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Juries on Trial

Think Tank Transcripts:Juries on Trial

MR. WATTENBERG: Hello. I'm Ben Wattenberg. The O.J. Simpson murdertrial has focused public attention on jury selection. Some expertssay that publicity, prejudice and complexity are destroying the jurysystem.

Joining us to sort through the conflict and the consensus areJudge Robert Bork, senior fellow at the American Enterprise Instituteand author of 'The Tempting of America'; Lani Guinier, professor oflaw at the University of Pennsylvania and author of 'The Tyranny ofthe Majority'; Paul Rothstein, professor of law at GeorgetownUniversity; and Fred Cate, senior fellow at the Annenberg WashingtonProgram in Communication Policy Studies and a law professor at theUniversity of Indiana.

The topic before this house: Juries on trial. This week on 'ThinkTank.'

The right to a trial by jury is guaranteed by the 6th and 7thamendments to the Constitution, but now some legal experts questionhow well it's working. Let's take a look at some famous jury trialsto see what's going on. Take the civil arena first.

In 1989, the Exxon Valdez spilled oil in Prince Williams Sound.The company spent $2.2 billion to clean up the mess and paid nearly$600 million to compensate fishermen and others for their losses.Recently, however, a jury assessed $5 billion in additional damagesto punish Exxon and to deter other oil companies from unsafe conduct.That's almost a full year of Exxon's profits.

A woman in New Mexico spilled hot McDonald's coffee in her lap andburnt herself. Jurors awarded her $2.7 million for pain andsuffering.

Fact: Most other countries don't allow juries in civil cases.

What about criminal trials, and what roles do race and the mediaplay? In the Rodney King beating case, a state trial jury with noblack members found police officers innocent of using excessive forceto subdue King. Later a federal jury with two black jurors came to anopposite conclusion.

And consider the complexity of some modern trials. In the ReginaldDenny beating case in Los Angeles, potential jurors had to answer a45-page questionnaire with 116 questions.

Defenders say that the system is basically sound. They point tothousands of cases decided by juries every year which are notchallenged or set aside by judges. Okay. First question around theroom, starting with you, Bob Bork. The question all America isasking: can O.J. Simpson get a fair trial?

JUDGE BORK: I think he can. The question is whether theprosecution can avoid a hung jury because we've been seeingincreasing racial polarization on juries, and we've seen in the pollsracial polarization on this particular case.


MR. CATE: I think the answer is yes, precisely because of thepublicity surrounding this trial.

MR. WATTENBERG: Paul Rothstein.

MR. ROTHSTEIN: I think both sides can get a fair trial. There hasbeen so much pro and con from both sides that most people now whomight have started out with a preconceived notion of who should win,now most people that I talk to say, well, I've heard so much bothways, I don't know what to think; my mind is in 50 50 equipoise.That's a fair juror.

MR. WATTENBERG: Lani Guinier?

MS. GUINIER: What's fair?

MR. WATTENBERG: What's fair is, if the person did it, he goes tothe slammer, and if the person didn't do it, he goes free.

MS. GUINIER: I think that in this particular case, he will not beconvicted. That's my intuition. That has no reflection on whether ornot he actually committed the crime.

MR. WATTENBERG: So you would say, in this sense you might agreewith Bob Bork that it would be unfair, that he actually might havekilled those people, but you're going to get a hung jury.

MS. GUINIER: That's possible, that he may have committed thecrime, but I don't believe he will be convicted, certainly not offirst-degree murder.

MR. ROTHSTEIN: In a sense, it's irrelevant whether they find he'sguilty or innocent and whether he really was guilty or innocent. Thepurpose of a jury trial is to have peace, to have a so-calledtruth-saying, whether it is the truth or not, but something that thepublic will accept as capping this thing, finalizing it. And it'sreally irrelevant whether it reflects the truth, in a sense.

JUDGE BORK: If you get a hung jury and the evidence is ratherclear that the man's guilty, I don't think the public is going toaccept it. I think there will be a lot of bitterness.

MR. CATE: I think that the spotlight on this trial is going toshow people that this is a full and fair process, and it is going tomake them accept this. It's very hard to railroad a guy when there isthis kind of publicity. No one can be heard to say, well, theyrailroaded him, after this trial is over.

JUDGE BORK: No, that's right, but if he's acquitted and theevidence suggests that he shouldn't be, or if there is a hung juryand the evidence suggests that there shouldn't have been, I think thepublic will be dissatisfied.

MR. WATTENBERG: Listen, what is right and wrong about the Americanjury system? There are -- you go out and talk to people in thestreet, and there are a lot of people who now think that this systemhas become corrupted by jury selection, computer whiz-bangrazzmatazz, complexity, hung juries, long trials, racial differences,as you said. Is this system working in America?

JUDGE BORK: In many cases, it is; in some highly visible cases, itis not. You had the Menendez trial in California, which was not acase of racial polarization. That was a case of an emotional appealto jurors, six of whom said not guilty of first-degree murder,although the facts clearly indicate otherwise.

MR. CATE: I think we have to sort of worry about those cases thatare not attracting so much publicity, not on the front pages of thepapers, because frankly every jury study that's done today shows thatjurors are confused, that they don't apply the law accurately, theydon't understand their calculations.

They may reach verdicts that are either accurate -- and I wasinterested to hear that your definition of fair is really being oneof accurate, to say that if the person's guilty, he's found guilty,whereas I would say juries are not a great mechanism for gettingaccurate verdicts. They may be a great mechanism for getting fairverdicts, for getting a sense of the community --

MR. WATTENBERG: I may be missing something here. What is thedifference between fair and accurate? I mean, most of us out here --you're four lawyers, but most of us out here would say the jury hasgot to arrive at the truth.

MR. ROTHSTEIN: No. 'Fair' refers to the process. If everybodysays, well, we saw that process, we see that the judge didn't fallasleep, that no one tried to railroad him, we saw the evidence, wethink it's a fair process, it's in a sense irrelevant as to whetherit reflects in some cosmic sense the truth or not the truth. Itdoesn't matter.

MR. WATTENBERG: You sort of think that the jury trial is likevoting or something like that?

MS. GUINIER: That it's a way of legitimating the criminal systemin the minds of the public without regard to the specific outcome ineach case.

JUDGE BORK: I couldn't disagree more. I think the -- you see theprocess is regular, but the outcome is something that we clearly knowshouldn't have been. I don't think that's fair.

MR. CATE: Well, what's the alternative to a jury system, to haveone autocrat, one bureaucrat, one judge, one elite person say, that'sthe result? People wouldn't be satisfied with that, even if it's moreaccurate.

JUDGE BORK: It may be, but the jury system may nevertheless bebreaking down even if there is no acceptable alternative.

MS. GUINIER: I think there is also a question -- you say, what isaccurate, what is truth? Part of what the jury system reflects is thefact that people bring different biases and perspectives to anobservable event, and they see that single event differently. So foreach of them, they are revealing a truth, but it is not perhaps thetruth as you or I might see it, but in their minds, they are honestlyand with integrity functioning.

MR. WATTENBERG: Fred, do we find blacks favoring blacks and whitesfavoring whites or being particularly tough on blacks? Is there a --I mean you hear stories that many black jurors will not accept theword of the law against a black defendant even when it's perfectlyclear that --

MR. CATE: I don't see any systematic evidence of that. You cancertainly find anecdotal evidence of that, but frankly, I think,frankly, the greater concern about what's happening in the jurysystem isn't the racial issue. It is in fact the way that we areselecting juries now. I mean the days in which you said, I want ajuror who's a man or a woman, or I want a juror who's black or white-- those seem to be largely out the window now. Now we're looking atteams of scientific consultants on which hundreds of thousands ofdollars are being spent for a single trial, who are polling thepublic, who are running shadow juries to test out the cases.

We've seen this clearly in the O.J. Simpson case. And if -- and Icompletely agree with you, Lani, that the key to a jury is itsrepresentativeness, its set of experiences that it brings -- if weare deselecting those experiences to say my scientific consultantssay what I need is this, and your scientific consultants say you needthat, I think we're screwing up the jury system.

It is very disturbing to professionals -- the attorneys, thejudges and so forth. Jurors are frankly something that we don't knowquite what to make of. They're not trained, they're not expert, theydon't speak our language.

JUDGE BORK: Well, usually one side or the other has an interest ingetting a jury that does not understand the facts.

MR. CATE: I think that's absolutely right.

JUDGE BORK: And they begin knocking -- if you get an antitrustcase involving manufacturing, anybody that has any experience in thatfield gets knocked off the case by one side or the other.

MR. ROTHSTEIN: But there are some perceptions other thanconsideration of technical, complex legal issues that should enterinto the decision, thoughts brought into the jury room by members ofthe community.

For example, Ben, and you asked whether race is overwhelming thesystem, it seems to me in a case like Rodney King or O.J., blackjurors are going to view police conduct with suspicion. To them --alot of inner-city blacks, anyway -- to them it's quite realistic tosuppose that the police planted evidence, that they did some badthings, some wrong things.

White jurors, on the other hand, have a lot of confidence in thepolice. They say, if the police felt this guy was guilty, he probablyis. Well, who's to say what the truth is? And I think that kind ofperception has got to be in there, has got to be part of the mix,even in an antitrust case.

MR. CATE: But we're also talking about different things here. It'sone thing to talk about the sense of the community coming in, tomaking value judgments. I mean, let's face it, the jury system isfull of value judgments, like being convinced of guilt beyond areasonable doubt. If we just wanted to toss it up in the air and gofor the accurate verdict, we wouldn't bias our decision-making withthose presumptions.

I think that's different, though, than the case where we say, didthis jury understand the law? Did this jury -- was it capable, was itcompetent of understanding antitrust law? Was it competent to heartestimony for eight months -- I'm thinking of the Liggett-Myers andBrown and Williams case in North Carolina, the longest running civiltrial in North Carolina history --

MR. WATTENBERG: Eight months?

MR. CATE: Not a single juror who had graduated from college onthat jury.

JUDGE BORK: Well, it's a fact that jurors afterwards unanimouslysaid that they didn't understand what the case was about.

MR. WATTENBERG: Lani, where do you come down on this racequestion? I think everybody has sounded off on it so far except you.I mean, are blacks less likely to convict blacks? Are whites morelikely to convict blacks? Is it fair?

MS. GUINIER: Well, I think you're using race as a proxy forcertain attitudes, and on some level it's a crude proxy that we userace or particular experiences to generalize about what that personmay or may not do. In this particular case, what you're saying, and Ithink this is what Professor Rothstein said, that many blacks haveexperienced -- not personally, but others in their family or in theirneighborhood have experienced police overreaching, and therefore theybring to the jury service skepticism about police behavior.

That doesn't mean that they -- it's skepticism -- it doesn't meanthat they will not convict someone who the prosecution proves isguilty beyond a reasonable doubt, but in order to persuade them thatthat person is guilty, the prosecution may have to reach above athreshold that they don't have to reach with a white juror, who isnot so skeptical. In that sense, the black juror may be presuming thedefendant innocent, which is indeed their job, more than the whitejuror. I mean, you could look at it both ways.

MR. ROTHSTEIN: Ben, on this issue of complexity and the jury can'tunderstand things -- some juries --

MR. WATTENBERG: That's what our elitist friend Robert Bork said.

MR. ROTHSTEIN: I think there are some things that we could do toimprove jury understanding. For example, there ought to be periodicsummaries by the lawyers as to what they just in the last 10 minutessought to prove by these witnesses, rather than just letting all thewitnesses testify and the jury doesn't know what's going on here.

We could allow jurors to take notes. We could allow jurors to askquestions. I would think also that some legal instruction should begiven up front in a case rather than just at the end, because a humanbeing needs to have a framework to hang what they're hearing on. Whatthey're hearing just goes by them if they don't know what thequestions are going to be at the end of the case.

MS. GUINIER: What I think may be happening is that there arefailings in our litigation system that relate to the lawyers and tothe judges, but we focus on the juror as if they're the problem whenthey're simply a window showing us what the larger problems may be.

JUDGE BORK: Well, we can discuss the judges because judges aredoing a lot. In fact, the failure of the jury system has a lot to dowith judges who do not either adequately explain to the jury or donot take from the jury a case that should never be decided by a jury,when it's possible.

MR. CATE: I think that's exactly right. And frankly, that'sexactly where we should be focusing. I mean there are --

MR. WATTENBERG: That the judges are no good? (Laughter.)

MR. CATE: That the judges and the attorneys are where we should belooking when we want to talk about the jury system. I mean there arecases, clearly, where a jury goes off. You know, there's aninvestigation now in England where a jury used a ouija board tocontact a dead witness. Well, that is a sort of unusual case.

MR. WATTENBERG: They got a good connection? MR. CATE: The typicalcase, though, is where the judge does not instruct the jury, the jurywatches eight months of testimony, never being told what the rules ofthe game are, the jurors don't take notes, the jurors don't ever getto ask questions of a witness or even give the questions to a judge.

MR. WATTENBERG: Would that be a good idea, if the jurors wereallowed to question?

MR. CATE: Terrific idea.

JUDGE BORK: I think it would be.

MR. WATTENBERG: Judge Bork, good idea?

JUDGE BORK: Yeah, I think --

MR. WATTENBERG: Screened by the judge.

JUDGE BORK: Screened by the judge. Written questions screened bythe judge, and then the judge can ask them.

MR. WATTENBERG: What about the idea -- as I understand it, in acriminal trial, you cannot bring up the past behavior or criminalrecord, typically, of a person on trial. I mean, a person might be aserial rapist and this is the seventh time you got him, but the jurydoesn't know that.

JUDGE BORK: Well, there are rules that sometimes that's allowable,but you probably know more about that than I.

MR. ROTHSTEIN: In the O.J. case, for example, there is going to bea big debate about whether prior acts, if any, of spousal abuse areto be admissible on the issue of whether he killed his wife. Thecommon law set its face against that kind of evidence.

But it seems to me that here's where the publicity comes in as agood thing. The vast majority of people in our country are going tohear that, and they're going to say, wait a minute, I think that isrelevant, I think that should come in. Well, shouldn't they have somesay-so, too? Why should we accept something written by a lot of deadjudges in the old days who weren't really keyed in perhaps with therealities of domestic violence?

MR. WATTENBERG: Fred, you have written on this idea of jurorsbeing shielded from prior criminality by the defendant. What is yourtake on that?

MR. CATE: I think it's absurd. I mean it's information that wewould all consider relevant. If you were hiring a housekeeper, youwould want to know about prior convictions. If you were hiring acolleague on the law faculty, you would want to know thisinformation. It would be relevant information.

We take it to a jury and we say, no, no, it's prejudicial. But allinformation a jury gets is prejudicial. There is a great irony here,which is, particularly now with these jury questionnaires in thesehighly visible trials, the defendant is going to know everythingabout the jurors. Going to know all past criminal records, going toknow the income, going to know religious groups you belong to; do yougive money to a political cause?

You know, there's a woman in Denton County, Texas, who is now,unless her appeal to the Supreme Court is successful, going to jailbecause she would not complete a 15-page jury questionnaire. Whyshould we then insulate the jury from that same information about thedefendants?

MR. WATTENBERG: Lani, is the press and the sensationalist pressand the talk shows, are they getting in the way of fair jury trials?

MS. GUINIER: Well, I think the press gets in the way of --

MR. WATTENBERG: Everything.

MS. GUINIER: -- of many things. But in this particular case, I'mactually very respectful of much of the press coverage because Ithink it is performing a tremendous public service. I think it iseducating the American people about our criminal justice system.That's good.

MR. ROTHSTEIN: People on the street and in cabs and on the subwayare talking to me about the Fourth Amendment to the Constitution, thesearch-and-seizure provision -- when they jumped over O.J.'s wall. Imean, when in history have people all over been talking about issuesthat are this lofty?

I think it's important and I think people should have some inputinto how their law is run. And they should also begin to getcomfortable with courts so that they use courts rather than go outand fight in the street. And you also ought to encourage them that ifa verdict comes down, even if they don't like the particular verdict,that they understand how it was arrived at, so they think that it wasfair and accept it.

And publicity and television does that. I never thought I'd hearmyself talking this way. (Laughter.) I used to be against all ofthis, but I see it as working very well.

JUDGE BORK: Maybe what you ought to do, however, is stop excludingpeople from the jury just because they've read about a case.


JUDGE BORK: This idea of getting people who are utterly isolatedfrom the world and have no interest in the world, and that the moreignorant you are, the better a juror you are, is crazy.

MS. GUINIER: Right. I don't think that anybody is a blank slate.

JUDGE BORK: Unfortunately, some of them are. (Laughter.)

MR. CATE: And again, this reflects our view, though, of juries,you know, that ideally you're looking for these 12 people who aregoing to just be led by the court professionals, by the attorneys, bythe judge. And in fact, you know, I would want on the jury the peoplewho care enough about the world around them to read a paper, to watchtelevision, to be engaged in this dialogue about what's happening intheir community. Someone who had managed to miss this story I thinkis constitutionally unfit to be a peer -- a jury of peers.

MR. WATTENBERG: Let me ask you this. If I recall my demographics,the Los Angeles area is about 10 to 12 percent black. That would meanon a 12-person jury, were it proportional -- and we've hadproportionalism arguments, Lani -- would that be regarded as a fairjury if there was only one black on it?

JUDGE BORK: It would depend on how the jury was selected. Youknow, if it's a neutral process and it just falls out that way, yeah,it would be a fair jury.

MR. ROTHSTEIN: I agree with Judge Bork on that, that there is toomuch talk about having a representative jury with this percentage ofthis kind of person and this percentage of that kind of person. Theonly thing that's important is that the process be regarded by thepublic as essentially a roll of the dice, the process of selectingthe jurors, that it's chance. They'll accept an imbalance based uponchance, and that will be regarded as fair. But if somebody's tryingto manipulate or gerrymander to get a certain kind of person on thejury, that's what's resented; that's what's regarded as unfair.

MR. WATTENBERG: Bob, do I understand that you are going to serveon a jury?

JUDGE BORK: I have been called for jury service next Monday.



MR. WATTENBERG: In DC. Are former judges --

JUDGE BORK: They're not excluded.

MR. WATTENBERG: They're not excluded.

JUDGE BORK: No. In fact, they've had judges -- it's in theSuperior Court -- they've had Superior Court judges sit on juries inthe Superior Court. That may be because the lawyers are afraid tochallenge them. (Laughter.)

MR. ROTHSTEIN: A particular lawyer could knock off a judge if hewanted to.


MR. ROTHSTEIN: And it probably is a good idea, I would think.

JUDGE BORK: Well, I hope somebody challenges me.

MR. WATTENBERG: Okay, let's go around the room this way again andtry to figure out our favorite question here. What do we -- you allcollectively agree upon and disagree about?

JUDGE BORK: Well, I think we agree upon everything except thedefinition of what is a fair trial. (Laughter.)

MR. WATTENBERG: Oh, okay. In what way?

JUDGE BORK: Well, there seems to be a tendency on the part of mycolleagues here to talk as if it is merely the process rather thanthe accuracy of the outcome. And if I were an innocent person sent tothe slammer because the process looked nice, but they didn'tunderstand it actually, I would not be happy with that. Now, you maysay the community is happy, but I don't want innocent people in jailand I don't want guilty people walking around the streets.

MR. WATTENBERG: This would flow pretty much from your theory oforiginal intent. I mean it's of a piece of with that, is that right?

JUDGE BORK: I guess it's of a piece with that. I'll work that out.(Laughter.)


MR. CATE: I think the one thing we seem to all agree on is thatthere is a lot you could do to improve the jury system, that whetheryou think it's basically sound or whether you think it's headed outthe door, in either case, there's a great deal that we could do tomake the jury system work better and that a lot of that would focuson what attorneys and judges do in their interactions with juries, inthe way that they treat juries.

I think one of the things that O.J. Simpson, on top of 50 othervery media-intensive trials for the past four or five years, has doneis absolutely convince the public that juries are maneuvered,manipulated. If it takes a thousand people to put 12 people on thatjury, I don't think there's anyone who thinks that's aroll-of-the-dice selection.

MR. ROTHSTEIN: Judge Bork's hypothetical of the innocent man whois sent to the gallows because the jury was fair according to mydefinition, I think begs the question a little bit, because you neverknow if he's innocent or not. You don't know if he's an innocent man.That's the question.

And my thesis is that if you have these procedures that are widelyregarded as fair, over the long run in society, you will have moreaccurate verdicts that do reflect the truth more accurately than ifyou have one elitist person like a judge making the decisions.

MS. GUINIER: I think one of the things that we agree on, althoughwe may interpret the agreement differently, is that our jury systemis a window on the soul of our society. And what we see lookingthrough that window in many ways reflects the cleavages and thefissures in the society itself, not just within the jury system orthe criminal court system.

MR. WATTENBERG: Okay. Thank you, Robert Bork, Lani Guinier, FredCate, and Paul Rothstein.

And thank you. As you know, we enjoy hearing from our viewers.Please continue to send your comments and questions to New RiverMedia, 1150 17th Street, N.W., Suite 1050, Washington, D.C. 20036.

For 'Think Tank,' I'm Ben Wattenberg. END

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