BOOK REVIEW by Don Doig
by Stephen J. Adler. Times Books, Random House, New York, 285pp., $25 (1994).
Adler appreciates trial by jury, and he's written an important book on reform of the jury system. Adler is the Legal Editor at the Wall Street Journal, and author of the major January 4, 1991 front page article in the Journal on FIJA.
The book opens with an anecdote from attorney Gerry Spence in which a frontier Wyoming jury foreman explains, following the acquittal of a lady named Maude who pistol whipped a guy who had sewn up her horse's mouth for eating his hay: "The judge trusted us to do justice.... That judge knew we wouldn't go along with all that legal horseshit as he was readin' us."
Adler says: "Maude's case is quintessentially American, and it reveals what we imagine and want our jury system to be. It shows the little guy speaking for all of us, justice handed up from the community, not down from some gilded hilltop legislature. It illustrates how a jury, told what the written law is, can nonetheless disregard it when circumstances require. It celebrates justice that's particular to the facts and to the individual. And it displays the jury as more powerful than the high-and-mighty judge (whose legal instructions are ignored) and the imposing prosecutor (who has brought the charges and sought the conviction). Finally it reminds us that jury duty can open our eyes, make us citizens who recognize 'all that legal horseshit' when we see it."
He discusses the development of the jury system, including the John Peter Zenger case which upon a jury veto "in the teeth of the law" established the rights of freedom of speech and the press in the American colonies prior to the Revolution.
Adler's exhaustive investigation of the way juries functioned in six actual trials (one where the system functioned well and five where it broke down) illustrate the problems with the jury in today's courts.
As a result of the problems he identified, he offers a number of reforms. From his perspective, the most important reform would be to eliminate peremptory challenges altogether.
As Adler says: "If a defense lawyer excludes all Irish-Americans because 'they' tend to be proprosecution, Irish-Americans lose the opportunity to serve as jurors." Recent Supreme Court decisions have limited the ability of lawyers to strike jurors based on race or sex, but to get around the restrictions, all they have to do is come up with a neutral, non-biased official explanation. As Justice Thurgood Marshall noted in Batson v. Kentucky, prosecutors in Texas used to be instructed that they should strike "Jews, Negroes, Dagos, Mexicans or a member of any minority race" from a jury. Marshall concluded: "The inherent potential of peremptory challenges to distort the jury process by permitting the exclusion of jurors on racial grounds should ideally lead the Court to ban them entirely from the criminal justice system."
Adler examines the pernicious activities of high-priced jury consultants whose task it is to advise attorneys on how to choose the jury during voir dire, and how to pitch their arguments to the jury. For clients who can afford it, frequently corporations in civil suits, jury consultants employ such techniques as using telephone polls, in-depth interviews with local residents in the district from which the jury will be chosen, pretrial focus groups, and surrogate, or shadow juries. "... that would match the actual jury in terms of demographics and, as far as (the consultant) could determine, psychological traits. Shadow jurors were hired to sit in the spectator section of the courtroom for the entire trial and to report...each evening on their reactions to the day's developments." The attorneys would modify their approach or clarify points accordingly.
Eliminating peremptory challenges would "mean destroying the huge market for jury consultants who promise not only to pack juries but to do so scientifically. It would mean the end of primers, courses, and conferences on how to assemble a winning jury. And it would mean that decades of stereotypes about how people of various ethnic groups are likely to vote would become moot."
In Britain, peremptory challenges were eliminated entirely in 1988. According to Adler, "Now jury selection in criminal cases is a streamlined affair. Potential jurors are picked at random from voter lists. As few as twenty prospects are called to court to be considered for a routine case. A clerk shuffles the index cards on which their names and addresses are written. The first twelve take their seats. The lawyers are permitted neither to ask them questions nor to begin arguing the case before a jury is sworn in... If a lawyer sees a juror who he happens to know has a conflict of interest, he can challenge that juror 'for cause.' But the lawyer can't even ask general questions to find out whether such a conflict exists. And of course, peremptory challenges are not an option. The process takes a matter of minutes or hours, instead of the days or even weeks that are consumed by voir dire in many American trials."
Other reforms advocated by Adler include providing jurors with the resources and adequate comfort to perform their duties, and give them the respect their role, and their power and importance ought to command. Jurors ought to be told from the beginning what laws have supposedly been broken, in translation from the legalese, and how testimony ties in to the charges. This is not usually done, particularly in complex cases. He also believes the instructions ought to be intelligible to the jurors, rather that be structured to withstand reversal on appeal, the jurors be damned. Appellate judges need to be prepared to cooperate.
Adler also believes jurors ought also to be able to ask questions, in written form, which would then be reviewed by the judge and the attorneys, and those that are not completely off the wall and which are permissible under rules of evidence, would get asked of the witness. He would also like to see note taking by jurors be permitted and encouraged.
In one of the cases discussed in detail, Adler mentions that one of the jurors had read his Wall Street Journal article on FIJA, and as a result knew of her power to vote according to conscience:
"That Sue Warner knew this was surprising because it's a well-kept secret of our justice system. But part of what gives juries their strength is the surprisingly wide range of information to which one member or another becomes privy over a dozen lifetimes. In Sue Warner's case she had read in The Wall Street Journal the previous month that a jury rights group, the Fully Informed Jury Association, had been created to spread the word to jurors that they have an absolute power to refuse to follow the law if they consider it unjust. This power, known as jury nullification, has been used often in death penalty cases throughout history, most notably in Britain in the nineteenth century when juries rebelled against capitol punishment for petty theft and other minor offenses."
"That Power helps keep the justice system flexible and open to acts of mercy. And as long as jury deliberations are secret and not open to judicial scrutiny, the power of nullification cannot be taken away. It also was--and is--a unique part of our legal system that could not be preserved if the jury system was abolished and power was turned over to judges duty bound to follow the law."
And at the end of the book, Adler discusses the progress of FIJA and suggests that a "broader-based, better-funded effort aimed at eliminating peremptory challenges, broadening the jury pool, abolishing most juror exclusions, and providing more information and resources for jurors might do even better."
FIJA could hardly be broader-based, however, as Adler himself noted in his WSJ article, and it is making ever deeper inroads into more mainstream segments of the population. While FIJA has actually championed most of Adler's proposed reforms, we chose to focus on jury veto power as the fundamental reform most likely to capture the imagination of political activists and legal reform activists and at the same time offer tremendous potential for important reform of the political system. Adler may not be entirely plugged in to the enormous discontent being felt by people outside the corridors of power, and FIJA has become a rallying point for people who are feeling disenfranchised by the juggernaut of state power.
Preserving access to trial by jury in all trials would have been another valid starting point, but without jury veto power, the question would be, why bother? Eliminating peremptory challenges and voir dire would greatly enhance the effectiveness of FIJA's efforts. Indeed, Texas Senator Florence Shapiro has been promoting legislation to eliminate voir dire in Texas since 1993, with the support of Texas FIJA.