BOOK REVIEW by Don Doig
Jeffrey Abramson, a professor of politics at Brandeis University, has written an intelligent and comprehensive study of the institution of trial by jury in America. Ranging from the jury in colonial history to race bias in death penalty cases, from a discussion of jury selection controversies to a strong case for the importance of unanimous verdicts, to a discussion of what the ideal of impartiality implies, Abramson's book is fascinating reading from start to finish, including the discussion of FIJA and FIJA legislation.
Chapter two is named "Juries and Higher Justice". It is a thoughtful discussion of jury nullification as a legal doctrine, and traces the history of the jury as judge of law from the seventeenth century Levellers and Quakers, including a narrative of the trial of William Penn and William Mead in 1670 and a discussion of the 1735 trial of John Peter Zenger, through the nineteenth century, when it came under increasing attack from the judiciary. He says, "...the right of juries to decide questions of law became a rallying cry for political and religious minorities throughout the seventeenth century; in the colonies it turned local juries in times of crisis into centers of resistance to parliamentary law."
Abramson notes a distinction between the original broad claim that jurors could decide what the law was, and all contested matters of law, common during the colonial period and the early decades of the Republic, and the simple power of jury nullification. This is simply the right to decline to apply the law, to acquit an otherwise guilty defendant.
Some of his conclusions are especially worth noting: "For all its inconveniences and, within the restricted world of white male freemen, the jury emerged, at the time of the American Revolution and through the early decades of the nineteenth century, as a premier institution of local self-government, empowering the enfranchised with an effective voice to interpret and enforce the law in their community. The lawmaking jury partly presumed that citizens had the knowledge and virtue it takes to find the law justly; but the lawmaking jury also served as a hands-on school where citizens learned the virtues of self-government by actively participating in constructing their communities laws. That different communities might then interpret national laws differently and fit them into a local context was not a threat to republican government; it was the welcome result of decentralizing power over the law down to the local level and into the hands of citizens."
He goes on to note: "When power over the law shifted from jury to judge, democracy shifted in its nature as well. From Battiste to Morris to Sparf, federal judges worked out a political theory that severed the classical connection between liberty and self-government."
"To permit juries to show mercy by not enforcing the law in a given case is hardly to destroy the fabric of a society under law. Indeed, putting pressure on jurors to convict against their conscience would seem to threaten the integrity of the law far more seriously. Our current system, in which we tell jurors they must apply the law in every case no matter how unjust the results seem to them, opens the chasm between law and popular beliefs that the jury system exists to prevent."
In discussing the ACLU of Massachusetts' opposition to the FIJA bill introduced in the Massachusetts legislature in 1991, Abramson notes "The ACLU affiliate's stance against jury nullification is a succinct expression of the collapsed faith in the virtue of jurors that drives the declining role of jurors at trial. In that group's judgment, jury nullification encourages jurors not to rise above law to consult fundamental justice by to fall below law into brute bias. One is left to wonder whether the rejection of jury nullification is not a rejection of the idea of the jury altogether."
Like Steven Adler, whose recent book was reviewed in the last FIJActivist, Abramson decries the abuses of "scientific jury selection", and argues for the elimination of peremptory challenges, or challenges without specific cause, in favor of a cross-sectional ideal based on random selection.
He argues persuasively that the jury ought not to be thought of as a "representative" body in which jurors think of themselves as mere representatives of their "group", but rather as a deliberative body, reflective of the diversity of the community, meeting to come to a common consensus through the give-and-take of honest discussion.
In 1972 the Supreme Court permitted non-unanimous juries for criminal cases in state courts, in approving 10-2 verdicts in Oregon courts and 9-3 verdicts in Louisiana. Abramson correctly argues that this bodes ill for the jury. He writes: "The unanimous verdict rule gives concrete expression to a different set of democratic aspirations--keyed to deliberation rather than voting and to consensus rather than division. Voters pull a curtain and vote in private; jurors meet face-to-face and debate their differences. Numbers are decisive in elections, making problematic the effective representation of small or marginal groups; on the jury, the practice of unanimity represents an ideal where individual views cannot simply be ignored or out-voted. At its best, unanimity disempowers narrow and prejudiced arguments that appeal to some groups but not others. It favors general arguments persuasive to persons drawn from different walks of life."
"In Johnson v. Louisiana...Johnson argued that Louisiana's acceptance of a 9-3 jury verdict in his case violated his due process rights under the Fourteenth Amendment to have his guilt proved beyond a reasonable doubt. By definition, no jury could reasonably find a defendant's guilt proved beyond a reasonable doubt, he argued, when some of its members continued to harbor doubts." In Apodaca v. Oregon, the defendants argued that "unanimity was essential to enforcement of their Sixth Amendment right to be tried before cross-sectional juries. Only the unanimous verdict rule could guarantee effective representation to minority views; anything less empowered majorities simply to outvote minorities." Unfortunately, the Supreme Court ruled against both arguments by a narrow 5 to 4 decision.
Abramson has written a challenging and worthwhile book, and it is to be recommended by those who would understand the evolution of trial by jury.
Jeffrey Abramson, We, the Jury: The Jury System and the Ideal of Democracy, Basic Books, 1994. ISBN 0-465-03698-8. Hardcover, $25.