Friday, October 28, 2005

Teaching High-Schoolers about the Jury System

Ever since the American Bar Association, thanks to Virginia attorney, and ABA Prez. Robert Grey, started to recognize that the jury system was falling into disuse and disrepair, a number of organizations have started to prepare programs to teach high school students about the jury system.

The American Board of Trial Advocates reportedly spent $400,000 on their interactive CD-Rom based program, Justice by the People. Another program has been prepared by the Texas Young Lawyers Association, entitled We, the Jury. Other programs are out there as well.

There is a common problem to all these programs, in my mind: they all are built around the concept that the justice system, at present, works. This concept is a dis-incentive for people to want to get involved as jurors. If everything is fine as-is, then everything will stay fine if I stay home. The message should be more brutal, but more honest: the legal system cannot be counted on to do justice; too high a proportion of jurors come from too few segments of society; the perspectives, and viewpoints, of other members of society are not brought to bear.

Also, citizens looking at jury duty do not feel empowered. They feel like they are there to sit down, shut up, to speak only when spoken to, and to do as they are told. Not exactly an experience most people are dying to participate in.

These are all part of the same problem: few Americans can give a cogent explanation of why trial by jury is important. In large part, this is because lawyers shy away from discussing the topic of jury nullification. Without explaining that juries are empowered to do justice, when the law is unjust or unjustly applied, leaves the jury a hollow, powerless shell of the institution the Founding generation knew. It is not that juries should nullify in every case, or that they should enter court with a presumption that they are going to nullify. It is simply that they should be aware that they have this prerogative when justice demands it be employed.

Last week, I spoke to four high-school classes at Alief-Taylor High School about the jury system. At each session, a judge participated as well. One judge took great umbrage at my speaking so frankly to high school students. In particular, he was upset by my truthful statement that a trial judge’s interests are not in seating impartial jurors, but in having jurors who are compliant and who will come back in time from lunch. Yet those are the institutional interests the judge represents, no matter how distasteful it may be to a judge to admit it. (One adjunct professor I had in law school put it even more bluntly: "a judge's main interest is in maximizing his golf time." He is now a judge.)

Now, I aim to provoke when speaking to students, to make them want to hear what I have to say, and so do not shy away from being controversial. I believe my remarks represented a point of view students need to hear: that jurors are called to try cases because they represent the only truly independent voice in the American legal system. A judge is there to administer a case, not decide it. The judge is not empowered to decide the case because We, the People do not have that level of confidence in judges due to their institutional biases and lack of independence.

Historically, trial by jury cannot be divorced from the concept of a skepticism towards the judiciary. The history of the jury in the American colonies, and in the United States, is that there are certain judgments that, for good reasons, we do not allow judges to make. "The (jury trial) clause was clearly intended to protect the accused from oppression by the Government . . ." Singer v. United States, 380 U.S. 24, 31 (1965). Moreover, "when juries differ with the result at which the judge would have arrived, it is usually because they are serving some of the very purposes for which they were created and for which they are now employed." Duncan v. Louisiana , 391 U.S. 145, 157 (1968) . Obviously, the jury provides a protection a judge cannot be trusted to provide; Singer begs the question of why? The importance of trial by jury (and the answer to that question) cannot be understood without exploring the dimensions, and necessity, of the unique protections provided by the jury.

And unless the importance of trial by jury is understood, people will continue to ignore their jury summonses. So long as the role of a jury appears to be to act like a rubber stamp, people will continue to stay home -- and jury pools will not be representative, consisting only of the self-selected few who appear.

I believe my remarks gave a ‘real-politik’ view of how the justice system works, and gave the students reasons to respond to a jury summons that a more doctrinaire presentation would lack. I see no value in giving students a view through rose-colored glasses. Instead, I choose to focus their attention on the warts in the legal system, in the hope that they will be inspired to do better than their elders have.


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