I was recently, for about the millionth time, called for jury duty. And for the first time picked for a jury panel on a case that lasted two days. This was for a civil trial in Dallas County, Texas.
What impressed me most was how, once we moved into the private jury room and the door was closed, no one knew what to do. Sure, we had the judge’s directions, but once that door closed we were pretty much left up to our own devices. No one in the room had ever been on civil jury before and only one person had been on a criminal jury. There were no instructions on procedures directing us on using any method to decide the verdict, on how we should organize ourselves, except we needed one person to act as a foreman and we had to answer three questions that the judge gave to us about the case. Other than those two things, it was up to us to decide how to decide the case.
We bumbled and stumbled our way toward answering those three questions. I suspect we proceeded in about it in the same way most juries do, but that does not mean it can’t be done better. In fact, I feel our system of justice can be greatly improved on. Not just a little bit, but improved by many magnitudes.
A non-professional jury deciding a case behind a closed door, with little guidance, does not deliver consistent decisions or fair decisions. Randomness, social dynamics, and guessing plays a large role on who gets picked to sit on the jury and what the ideological mix of the jury will be. Skill and fairness do not play such a large role.
Here’s how I understand the jury selection process works. A computer randomly chooses a group of citizens of a county or town to appear on a given day at a local court, each juror is given a number and those jurors are assigned to different courts. In my experience, blocks of jurors are assigned to different courts, so for examples jurors 1 to 50 go to court 111, then 50 to 100 went to court 222. So which juror goes to which court seems random.
But different states and different counties in a state have different ideological tendencies. In my case, I’m in Texas which is very conservative, but I’m in Dallas county which is perhaps not as conservative as much as the state, but still conservative. So, any jury in Dallas County is going to be conservative.
In a jury trial, more potential jurors are assigned to a court than the court will need. Each attorney gets to ask questions of the potential jurors. They get around thirty minutes each to ask questions, although how long they get depends on the trial and how long the judge thanks they need. This is not thirty minutes to question each potential juror, but thirty minutes to question all the potential jurors, which will usually be around thirty to fifty individuals, hardly enough time to get to understand what a person is about. Then the attorneys and the judge work together to decide who will sit on in the jury box during the trial. It is my opinion that the attorneys are not interest in selecting fair minded jurors. Instead, they care about selecting jurors most likely to rule in their favor. But their picks are still mostly guesses. You can’t tell what anyone is about by looking at them and asking a few brief questions. Anyhow, this is basically how the jury is selected.
What this means is that those called for jury duty may, or may not, know anything about law. I didn’t, nor did anyone else in the jury room with me. Even the simplest concepts of how to go about deciding the case we did not know. We did it the best we could. And it was my observation that jurors do bring their personal beliefs into the jury room.
It is my contention that the ability of a particular jury panel to deliver fair justice is mostly a matter of luck. Some panels may be composed of jurors who are fair, but others are composed of jurors who just want to go home. Some people will come into the jury room with leanings and beliefs that run counter to the way the law is or they don’t like the look or type of person who is the defendant or plaintiff. To restate what I already said, a jury is not made up of professionals with training to think beyond their biases. Even when they try to be professional in giving out justice, our jurors simply are not legal professionals. Our juries, made up of amateurs, cannot consistently deliver fair justice no matter how much we wish to believe they do.
Okay, so what to do about it?
The reason jurors meet in private and secrecy, as I understand it, is for their protection against retaliation and to prevent outside influence on their decisions. To some extent this may work, but there are, usually, twelve jurors in the room, and who they are is not a secret. Once the trial is over, the jurors are free to talk about the proceedings in the jury room. This means any secrecy is flawed and so is the protection against retaliation. I mention this because I think any method to increase the fairness and quality of our justice system will require less secrecy in the jury room.
So, to my first solution: At a minimum, I feel we need a legal professional in the room with the jury giving them directions and keeping them on track. I think the best person to do this would be the judge. But someone with training and skill at handling groups may also be able to do the job. The person needs an understanding of the legal system and what the judge wants. The person also needs to be able to deal with jurors with strong opinions. This person should have the authority to speak for the judge.
My second solution is that we should record what goes on in the jury room. Really, this is the only way to enforce accountability.
My third solution, which I like the best is to do away with the jury system and use professional jurors. Instead of having twelve people who understand little about the how the justice system works, leaving their jobs for a day or more, we should have trained professionals judging our legal cases. The court would need one head judge and two or more associate judges. The attorneys would present their case much as they do today, but as I envision it, the judges could ask questions of the attorneys and witnesses during the trial. And the associate judges need not be full time judges. They could work by the case and get paid by the case. What is important is that they have legal training and continue that training.
Using only professionals on a jury would cost more than our current system. But maybe not that much more. I believe our legal system would work faster and more smoothly using only professionals. Attorneys would not spend so much time trying to help jurors understand what was going on. The professional judges could as questions and the trial will get to the point faster. And of course, professional jurors, understanding what they are doing, will decide the case faster.
Professional jurors are still people and still have biases. But because they are professionals and because we can require a written statement of why they rule as they do, it would be easier to enforce a standard, to have accountability.
These are just ideas. My main point is our justice system is not as good as we pretend it is and we should discuss and explore ways to make it better.
The jury consist of twelve persons chosen to decide who has the better lawyer. Robert Frost