Jewish World Review April 5, 2004 / 14 Nissan, 5764
Fixing the jury system
Now that the case against Tyco executives has ended in a mistrial, there is much outcry against the juror whose holdout will cause a $12 million trial to have to be done all over again from scratch. Whether that juror was principled or just pig-headed, this trial reveals something more fundamentally wrong with our jury system and with the media.
It was not some trashy supermarket scandal sheet, but the Wall Street Journal and the New York Post, that published the juror's name. The Associated Press published her photograph. It was not this juror's holdout itself which ultimately led to a mistrial but a report of her receiving a phone call and a letter that were seen as putting pressure on her.
The jury was described as being minutes away from reaching a verdict when the judge called a mistrial. But the judge was right. There was no way of knowing whether the holdout juror was now agreeing with the other 11 because of an outside threat.
The media who are condemning this woman ought to be condemning themselves for their own irresponsibility, which is not only costing taxpayers millions of dollars but can corrupt the whole system of justice. The New York Times pioneered such irresponsibility years ago, when it published the name of the foreman of the jury that acquitted the policemen who beat Rodney King.
Newspapers have every right to complain about any jury verdict they don't like. But that is wholly different from putting jurors in personal jeopardy when they don't vote the way the media wants them to vote. Do we want future jurors to decide cases on the basis of facts or on the basis of fear?
In the Diallo police shooting case four years ago, a witness whose testimony tended to support the defense was forced by the prosecutor to reveal in open court not only his name and address, but also the very apartment in which he and his family lived.
In an atmosphere where mobs were being whipped up outside the courthouse by demagogues, this was a shot across the bow of any other potential witness who might testify in ways that the prosecutor did not like.
Do you wonder why witnesses do not come forward? When they do come forward, are they supposed to testify to what they actually saw or to what they think will keep them out of trouble?
If we are serious about wanting justice in our courts, then we need to start getting serious about preventing witnesses and jurors from being intimidated. We might start by getting all cameras out of the courtroom.
There is no reason why the identity of the jurors has to be known by the media. The whole jury could be put behind one-way glass, so that they can see the proceedings but cannot be seen. It can be made a felony to publish their names.
The requirement for unanimous jury verdicts is long overdue for reconsideration. One pig-headed juror can cause not only a costly mistrial but also verdicts that do not reflect the seriousness of the crime.
People who commit murder should be convicted of murder, not manslaughter because one juror is too squeamish to risk the death penalty. There are too many people around who think they have "a right to my own opinion," as they put it, which translates as: "My mind is made up, so don't confuse me with the facts."
The time is also long overdue to reconsider the current practice of having jurors selected with vetoes by the lawyers in the case. When prospective jurors are given 30-page questionnaires made up by lawyers, asking intrusive questions about their personal lives and beliefs, the situation has gotten completely out of hand.
Courts do not exist for the sake of lawyers but for the sake of the public. Allowing lawyers to fish around in hopes of finding one mushhead who can save their client makes no sense.
Anonymous jurors, selected by lottery, and not restricted to unanimous verdicts, should be good enough for anyone in an inherently imperfect world. In such a system, cranks and ideologues would not have nearly the leverage that they do now.
There could also be professional jurors, trained in the law, for cases involving complex legal issues. That would cost more or rather, the cost would be visible in money, rather than hidden in the corruption of the legal system, the way it is now.
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JWR contributor Thomas Sowell, a fellow at the Hoover Institution, is author of several books, including his latest, "Applied Economics: Thinking Beyond Stage One." (Click HERE to purchase. Sales help fund JWR.)