Trial By Jury

Jury trials have recently become national public spectacles. The trials of Jody Arias for killing her boyfriend, of former Patriots football player Aaron Hernandez for killing an acquaintance, of wealthy real estate developer Robert Durst for a second murder after he escaped judgment in the first, are just some of the spectacular court cases currently being covered by national media.

It wasn’t always that way. The media circus around the trial of O.J. Simpson for murdering his ex-wife Nicole Simpson and Ronald Goldman was still unusual in 1995. O.J. was already a national spectacle himself, but newspaper and TV coverage was unprecedented. The L.A. Times put the trial on its front page every day for a year, and network news devoted more time to it than to the Oklahoma City bombing and the Bosnian War combined.

That wasn’t the first trial with national coverage. The trial of John Scopes in 1925 for violating Tennessee’s ban on teaching evolution in public schools attracted reporters from all over the country to tiny Dayton, Tennessee, and the proceedings were reported every day on the radio. That trial concerned an issue of national significance, whose outcome could influence people’s lives across the US.

Although there were jury trials, sometimes with enormous numbers of jurors, in ancient Greece and Rome, juries gained constitutional force as a democratic practice in the Magna Carta of 1215. Article 39 says, “No free man shall be captured, and or imprisoned, . . . or be outlawed, or exiled, or in any way destroyed, . . . but by the lawful judgment of his peers, and or by the law of the land.” Its mirror image was the Star Chamber, a court of the ruler’s men, or the ruler himself.

Our founders attached great importance to jury trials as integral to a free democratic system. In Thomas Jefferson’s Declaration of Independence, among the charges made against the King of England was “depriving us in many cases, of the benefits of Trial by Jury”. The Sixth Amendment to the Constitution guarantees “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed”.

Jury trials for nearly all of their history have been private and local. Jurors knew each other, they knew the accused and accusers, they knew the lawyers and the judge. No juror had to worry that millions of people were observing the case, that TV commentators were picking sides and making accusations of their own, that reporters were following them as they left the courthouse. Nor were publishers and agents waiting for the verdict with big bonuses for telling all. Deliberating jurors could hear each other better without all that noise outside. They could make up their own minds. I think that was good for justice.

Sometimes a whole community believes so strongly in justice that they act through a jury to defy their rulers. That was the case in Russia when Mikhail Beilis was falsely accused of Jewish ritual murder in a 1913 trial in Kiev. Despite dishonest prosecutors, fabricated evidence, lying witnesses, an antisemitic judge and government pressure reaching to the Tsar himself, the jury acquitted Beilis.

Sometimes a society is committed to systematic injustice and uses jury trials to enforce inequality. Racially skewed verdicts were normal in the US, not just in the South, for most of our history. Harper Lee, who happens to be in the news these days for her decision to publish a second novel written long ago, became famous with “To Kill a Mockingbird” about a white jury trial in Alabama of an innocent black man that ends in his death, based on a real case from 1936. By the time that novel was published to acclaim in 1960, and a film version won the Oscar in 1962, jury trials in America were at the tipping point when the racial injustice of the whole legal system could no longer be ignored.

The level of justice provided by jury trials may ebb and flow. The gradual retreat of racial and ethnic prejudice from distorting verdicts is accompanied by the increase of outside intrusion, seeking the thrills of snap judgment, but rarely justice.

Who knows what social transformation will affect the future of jury trials? They’ll still be better than any alternative. Every dictatorship destroys trial by jury for cases which threaten its power. When a jury failed to convict most of the accused of setting the fire that burned the German Reichstag in 1933, Hitler created a new court system, the Volksgerichtshof, where the Nazi judge acted as jury for all political offenses. Jury trials were abolished in the Soviet Union, reinstituted in 1993 after the Communists were overthrown, and then limited again by Vladimir Putin, as he gradually dismantled elements of Russian democracy.

Juries are just part of the trial system and share the flaws of the larger society. The ability of the rich to buy better verdicts through extensive and expensive use of every complication of our legal system is no secret. Even juries’ fairest collective judgments cannot make up for unequal policing or for the increasing pressures of plea bargaining.

Jury duty may seem like an inconvenient burden, although most employers offer paid leave for jury service. We are lucky to live in a society where our guilt or innocence is judged by free women and men. But if we want to be tried by a well-functioning jury of our peers, we must be willing to serve.

Steve Hochstadt

Jacksonville IL

Published in the Jacksonville Journal-Courier, April 14, 2015