Do We Really Want Justice By Our Peers?
I survey the cavernous jury lounge and the throng of humanity that arrived before me. We all have drawn a winning lottery ticket to participate in our democratic republic. The government-produced film on the privilege and benefit of my civic duty has already begun. When the film suggests jury service is a great way to meet new friends, I join the majority in a welcomed slumber. The film ends with a great sigh of relief from the still-awake audience.
The right to trial by a jury of one's peers is a hallmark of our democracy. When our founding fathers contemplated a framework for our society, they reached back 2,500 years to study the inventors of democracy, the Athenians. Judgment by 'all' of one's peers in ancient Athens amounted to standing in the marketplace and deciding someone's fate by scratching on a pottery fragment. Our forefathers also had first-hand experience with the sort of justice inflicted by a mentally dysfunctional monarch squeezing taxes out of his colonies.
I look around the lounge and sense that there are individuals who believe in the process and are genuinely interested in being chosen. But most are just trying to get through their forced detention on a day they cannot work, pick up their kids from school, or figure out how to make their car payment. So, I sit, surrounded by last year's magazines, pondering the wisdom of a system where chance allegedly chooses the peers who will decide the fate of another peer.
Our host has assured us that all we need as jurors is common sense and an open mind until the end of the trial. This assurance includes the voir dire of jurors to dismiss those who have an apparent bias or conflict of interest.
But wait! Somehow, over the last 30 years, an industry known as jury consultants has flourished. Schooled in the psychology of jurors, practitioners guess which jurors possess a bias that will damage a lawyer's case. Lawyers pay jury consultants a small fortune to win a case rather than find the most objective and fair jurors. They pay to identify jurors with a bias or proclivity to support their clients' arguments. That is often synonymous with finding the most malleable juror who will choose the reasoning that supports his own biases.
Our host suggests that the alternative, a professional jury, is subject to taint and corruption. But does that make sense?
The first obstacle for a lawyer over which he has no control is the assigned judge in his case. Lawyers quickly learn the biases of all their judges, whether a flaming liberal or a heartless fascist. Thus, lawyers construct their cases around those biases. Not so with the jury. Here, they employ jury consultants to orchestrate their rejections of the jurors who are least likely to be swayed by their arguments. The process uses statistical analysis to determine their best shot at winning! Forget justice.
Consider the alternative presented by a professional juror. Choosing a juror using those same jury consultants, except with a different purpose — to find those most likely qualified and objective jurors who would better understand the issue being litigated. Professional jurors would be knowledgeable and licensed in the laws and judicial processes they must use to decide a case. And yes, they are handsomely paid for their expertise!
The taxpayers would bear the cost in criminal cases, but the parties would share the cost in civil trials. What would keep them from being corrupted? Like lawyers and judges, the loss of their license and the challenging, intellectually stimulating profession for which they worked hard to enter would disappear.
As with the selection of a judge, lawyers would be subject to a jury chosen by an impartial computer. While a juror with a conflict of interest could still be rejected, the new professional juror would be committed, objective, knowledgeable, and capable of seeking a just decision.
We already did this with our military. We used to draft our young men to go to war. Most of the draftees were not committed to being warriors. We fought with overwhelming numbers of men and machines to blow the enemy to oblivion. Our enemies used the very same technique. Then, we evolved into an all-volunteer military. The change created a military comprised of those with warrior sensibilities. Forged with a proud sense of patriotism and military education, they take their responsibility seriously. They proudly serve in the best military on the planet. Why is it unacceptable to think that a professional jury pool would not consist of people committed to justice and who take their positions as seriously as our soldiers? It is an idea worthy of debate. A professional juror may be a more just alternative to drafting jurors under penalty of fines and imprisonment.
There would no longer be a need for a cavernous jury lounge. Instead, a computer-selected jury and alternates would show up for their assigned trial. Someone could program the computer to select jurors with experience in the disputed subject matter. This would require the lawyers to construct a case for a more capable, committed jury. Still, the extra work would justify raising their hourly rates.
Oh hell! Did they just call my name over the loudspeaker?
