth once trumped bunk for a jury of our peers saw to it on a regular basis.

Now such discernment is rare, but with the Falater case hope springs eternal amidst the bunk and junk.

JWR contributor Marianne M. Jennings is a professor of legal and ethical studies at Arizona State University. Send your comments to her by clicking here.


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06/22/99: Dems and the Creator coup
06/17/99: True courage is more than just admitting troubles

©1999, Marianne M. Jennings