Fixing the Engine of Justice

Opening Statement “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” When Thomas Jefferson wrote those words, he was summarizing his view of the importance of our jury system. What was true at the birth of our nation is true today. Engines didn’t exist then, but anchors did and where an anchor is a fine analogy for something that prevents the drifting of a boat, or the toppling of a structure, an engine keeps something moving, working and useful. Anchors are usually maintenance free, neglect is not an issue. Not so an engine. A single faulty component can cause it to be unreliable, inefficient or inoperative altogether. This to be true of the jury system as well. Jefferson’s quote also reflects the pressing issue of his day, the formation of a new government with a constitution that represented a radical departure from the oppressive British regime. Government at the time was to be feared, and while a healthy fear of government will always be, well, healthy - perhaps today Jefferson would agree with the appropriateness of adding “society,” the other side of that coin, as an entity that must be held to the principles of the Constitution, in part by means of the jury system. That is the thrust of this book, the inspiration for which came to me at 10 a.m. on October 3, 1995 with the words, “not guilty.” It’s been many years since O.J. Simpson walked free from a downtown Los Angeles courtroom, but that case still serves as a reminder of our short attention spans. Why did we follow that trial so closely? For many, it was best reality show ever produced - pure entertainment for those who are thrilled by treachery and violence. For others, it was a chance to see if the justice system would serve as well for a wealthy celebrity as for the common man. For the former group, the verdict was a bonus feature, a surprise ending that only a screenwriter could have envisioned. For the latter, it was a shock to the system, the demolition of the fundamental principle of right and wrong. “Good will always triumph over evil” – gone. “You reap what you sow” – gone. “Justice is blind” – gone. In the first few weeks of the aftermath, we debated the deficiencies of the justice system over coffee. Why so many mistakes by the state? Why couldn’t the judge control the courtroom? Are high-priced criminal defense attorneys really that much better than prosecutors? After all that evidence to consider, how could the jury have come to a verdict in only a few hours? The media had its feeding frenzy. Lawyers, judges and trial consultants like me were asked for our analysis. Then the dust settled on both our televisions and our passions. Later, the case came back to life in the form of the civil trial. This time the jury arrived at the opposite decision, salving some of the wounds left by the criminal trial and giving rise to a flurry of excuses about our American justice system. Of the many offered over coffee or by television pundits, I think it was the following example that bothered me the most: “It’s the best system in the world. It works the vast majority of the time. Leave it alone.” Right, leave it alone. Then along came the Casey Anthony trial and we learn what happens when we leave it alone. The hue and cry about a suspect system started all over again. Enter my engine analogy: You probably own a car. You probably depend on this car. For the sake of the analogy, let’s say the car works most of the time. Ask yourself, wouldn’t you consider such a car “broken?” Or, if not broken, then at least in need of repair? Don’t we expect more of our cars than that they work most of the time? Most won’t even tolerate an unreliable car. If we have any doubts about it getting us from A to B, it goes in for repairs. That’s how demanding we are of our cars, even though a broken car is, at most, an inconvenience. Let’s take the analogy a step further. Suppose the car works most of the time. Invariably, however, those occasions it doesn’t occur when you’re driving at night, in the middle of nowhere and in bad weather. In short, the car breaks down when you need it most. I say this car is definitely broken. Was the O.J. Simpson case the ultimate test of the jury system? I don’t know. Were those murders any more significant than the murders you can read about every day? Definitely not, but the case was an important test, if for no other reason than the fact that everyone was watching. The system needed to work more so then than at any time in recent memory. The legal industry is just that - an industry. As with any industry, there’s a good deal of inertia. As this industry is in large part a public one, inertia is an even greater factor. So, if there’s going to be any action, the general public needs to be in on it, if not driving it. That’s why this book was written primarily with the general public in mind. Action starts with education. Perhaps for some of you, this book will be part of that process. With that consideration, when a legal term is not defined in context (or parenthetically) it appears in bold type with the definition at the bottom of the page. As indicated at the outset, this is a work that started shortly after the Simpson criminal trial, but, for lack of time, languished in the “to do” file for years. During those years, additional experiences stemming from my trial consulting work have contributed to it as well as articles about trials and juries. Since I rely a good deal on my experiences for the positions I take in this book, I’ll digress for a moment to offer a brief summary of my work in this field. I began a career in trial consulting in 1989 with the firm Litigation Sciences, Inc. At the time, it was by far the largest trial consulting firm in the country. Four years later I left to form my own practice, Tunno & Associates Trial Consulting. Briefly, my trial consulting practice includes conducting jury research (mock trials), consulting on case strategy, writing opening statements and closing arguments and coaching lawyers on their delivery, as well as teaching witnesses the necessary skills for their court appearances and creating demonstrative exhibits. A detailed review of my practice is available on www.tunno.com. To the extent the jury system was a key factor in the outcome of the Simpson criminal case, a greater tragedy is the brevity of our collective attention span. If the result of the Simpson civil trial represents some measure of correction of a previous injustice, in no way does it represent vindication of the jury system itself. What ails the system isn’t going to be corrected by the results of a few trials. If your medical checkup last year showed you had a slipped disk, but this year’s checkup showed your heart is fine, you probably still have a slipped disk. Ailments in our jury system represent future problems, future injustices waiting to happen. The cure is not waiting and watching. The cure is not forgetfulness. The cure won’t happen by looking for signs of health. If it’s going to happen, it will come by our focusing on the system’s weaknesses and attacking its problems. Before we talk about remedies, let’s look at the signs of weakness in our jury system. It’s been said that bad news comes in threes. Here are the problem areas: 1. Representation 2. Competency 3. Bias, Misconduct & Nullification