The Criminal Jury System Is the Best Means to Secure Justice

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The Criminal Jury System Is the Best Means to Secure Justice

Barbara Allen Babcock

The 1995 O.J. Simpson verdict, in which the former football star was acquitted of murder, led to numerous calls for jury reform, or even elimination of the criminal jury system. In response, Barbara Allen Babcock, a law professor at Stanford University and the former director of the Public Defender Service in Washington, D.C., wrote a defense of juries and the adversarial system of American justice. Acknowledging that juries do occasionally acquit a guilty defendant based on prejudice or misguided community standards, she notes that conviction rates have been quite consistent for fifty years. Drawing on her own experience as a public defender, she commends juries for their fairness and wisdom, even in cases that she lost. In addition, she takes on certain proposed reforms, explaining that unanimous verdicts and peremptory challenges, which are under attack, are integral parts of the jury system. For Babcock, reforms could actually make juries more unpredictable and less fair. Finally, she suggests that the real problems lie elsewhere, in overworked and unprepared defense counsels and in the vast discrepancy between the rich and the poor when it comes to defending themselves in court.


Barbara Allen Babcock, "In Defense of the Criminal Jury," Postmortem: The O.J. Simpson Case, edited by Jeffrey Abramson. New York: BasicBooks, 1996. Copyright © 1996 by BasicBooks. Reproduced by permission of HarperCollins Publishers, Inc.

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I personally would have a reasonable doubt, but it's true there is overwhelming evidence that he is possibly guilty.

African-American man interviewed on TV shortly before the verdict in People v. Simpson

These words reveal the tension in our jury system: "Overwhelming evidence" may lead only to the "possibility" of guilt; in its face, the jury may still entertain a reasonable doubt.

Even without a reasonable doubt, a jury may decide that a defendant deserves freedom. This is the doctrine of nullification—an unspoken possibility in every case. The law itself is nullified, not for all time but as it applies to a single individual. A father who steals to feed his children is the classic example.

In modern times, protestors against government policy, accused of destroying property or of trespassing, have asked the jury to nullify in order to make a political statement. Some have suggested that the mostly African-American jury in the Simpson case was nullifying the law in order to send a message about the racism of the police, and the alienation of black America.

Juries Do Make Mistakes

Without nullifying, juries may simply make mistakes, may be swayed by passion, prejudice, or sympathy to acquit a guilty person, may misread the evidence, or misconstrue their duty. The first Simpson jurors to speak out seemed to say that they took quite literally the judge's instruction that they might discount altogether the evidence of anybody who lied to them in some respects. Thus, disbelieving the police who swore they failed to obtain a search warrant because Simpson was not a suspect, or who made a sweeping denial about using racial epithets, the jury may have mistrusted everything else these officers said. In effect, the lay people may have enforced the exclusionary rules that many judges no longer follow.

Another reading of the Simpson verdict is that the jurors misunderstood reasonable doubt and demanded that every piece of evidence meet that standard. Correctly applied, reasonable doubt requires only that, looking at the case as a whole, its central elements must be proved to the ultimate level.

Even as individual jurors come forward, however, and as books on the trial accumulate, we will not fully understand the dynamics that led to acquittal in this case. In the ancient parlance, the verdict is "inscrutable." Like the ballot, it is the people's announcement of a result, not a set of findings of fact and conclusions of law such as we ideally require from judges when they decide cases.

Losing Faith in Juries Would Be a Bigger Mistake

While acknowledging its inscrutability, many people (I am one) believe that the Simpson verdict was not true or accurate. Yet it would be a mistake to turn our frustration and anger upon the criminal jury itself. Far worse than letting a guilty man go would be losing faith in, or working fundamental changes on, this most American of institutions.

Before the Simpson verdict was in, partly in response to other notorious cases involving unpopular jury results (the acquittal in the first Rodney King beating case, the hung jury in the Menendez parricide), legislative moves were afoot to abolish the unanimity requirement, to reduce the number of jurors, and to eliminate the peremptory challenge. The basic problem with theses proposals is twofold: they wrongly assume that the jury system is broken; they could profoundly change its operation in unpredictable ways.

Conviction Rates Are Consistently High Despite Notorious Acquittals

Behind the bold proposals for jury reform is the bald desire for more convictions. Yet proponents of change do not recite the current conviction rates, which have remained constant—in the 60 to 70 percent range—over the last fifty years. These are the conviction rates in jury trials—most cases (as high as 90 percent in many places) end in conviction on a guilty plea.

Always attending these high conviction rates have been startling acquittals in a few spectacular cases, defined by the horror of the crime, the celebrity of the accused, or a combination of both, as in the Simpson case. Sometimes the lawyers are famous too and almost always, those who win in the face of overwhelming evidence have money to pay for the best defense.

At the turn of the nineteenth century, Lizzie Borden of Fall River, Massachusetts, was accused of killing her parents with an axe. Her case had these now familiar ingredients: powerful circumstantial evidence, first-rate defense lawyers, press from all over the world, a sequestered (though all-male) jury, who acquitted after twenty minutes of deliberation. No one wanted to believe that a woman of good family would be capable of such brutality. Her lawyer might have been taxed with playing the "lady" card.

Another example, this one from California more than a hundred years ago is the case of Issach Kalloch, who shot an unarmed man in full view of his fellow workers, and of people on the street who saw the killing framed in a large window. His victim was the editor of the San Francisco Chronicle. A jury acquitted Kalloch on a sort of justification/temporary insanity theory because the paper had printed scurrilous stories about his father.

These are but two of the historical instances of notorious mistaken verdicts, or verdicts that express community sentiment that is, at best, extra-legal. We have always, from the foundation of the Republic, been willing to sustain the risk that the jury will be wrong. Nothing in the Simpson verdict should change that. For every jury that goes awry, there are a hundred that do the right thing. Lawyers on both sides of the criminal system, former jurors, and most academics who have studied juries, attest to this fact. While the Simpson case was in its long progress, for instance, a South Carolina jury convened for several weeks and returned a verdict of life imprisonment rather than death for a young woman who killed her two little children. It was fitting that a jury should decide this case because no judge has the same power to speak with the voice of the people—to forgive and to redeem.

Faith in Juries Comes from Personal Experience

I myself believe in juries based on my experience as a young lawyer when I tried many cases, losing some and winning others, representing mostly African-American men before mostly African-American juries in the District of Columbia. Though losing a verdict is one of life's crushing blows, I felt in virtually all the cases I saw close up that the jury made a correct, and wise, decision. More than occasionally, I found that jurors who started with one predisposition changed their minds through the deliberative process.

My trials did not make the papers, nor were there cameras in the courtroom. Nor was any jury in my experience so mistreated as the Simpson jury—indeed I suspect that the mismanagement of the jury helped to produce the acquittal. This brings me to the second point about why this case should not occasion sweeping changes in the jury system: the point of unintended consequences. We do not know what makes juries work well most of the time, which of its features are necessary to its proper functioning.

The jury comes to us with certain historical attributes: the mystical number twelve; the absolute power to acquit without accountability; the judicial filtering of the evidence heard; the requirement that jurors come from the geographical community where the crime occurred; and that they engage each other to the point of total agreement. No one knows which, if any, of these attributes is essential to the integrity of the institution.

Judge's Mistakes in the Simpson Trial

We do know, however, that a jury should be assembled once for a single purpose, that it should be composed of strangers who know each other only through their deliberations. This fundamental feature of a jury was violated in the Simpson case by a starstruck judge who lost control of the situation. He caused the jury to spend many hours waiting while he heard and reheard lawyers' arguments, took time off to engage celebrities, and through it all, patronized the jurors, conveying by his tone and manner that their time was not important. He should have taken drastic measures to move the trial along, for instance, by hearing motions in the evenings or holding court on Saturdays. Instead, by his leisurely approach, he violated the very premises of the jury system and opened up the possibility that this jury would become a little band with its own agenda.

Judge Ito, like most judges, was largely on his own in deciding how to deal with this jury. In virtually all jurisdictions, the statutes and common law on the selection, care, and instruction of juries are a hodgepodge of rules adopted piecemeal, often in reaction to unpopular verdicts, without concern for how the system as a whole will be affected. A recent voter's initiative in California, for instance, removed the right of lawyers to question potential jurors. By the report of both prosecutors and defenders this law hampers efforts to identify and remove erratic, unstable jurors who can prevent effective deliberation, and may even cause the jury to hang.

The opportunity for lawyers to question prospective jurors (and to follow up troubling answers with more questions) may help select jurors who can return unanimous verdicts. In a similar role, the peremptory challenge allows each side to eliminate the extremes against its position, leaving jurors with middling attitudes who can reach consensus. Yet a move is on, which I will discuss, to abolish these challenges. This is another instance in which reformers neglect the central point that the jury is a collection of interconnected practices and conventions.

Another of the piecemeal jury "reforms" urged in the wake of the Simpson case and other recent unpopular verdicts is to allow nonunanimous jury decisions. As it turned out, of course, the Simpson case is not particularly apt as an example for the reformers, because the jury was unanimous for acquittal. Even had it hung along racial lines, as many pundits predicted it would, the result of permitting nonunanimous verdicts would still have been to acquit Simpson.

Advantages of Unanimous Verdicts

But those who are seizing this moment—in which a famous athlete may get away with murder—to push for majority verdicts risk changing the very nature of the institution. First and most important, a group that must bring along those who see the world differently is more likely to deliberate and discuss the evidence thoroughly. This point is crucial because we have entered a period in which white women and minorities are finally being summoned to jury service in new numbers. In some places, our juries are as diverse as our communities. This is the wrong time to provide for simply outvoting the newcomers. In other words, if there are two or three minority members on a jury of twelve, a system that required that they be convinced to join the verdict, which is our system, seems far better than one in which they serve only to be outvoted.

Finally, a unanimous verdict is a major accomplishment, and carries with it moral authority that a split decision lacks. This point is easily understood when we talk about multi-judge appellate courts, and applies even more forcefully to a judgment from the people. Of course, the Simpson verdict shows that unanimity does not guarantee popularity or credibility, yet surely a 10-2 result with the jury divided along racial lines would have been worse.

My devotion to the unanimity requirement began many years ago when one juror in a case I defended held out for three days against the other eleven and finally convinced them to return a not guilty verdict. Oddly enough, this was the only time in which I put the first twelve people in the box, i.e., I did not use any of my peremptory challenges.

Importance of Peremptory Challenges

That experience does not, however, lead me to think that we should abolish peremptory challenges—another current suggestion for "fixing" the jury. The move has gathered currency because the use of the challenge to strike off white women and minorities has led the Supreme Court to create a sort of modified peremptory. Neither side may challenge a juror on the basis of race or gender. In effect, the Court has created a juror's right to serve. The difficulties of administering jury selection with this modified peremptory challenge as well as the time it can take has roused a call to abolish peremptories altogether.

To reiterate, the parts of the jury fit together, and lopping off one part may cripple it in unforeseeable ways. The function of the parties in striking off biased extremes is interconnected with the unanimity requirement. A second reason for preserving the peremptory is its importance to defendants: they should not face juries that contain people they fear or hate, even for irrational reasons. This is especially true now when long prison sentences are the norm.

Rather than reactive legislation undermining unanimity or the peremptory challenge, a comprehensive statute that preserves the jury's fundamental attributes would be a good outcome of the Simpson verdict. Such a statute should include, for example, provisions regularizing selection practices, including a requirement of juror questionnaires tailored to the facts of the individual case, provision for expedited procedures in cases of sequestration, and for more reasonable compensation and treatment of jurors than we have now. It might also reduce the number of peremptories on both sides, or even eliminate them altogether for the prosecutor, who with a broad general interest in justice should be willing to abide the verdict of the people.

Inadequate Defense Is the Problem, Not Juries

While improvements such as these would be welcome, the mechanics of juries are not at the fault line of the criminal justice system. Especially in the cases that most need community understanding—where defendants are poor people, often racial minorities, charged with horrendous crimes—most juries never have a fair shot at deciding because the defense lawyer is inadequate. When this is the case, the arguments about unanimity, and its connection with peremptory challenges, and whether peremptory challenges are necessary, are all beside the point. Many years ago, Supreme Court Justice Hugo Black wrote that there can be no equal justice when the kind of trial a man gets depends on the amount of money he has. But Black's admonition still only states a hope.

When we think about the Simpson case, we should consider as well People v. Mayfield, tried a few years ago in another Los Angeles court. The state's highest court upheld the conviction. Like Orenthal J. Simpson, Demetrie L. Mayfield was a black defendant accused of killing a woman he knew well and a man who appears to have been in the wrong place at the wrong time.

That is about where the similarity ends. Simpson had a team of a dozen lawyers plus forensic pathologists, criminal investigators, and an army of paralegals to defend him. When reporters asked the price tag for all these people, the knowledgeable answer was another question: "How much does he have?" Whatever the final dollar amount, perhaps discounted for the free on-camera advertising, the verdict shows the results of hundreds of hours in preparation and translates into millions of dollars.

Mayfield's attorney, by contrast, practiced alone. According to court records, his entire preparation for the case took forty hours. The attorney conducted only one substantive interview with his client—on the morning the trial began.

Lawyers who appealed Mayfield's conviction argued, as is common in capital cases, that the low level of representation violated his right under the Constitution's Sixth Amendment to the "effective assistance of counsel." Because a series of Supreme Court decisions has lowered the standard for what effective assistance means, those claims are increasingly difficult to make. In Mayfield's case, appellate judges conceded that the defense was less than zealous but concluded that no harm had been done. The evidence was so overwhelming that no defense would have helped much anyway, the courts ruled. Mayfield now sits on Death Row.¹

1. On November 7, 2001, the Ninth Circuit Court of Appeals struck down Demetrie Mayfield's death sentence, based on inadequate representation.

Too Often, the Deck Is Stacked Against Defendants

His case is not necessarily the most disturbing—no obvious lawyer errors mar the record. There are many worse cases, some in which appellate courts are forced even to overturn convictions. Indeed, our entire system, with its understaffed prosecutors, overcrowded court dockets and harried public defenders, survives only because of a seldom acknowledged bargain: we provide extensive rights to criminal defendants in theory, but do so in a system that allows mostly the affluent to employ those rights in practice.

If every accused defended himself as Simpson did, the criminal justice system would rapidly collapse. I am not suggesting that every defendant should be provided the resources to press as far as Simpson did. But there is, or should be, something in between the rich man's defense and hardly any defense at all.

When the Simpson case started, I thought that it would provide a popular primer on our American criminal justice system. But as it turned out, the case was no good as a prototype, nor does where it went wrong tell us anything about the changes we should make. It would only compound the errors if this freakish episode led us to transform the way that juries operate.

The criminal jury, right or wrong, is still one of our most precious and characteristically American institutions. Like universal suffrage, with its vote for every citizen regardless of class, race, or gender, the interposition of a jury drawn from the community between the accused and the state is fundamental to our kind of democracy.

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The Criminal Jury System Is the Best Means to Secure Justice

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