The attempted trial of Timothy McVeigh for blowing up the building in Oklahoma City is running into jury-selection problems on a scale that dramatizes the creeping immobilization of the original idea, which was that we were all entitled to be judged by a jury of our peers.
The primary impediment is the unexamined paradox. On the one hand we are committed to the proposition that all jurors, old, young, white, black, gay, straight, are “peers.” On the other hand, we are, in case after case, instructed that if there is any evidence of discrimination against a potential juror because X is black–or a woman; or a man; or Hispanic; or white—then the trial was not just.
The complexity of current practices was illustrated a few years ago when the Supreme Court sent down the ruling that a prosecutor could not exercise his peremptory challenge if its motive was to exclude someone because he was—black. Read white, old, young, whatever. Now here we have one abstraction battling against another. The first is the abstract right of the prosecutor, or the defense attorney, to look at a juror and say to himself: I think that man is going to vote against the kind of case I intend to make against, or for, this particular defendant. So, throw him out. A “peremptory” challenge means, by definition, one not to be questioned; one that puts an end to any argument.
If, then, a defense attorney reasons to himself that a potential juror is white, middle-class, Republican in politics, and very likely a hardliner on the question of law and order, he might very well exercise his veto to keep him away. And the complement obviously also holds. If the prosecutor has up a defendant who is black and young and appealing to maternal instincts, he might be inclined to exercise a veto against a motherly black woman.
The jury-selection process is becoming a very big business. Anyone familiar with any of the fifty books written about the O. J. Simpson trial will know something about the efforts made on both sides to guard against anticipated inclinations of jurors. The very fact of the time and money spent in the process is an empirical challenge to the notion that a jury of one’s peers is an attainable goal in routine circumstances. Consider a hypothetical case: The defendant is black, the jury is 100 per cent black—Scenario One. Scenario Two: the defendant is black and the jury is 100 per cent white. It is entirely reasonable to guess that the likelihood of conviction is greater in the second than in the first situation.
Any judicial reform runs up against the judicial ideologues.
But what then do we do in our quixotic search for a jury of our peers? Insist on one-half white, one-half black? But why not 100 per cent black for blacks, if in search of peers? And the reverse for white defendants?A recent news story spoke of the difficulties in asking juries to adjudicate civil trials involving abstruse questions of finance, accounting, cyber technology, or whatever. One judge, by one account, pulled in a juror and asked her what was meant by “software.” She replied to the effect that software was something soft, in the sense that when you let it fall to the ground, there is no clattering sound. The trial in question was over delicate differences of opinion involving complicated contentions about rights and wrongs that could not reasonably be adjudicated save by men and women familiar with the technological territory.
At the criminal level, a reasonable reform might say: Select juries by lottery. The first 12 names drawn become the jury, unless it is established that anyone of them has a personal brief for, or against, the defendant.
But any suggestion of any judicial reform runs up against the judicial ideologues. It is one more irony of liberal doublethink that on the one hand everything should be fluid in the evolution of constitutional practice, but nothing should change respecting the authority of the courts, and traditional practices in the judicial system. The liberal defenders of the faith very nearly joined Heaven’s Gate in protest against Congressman Tom DeLay’s proposal that constitutionally contumacious judges should be subject to impeachment, though that is not an extra-rational proposal. What will it take to persuade reformers that the jury system, as now practiced, is broke? That it sorely needs fixing? How many O.J.s do we have to acquit before that becomes evident?