Local Opinion: "Professional" jurors would bring more credibility to verdicts

Donald Trump is facing the prospect of multiple jury trials possibly before and after the 2024 general election. A major apprehension of many is that a rogue juror with unshakable loyalty to him could cause a hung jury on cases in which prosecuting attorneys have proven his civil liability and/or his criminal guilt.

That frightening reality should make us stop and think, more specifically, about the validity, reliability, and rationality of our current jury system — which unfortunately works on the breathtakingly naïve, erroneous and dangerous assumption that the average citizen has the required capabilities to do that vital job properly.

To wit: In Arizona, the baseline competence for jurors is that they “ … are not currently adjudicated mentally incompetent or insane.” Could there be a lower bar?

Jurors have always been a random sampling of individuals who have been tasked with a very weighty responsibility: rendering verdicts in complicated civil and criminal cases that often demand solid grounding in science, finance/economics, psychology, etc. Why has our society, and more particularly our legal system, been comfortable with assigning this critical responsibility to those who may not have the appropriate education or critical thinking skills required for that assignment? How can these people thoughtfully analyze, no less adjudicate on complex evidence, factual subtleties, and judges’ detailed instructions? The consequences are often predictable: people who don’t understand facts and evidence vote their emotions and prejudices.

Adding to the problem, those serving on juries are sometimes required to take weeks away from work and family. It is hard to imagine proper decision-making not being adversely influenced by the desire to return to a normal life. I am unaware of any other professional responsibility where workplace ethics, employee competency, and fairness to the consumer are deemed as unimportant as in our jury system. This reality leaves us to ponder that someday our lives and livelihoods may be in the hands of inconvenienced, disgruntled, and incompetent “peers.”

Speaking of “peers,” contrary to popular belief, nowhere in our U.S. Constitution or in the 6th and 7th Amendments is there any mention of a jury “of one’s peers.” The only directives are that there be a jury and it be impartial.

An added unfairness of the jury system is that it can be skillfully manipulated by rich defendants’ lawyers who can pay for high-priced jury consultant firms. These companies advise them how to select potentially persuadable jurors: those who will be swayed more by emotion than facts.

Two examples illustrate my point:

With the O.J. Simpson jury in 1995, for example, it was reported that none of the jurors regularly read a newspaper, but eight regularly watched tabloid TV shows; five thought it was OK to use force on a family member and nine thought that Simpson was less likely to be a murderer because he was a professional athlete! Were these the people even marginally competent to evaluate crucial DNA evidence?

In the first Merck Pharmaceutical trial in 2005, where the company was found liable for the death of a man who used its product Vioxx, accurate evaluation of scientific evidence was at the crux of the company’s defense. While other issues may have justified that verdict, for people who care about justice, it was mind numbing to hear jurors say that much of the science in the trial sailed right over their heads. Indeed, one juror said, “Whenever Merck was up there, it was like Wah, Wah, Wah.” “We didn’t know what the heck they were talking about!” This same person said that because the chief executives gave videotaped testimony instead of coming to the courtroom that this was “Most definitely an admission of guilt!”

Despite my criticisms, many in the legal world argue that juries “get it right” most of the time. But that does not excuse the injustice of defendants who are wrongly convicted or acquitted.

We can do better.

Properly trained and certified jurors would be a good starting point.

Professional jurors would want that job. They would undergo in-depth education and certification for this work. In addition to relevant legal training, they would be instructed how to, at trial, disregard issues that are speculative, improper, prejudicial, and irrelevant. They would learn the dynamics of proper deliberations based on judges’ instructions. After serving on many juries, their skills would sharpen.

They would benefit the mechanics of the court system itself. Gone will be the waste of time and tax-payer money rounding up thousands of people in jury pools along with lengthy selections processes.

I was on a jury many years ago, for a case that was clearly aggravated assault. A man was shot at seven times (amazingly not hit) — and, trust me on this — while minding his own business. Three of the eight jurors dug in their heels affirming that they would have also shot at the man under the same (relatively non-threatening) circumstances. They were adjudicating on emotions rather than facts. As foreman, I could not persuade them differently. The result was a compromised verdict of disorderly conduct … effectively equating the defendant’s actions to playing music too loud!

The current jury system is deeply flawed and demands reform.