Previously I’ve pointed out the high cost of justice (The Justice is Too Damn High! – Gawker, the High Cost of Litigation, and The Weapon Shops of Isher) and the consequent failure of the justice system to adequately protect citizens, both the accused and the victims of crime.
What’s free tends to be wasted. And when citizens are commanded to take days off from their work lives for jury duty, their compelled service is taken for granted by a system which pays next to nothing for their time ($15 a day in California, about 10% of the minimum wage in cities like LA and SF.)
As another monopoly government service, justice suffers from the lack of innovation and cost control seen in similarly bureaucratic services like schools. Each juror who has their time wasted could take this up with their city or county reps and agitate for reform, but it’s a small issue compared with the other reasons to vote, and so there’s effectively very little accountability. It’s much easier to claim prejudice or conflict to avoid serving. In many parts of the US, 70% or more of registered voters simply don’t answer their juror summons.
This results in jury pools that aren’t representative of populations. Poorer people, minorities, and young people are underrepresented. Justice for people culturally different from typical juries can suffer because there are fewer jurors likely to understand the cultural milieu of the defendants.
I recently served as an alternate juror for a murder trial — four men charged with gang-related murder with a possible sentence of life without parole. The case took ten days to wrap up, with the jury coming to a unanimous verdict of guilty after a day of deliberations. The cultural milieu was street gangs in a mostly-Latino area of the Coachella Valley (which includes both wealthy retiree communities like Palm Springs and Indian Wells and poor, higher-crime towns like Desert Hot Springs and Indio.)
Over 200 people were called in the first day — which was only to present the tentative trial schedule and ask for any reasons to be excused. Those who didn’t ask to be released could have stayed home and answered an email questionnaire, so around 100 people had one day wasted.
The next day the remaining 100 people arrived at 9 AM and spent the entire day watching a subset of 20 people answer voir dire questions. Hours later six or eight were excused and substitutes were questioned. By the end of the day selection of twelve jurors and four alternates was complete. The 80 or so not selected were excused.
So far we have around 200 workdays wasted, worth about $300 a day in salary and benefits (and costing even more in disruption, with the saving grace that some were retired.) Those 200 wasted jury duty days generated around 200 unnecessary commutes averaging 20 miles round-trip, for a total of 4000 miles, c. 200 gallons of gasoline at $3 a gallon, $600 and lots of greenhouse gas pollution. So that people could sit in a room trapped for hours. Call it upwards of $60,000 of wasted time and materials.
Many jurisdictions have rationalized this process, setting the trial schedule in advance and using email to preselect potential jurors for more extensive voir dire. While judges may worry there won’t be enough jurors after voir dire, the opposite extreme of abusing citizen resources by hauling in a hundred additional people is only possible because their time costs the system nothing (jurors get zero compensation for the first day in California.)
Harm to Justice
Seth Stevenson in the 3-5-19 Slate article “Guilty” (a very long read) writes:
In 1998, I helped convict two men of murder. I’ve regretted it ever since. The case was, in some ways, simple. Twenty-two–year-old Maurice Douglas and 17-year-old Dominic Gibson stood atop a hill in Washington, D.C., on a drizzly night in April 1997. Someone shot down the slope of the hill, killing an off-duty police officer who’d been standing at the bottom.
At first, I thought my job as a juror would be to figure out who’d fired a weapon. Was it Maurice? Dominic? Both of them? But then it became clear that the answer to this crucial question—who killed the police officer?—didn’t matter in the eyes of the court. And as the trial wrapped up, I realized I was about to convict two men of murder, only one of whom I thought was guilty.
The case I was on was similar if a little less ambiguous: the four accused left ample evidence of a joint plan to find and attack a member of another gang for revenge and to uphold the honor of the group and their friends. My jury was largely old, white-collar, and white. The defendants felt justified by honor considerations that made sense in their cultural milieu; like Italian-American communities of the last Prohibition era, their neighborhoods were largely working-class and “respectable,” but with enough criminal, fringe, and gang elements that nearly everyone had friends or relatives involved. Honor and respect (and violence to enforce the rules) were understood and within the community, their activities would be decried and whispered about but not openly opposed. Because police cannot protect everyone from reprisals.
Stevenson’s case also involved “aiding and abetting,” or joint enterprise theories of guilt. This is embedded in English common law and recognized as fair generally: if you knowingly help someone commit a crime, you are equally guilty. Stevenson feels all sorts of noblesse oblige white liberal guilt about convicting the accomplice of murder and putting him away for 30 years; he eventually turns it into a long story about his feelings, coming down against such severe sentences for passive participation in murder.
In the case I was on, the real jurors convicted in one day, and I think rightly so because three of the four showed ample evidence of planning to commit mayhem foreseeably ending in death. The fourth was a bit less certain, but there weren’t any other circumstances that would lead him to join the others in a car with loaded weapons ready that made any sense.
As an alternate I was not involved in deliberations. I think I would have wanted longer to crosscheck the evidence — some jurors may have just wanted to get it over with, but I would have wanted to be sure. Neither defendants nor victim were angels, and it’s possible that under different circumstances the victim would have been the one on trial — but he wasn’t. The tendency of the middle and upper-class jury to not see the accused through a dispassionate lens because of cultural differences wasn’t a factor in my case, though it may have been for Stevenson’s. For poorer people like these living in a lower-class neighborhood, less time and money is spent on the prosecution, and even less on defense. OJ would never have escaped a guilty verdict if this had been the standard.
The jury was provided with a package of evidence (including damning videos of the defendants meeting in convenience store parking lots, changing cars at a school nearby, and a glancing view of the attack on the victim’s house including muzzle flares and ricochets off the street.) No transcript was provided (I was surprised to hear the jury would have to request pieces of testimony to be *read back* to them rather than receiving a full transcript.) The partial and disorganized documentation would have made it a daunting task to really confirm everything, and the system just wants you to go along.
In most jurisdictions, courts prefer jurors hear live testimony once and never get to review it, but they pretend the jury can have pieces read back to them on request. Some verdicts have been overturned on the theory that reading (or reviewing video) of selected testimony is prejudicial, some have been overturned because the judge claimed there was no transcript available. A few places are experimenting with full video and giving the jury complete access to the recordings. It’s ridiculous that people are being (possibly) railroaded for the convenience of the system. This case was only easy because there was so much evidence of a conspiracy to kill. In other cases with limited money for investigation and defense, the temptation to go along with the prosecution quickly to escape jury hell must be enormous.
Heinlein suggested semi-pro jurors in The Moon is Harsh Mistress. This would be a corps of people who serve on juries for pay, possibly rated and qualified by other jurors so the “best” jurors get called more frequently. The schizophrenic attitude of our system where the ideal juror theoretically knows nothing and sees nothing but what the judge and attorneys tell them while supposedly acting as logical evidence-weighers really leads to superficial decisions. Jurors seem to be there only to legitimize the outcome, under duress. The *ideal* is moderately educated citizens free of prejudice, but forced service starts you off with a prejudice to go along to escape.
There have been suggestions to run trials by prepackaging depositions, video testimony, and arguments. Jurors now are not allowed to ask questions (in rare circumstances they can ask the judge to bring up a question on their behalf) or participate at all, so this loses almost nothing (the silly claim that live testimony viewing is somehow more authentic and that video can be prejudicial is belied by the number of times jurors are asleep or too uncomfortable to pay attention because they haven’t been allowed a bathroom break for two hours.)
The prepackaging would edit out the questions where the judge has sustained objections, wasted time could be edited out by agreement with defense, etc etc. The jury members in a complex case wouldn’t lose ten or more days of work, but get to review the evidence in a day or two then deliberate with full access to the record, which is released to the public (with bits redacted by the judge if necessary.) This packaging can be done by paralegals overseen by the judge at a cost paid for by savings in traditional court expenses.
The cost of trials is staggering and the results are sub-par, as is true with most traditional monopoly services. There’s little incentive to streamline or improve. Because full trials are so expensive and time-consuming, most convictions are by plea bargain, itself a blot on justice which forces the innocent to plead guilty to avoid far worse punishment and then puts them at risk of becoming permanently part of the criminal underclass and wards of the state, depriving them and the rest of us of their productive lives.
Streamlining trials and broadening the jury pool to be both more experienced and more motivated by making jury duty voluntary and well-paid will save everyone — prosecutors, judges, defendants, and defense attorneys — the deadly boring hours spent listening to testimony, jury instructions, waiting through recesses, and wrangling over schedules. And reducing the costs of trials will allow less use of plea bargaining and likely a better quality of justice.
Unfortunately, appeals courts have burned judges that made an effort to innovate by overturning verdicts on the pretense that any innovation or variation from traditional evidence presentation may somehow be prejudicial. Thus only broad reforms through legislation or commission guidelines can be adopted without risk to ongoing cases. And there seems to be little interest (as is typical in any bureaucracy) in process improvement that takes time and money now to streamline processing in later years. So we are stuck with a 19th-century process in the 21st century, avoided as much as possible through arbitration and regulation.
One detailed reform proposal for making jury service less wasteful and thus broadening participation for more working people is outlined in “A Juror Bill of Rights: A federal judge proposes a set of reforms to make serving on a jury more attractive,” Atlantic 9-11-2015 by Andrew Guthrie Ferguson:
One of the main complaints about jury service is the perceived waste of jurors’ time. Jurors wait to be selected, wait during legal arguments, wait during breaks, and then wait some more. To be fair, trials present difficult logistical challenges. For example, witnesses, lawyers, and judges have scheduling conflicts, and unexpected legal issues can arise. That’s not to say that time isn’t wasted when lawyers call a large pool of witnesses, ask repetitive questions, and seemingly value the jurors’ time less than their own. Bennett’s response therefore is to streamline the process—a strategy he’s put in practice in his own courtroom….
The institution of the jury trial has been remarkably resistant to innovation. Many courts use paper and pencil for voir dire questions, provide paper copies of exhibits, prevent jurors from asking questions, and ban summaries of evidence (even in lengthy cases). While some federal and state courts have begun experimenting with high-tech courtrooms that use video feeds and electronic displays, many trial procedures haven’t changed for decades. Bennett argues that judges should recognize that jurors’ technological expectations have shifted and different jurors, like Millennials and retirees, have very different learning styles. Visual learners, for example, might process information differently than those who learn by listening. To that end, courts should instruct by adopting all types of teaching tools. Among other innovations, Bennett suggests a visual voir dire using Powerpoint, and electronic evidence for deliberations. In his own courtroom, he also allows jurors to ask questions in all civil cases.
There were hints that the judge in the case I was assigned to was trying hard to limit delays — he appeared to have negotiated stipulations to replace all of the defense witness testimony that might have taken another few days. This may or may not have served the cause of justice — I don’t think it did any harm in this case, but it’s easy to imagine how it might in others. But clearly far too many citizens (200) spent a day or two at the courthouse unnecessarily when at most 40 were actually screened.
More reading on other topics:
Update: California High-Speed Rail Nearly Dead
Regulation Strangling Innovation: Planes, Trains, and Hyperloop
Captain America and Progressive Infantilization
The Great Progressive Stagnation vs. Dynamism
FDA Wants More Lung Cancer
Corrupt Feedback Loops: Public Employee Unions
Jane Jacobs’ Monstrous Hybrids: Guardians vs Commerce