I WAS A BELIEVER. A third of our citizens under age 65 may lack health insurance, and our government may bail out bad banks while letting good newspapers rot, but the right to trial by jury was always a bedrock reason I was proud to be an American. So when I received my summons for jury duty last June, I was excited. My friends assured me that my service would be a day of Internet surfing in the spartan, fluorescent-lit jury assembly room.
But I imagined myself a blindfolded Lady Justice, double-edged sword and scales in hand, weighing the evidence Law & Order style.
Two months later, I sat as Juror Number One inside a shabby courtroom in the Multnomah County Courthouse that was decidedly unlike anything out of a serial TV melodrama. The jury box was just 20 feet away from the wide-eyed defendant, who’d been accused of sodomy and unlawful sexual penetration in the first degree. The victim was his 25-year-old niece. As jurors, we waded through three days of evidence that ranged between confusing, boring, and just plain sad. And then, after only eight hours of deliberations, 10 of the 12 of us voted “not guilty.” In Oregon, that’s all the votes you need for a conviction.
But my own verdict? Disillusionment in the first degree. The experience made me want to put our criminal justice system on trial.
Trial by jury is the spine of our democracy, the only guarantee that appears in the body of both the Constitution and the Bill of Rights. “Thomas Jefferson thought that jury service was an even more important civic duty than voting,” says Steve Kanter, a constitutional law professor and former dean of Lewis & Clark Law School. “It’s a critically important way to involve the community in the morality play that is the criminal justice system.”
In a perfect world, each jury represents a cross-section of society, a group of laypeople who will uphold community standards and, most significantly, serve as a check on government power by preventing abuses by corrupt cops, politically motivated prosecutors, and jaded judges. To protect this process and promote frank discussion in the jury room, Oregon law severely restricts post-trial investigations into jury verdicts, with only a few exceptions: the gross misbehavior of a juror (visiting a witness during the trial, for instance), or any coercion or abuse of a juror beyond the normal verbal pushing and shoving that can occur among 12 strangers who are trying to reach a consensus.
“Jury verdicts are very rarely impeached,” says Judge John A. Wittmayer of Multnomah County Circuit Court. “What happens in a jury room is almost sacred.”
MY TRIAL WAS A CLASSIC “he said/she said” loaded with a minefield of intricacies: the alleged victim was a 25-year-old lesbian and a virgin, the defendant was her 47-year-old uncle, and the uncontested acts (oral sex and digital penetration) took place in a friend’s home after a night of drinking at the Lucky Devil Lounge, a strip club in Southeast Portland. The next morning the victim woke up to discover her shirt up and her pants down. She had vague recollections of shoving her uncle’s head away from her body. The defendant said she was the one who initiated sexual contact, pulling his head to her genitals in the middle of the night.
When it came time to deliberate, we settled around a long table in a cramped room for a round-robin download of first impressions. Some of us leaned toward guilty, some toward not guilty, but we bonded over our weariness and stress.
Halfway around the table sat the one juror I already knew I couldn’t stand, a 60-something Marlboro Man wannabe dressed head-to-toe in denim. (I knew because earlier, in conversations unrelated to our trial, I’d overheard him jawing about “retards” and the untrustworthy nature of biracial people.) “Well,” he said when it was his turn to talk, “she did have six drinks. What did she expect was going to happen?” Two other men, both over the age of 50, nodded in agreement. When no one else said anything, I blurted out, “I’m sorry, but I thought that blaming the victim went out with the ’80s.” The nervous coughing and downcast eyes of the other jurors told me I had just typecast myself as the mouthy feminist. Any hope for consensus evaporated quickly amid the repeated reminders from half of the jurors that all we needed “to get out of here” was for 10 people to agree. Indeed, when the final wavering vote left me as one of only two dissenters, the Marlboro Man dismissed me with a wave of his hand. “That’s OK,” he said. “We don’t need you.”
ALL RIGHT, so one negative experience hardly indicts the entire American jury system. But truth be told, the cost, time, and uncertainties involved in jury trials cause the vast majority of criminal and civil cases in the United States to be settled by judges, arbitration, mediation, and plea bargains. Of the 27,345 felony and misdemeanor cases completed in Multnomah County Circuit Court in 2008, juries decided just 336. That’s 1.2 percent. In 18,047 civil cases, juries were used in only 121—0.6 percent.
Regardless, trial by jury remains an important safeguard, Kanter argues. Or as Cate Wollam, a staff attorney with Multnomah Defenders Inc, a private firm that provides the county with indigent defense services, puts it, “It’s simply the system we have, and you can’t throw out the baby with the bathwater.”
My experience, however, suggests that the bathwater (the system) is so murky, we’ve failed to realize that the baby (fair trials) up and left a long time ago. I wasn’t unnerved so much by the final verdict as I was by how my fellow jurors arrived at their decision. Sure, as a 32-year-old liberal woman, my knees are going to jerk when I see older men agreeing that a young lesbian woman “had it coming” just because she had a few too many vodka tonics. But even our seemingly liberal, educated foreman, a bespectacled engineer in his early 40s, suggested that maybe the victim should have just dealt with the matter within her family. It was dispiriting to see just how far short we fell from a “fair and impartial” consideration of the evidence presented before us.
Even more disturbing, aspects of our deliberations seemed legally questionable. My fellow jurors assumed (accurately, it turns out) that, if convicted, the defendant would become a registered sex offender and be sent to prison for a mandatory minimum of eight years as dictated by Oregon’s voter-approved Measure 11. Even if the defendant were guilty, they reasoned, did a crime they deemed minor (compared to what they considered to be “real rape”) deserve that much punishment? They continued to debate the issue even after I pointed out that the judge had repeatedly ordered us not to. Speaking in general, Chief Deputy District Attorney Norman Frink says such actions are “improper, wrong, and actually against the law—a violation of a juror’s oath.” But just because the rules have been written doesn’t mean jurors follow them behind closed doors.
Oregon has the same low standards of proof as Louisiana, the only other state that requires a mere 10 jurors to agree in felony criminal cases. For verdicts in civil trials, the requirement drops to 9 jurors.
Stepping back from the specifics of this case, there is the wider question of lay juries’ ability to interpret increasingly complex evidence and tricky legal principles. (My jury spent at least two hours just trying to figure out what “physical helplessness” meant.) Many civil lawyers I’ve spoken with since the trial say they often forgo jury trials in favor of a judge’s verdict precisely because they don’t believe laypeople are capable of making sense of complicated financial transactions, technical jargon, and scientific evidence. The United States may pride itself on having a judicial system where the prosecution and defense duke it out before a supposedly neutral jury or judge, but other Western countries—as in, all of Western Europe except the United Kingdom—actually employ what is called the civil law inquisitorial system. Instead of a jury of peers, a judge, panel of judges, or panel of judges and lay assessors is actively involved in determining the facts of a case as well as rendering the verdict.
Some American legal theorists have imagined a similar practice here in the form of paid professional jurors. While other legal professionals argue that this would be a disastrous violation of our democratic principles, consider that our highest court is indeed a panel of paid judges. Imagine selecting 12 random people from a MAX light-rail station and asking them to render sweeping verdicts that would affect the nation’s future. Is it really much more sensible to let them decide an individual’s fate?
Nevertheless, 223 years of beloved jurisprudence is unlikely to just disappear with the rap of a gavel. And so the worst-case scenario can still occur: when a confused or biased jury convicts someone who is innocent, resulting in that person’s unjust imprisonment or death. As Whitney Boise, a top-ranked criminal defense attorney with Hoevet, Boise & Olson, PC, puts it, “If you have people [on the jury] who are predisposed against you, there’s no way you can win, despite the evidence.” The only safeguard against such bias is how high the bar of proof is set. And on that count, Oregon has the same low standards as Louisiana, the only other state that requires a mere 10 jurors to agree in felony criminal cases (except for homicide). For verdicts in civil trials, the requirement drops to 9 jurors. In every other state, two to three dissenters means more deliberations or a hung jury. “But in Oregon, it’s close enough,” Wollam says. “‘Close enough for government work’—isn’t that an awful thing to say?”
SO HOW CAN OUR SYSTEM, as it stands, be improved?
To start, we can better equip our juries for their job. A simple improvement would be to standardize what many Multnomah County judges already do: give the jurors written copies of their instructions and allow them to take notes. Judge Wittmayer points to Arizona, where the courts are among the leaders in American jury innovation. Currently the state is testing practices like making short opening statements to the jury pool to better ferret out bias; providing preliminary instructions on the law; allowing interim closing arguments to help jurors better understand significant pieces of evidence; and even allowing jurors to ask questions of witnesses during the trial.
But the dark cloud hanging over Oregon courtrooms remains the failure to mandate unanimous verdicts. “It allows for less-than-complete deliberation and less moral clarity,” says Kanter. “I think it’s unconstitutional.” However, just last October, the US Supreme Court declined an appeal of a 10–2 guilty verdict in an Oregon rape trial, thus refusing to reopen the matter. So, for the foreseeable future, our only recourse would be a ballot initiative. Barring that, the burden of conscience remains on us, as jurors, to put aside the urge to get back to work or make the tip-off of the Blazers game, and, instead, to give each of our peers a voice, to think critically, and to exhaustively discuss the facts.
Most importantly, we need to do our duty. According to Multnomah County Circuit Court administrator Doug Bray, approximately 70 percent of those summoned to serve on a jury respond, but after disqualification, excusals, and deferments, only about 20 percent actually serve. An oft-quoted joke is that juries are filled with people who are too stupid to get out of serving on them. But if our juries are truly meant to uphold community standards, we need them to represent all citizens—all ages, genders, races, and walks of life. As Oregon Attorney General John Kroger put it, “At the end of the day, the jurors are the ones who must decide a just outcome, and that’s a pretty serious responsibility.”
ADMITTEDLY, I’m not a professional judge. But even after hearing out the numerous local legal professionals who defend our jury system, my verdict remains: I am no longer a believer. Should I end up in a trial, as plaintiff or defendant, I’ll take the judge over a jury of random people. That said, I understand that real trials aren’t tidy episodes of Law & Order. So the next time I’m called for jury duty, I’ll rally my enthusiasm—or at least my sense of duty. If I were on trial, I’d want to look into that jury box and see someone just like me.