As most of us learned in civics, the right to a jury trial was established in America well before Thomas Jefferson penned the Declaration of Independence. The premier case was the 1735 trial of John Peter Zenger for publishing articles critical of a corrupt New York governor. Although the law prohibited publishing such stories, even if true, the jury quickly found Zenger not guilty--proving that jurors know when to nullify bad law.
The Zenger case represents the jury system at its best. But much has changed in the ensuing 260 years. This year, American jurors will sit through some 150,000 trials. Many will find themselves confused by complex legal issues or simply bored by lawyers' diatribes. They may be poorly treated, languishing in dirty waiting rooms while judges and counsel argue about legal minutiae. And individuals who might make the most attentive arbiters will be struck from jury pools for reasons having little to do with their suitability to serve. No wonder roughly 55% of those called for jury service never bother to show up.
Few would deny that the state of the jury system is bleak. But understanding how one of the most enduring forms of democratic expression became such a deplored and burdensome civic duty is vital to rectifying the situation.
Stephen J. Adler tackles this issue in a remarkably readable and upbeat fashion in The Jury: Trial and Error in the American Courtroom. And though Adler, former law editor of The Wall Street Journal, says at one point that he "searched nearly in vain for evidence that...twelve heads were really better than one," in the end he decides the jury system is indispensable. On his way to that conclusion, he offers an illuminating look at seven civil and criminal cases. The focus of his scrutiny: Why do lawyers prefer one juror over another? What causes even diligent jurors to focus more on emotions than on facts? How have jury consultants and judges contributed to the current mess?
In a chapter called "Lawyers' Poker," Adler goes behind the scenes of the 1990 case against Imelda Marcos. The charge was fraud; essentially, the Philippines' former First Lady was accused of looting her country to support her lavish lifestyle. Adler examines the way her lawyer, Gerry L. Spence, used the selection process to stack the jury. Spence favored fat people over thin, he reports, on the theory that they lacked self-control and might interpret the law less rigidly. He liked older jurors because they understood human shortcomings. Jews were desirable because they might be moved by an argument about persecution.
As Spence hoped, these carefully chosen jurors felt sorry for the teary-eyed, black-garbed widow--even though, says Adler, prosecutors presented reams of incriminating evidence. Unable to follow the Marcoses' complex financial dealings, many jurors focused instead on topics such as wives' ignorance of their husbands' doings. After her acquittal, Marcos treated the panel to a swank affair complete with roast pig and a belly dancer.
Adler also examines the 1989 trial in which Liggett & Myers charged rival cigarette maker Brown & Williamson with predatory price discrimination. For seven months, North Carolina jurors listened to esoteric economic and financial theories. Even the judge's instructions were incomprehensible, says Adler. One juror, asked during deliberations what she thought, replied: "How should I know?" Adler calls the verdict, which favored Liggett, "illogical" because jurors deemed perfectly legal and common business practices improper. In overturning it, the Supreme Court noted that "a reasonable jury" could not have ruled as this one had.
Adler uses a third trial to show how lawyers selling their case to jurors employ the same techniques marketers use to sell detergent. The 1991 trial involved an accident in which a drunk driver struck a teenager and left him brain-damaged. The boy's family sued both the driver and Pizza Hut, where she had been drinking. Before mock jurors, the family's lawyer tried out his argument--that Pizza Hut should not have served alcohol to a visibly intoxicated woman. When the jurors decided people are responsible for their own actions, he changed strategy. During the trial, he blamed Pizza Hut for not training employees to detect drunken customers. The case was settled for $350,000.
Disheartening though Adler's findings are, his prescriptions are not complicated: Give jurors better, more comprehensible instruction. Make the jury pool reflect society by eliminating the widespread exemption of such professionals as doctors, clergy, and firefighters. Improve courthouse conditions, and insist that personnel treat jurors courteously. And get rid of peremptory challenges--the biggest obstacle, in Adler's view, to seating competent juries.
While peremptory challenges are easily abused, they're not likely to be eliminated, since many legal advocates--not to mention existing case law--treat them as sacred. Moreover, tradition, cost concerns, and bureaucratic hurdles all stand in the way of real reform. But after interviewing dozens of jurors, Adler passionately argues for fixing the system. "Jury service remains one of our most precious birthrights and, for most of us, our greatest source of direct political power," he says. "It's a right we cannot afford to lose." Indeed, Adler's most important contribution may be to inspire in readers a feeling of fierce protectiveness toward this damaged institution.