Juror Competency – Part I

Following is an excerpt from chapter two of my book, Fixing the Engine of Justice:  Diagnosis and Repair of Our Jury System.  Chapter two discusses the problems with juror competency and will be followed in the near future by Part II, recommendations for a solution.

Competency is not a significant issue in every trial.  In many trials, the issues are comprehensible to all jurors.  The problem is that the issues in many trials have become increasingly complex, surpassing the comprehension of many jurors.

If jurors don’t understand information, they tend to disregard it.  This has been shown to be the case in the jury research projects (mock trials) I have conducted, as well as in post-trial interviews. Mock trials are usually an eye-opener for the client attorney.  By the time the study is conducted, the attorney has been living with the case for some time, perhaps even years.  He or she knows the case intimately.

The deliberation component of the mock trial is when the client attorneys get the first data on how jurors react to the case and why.  The clients sit behind one-way mirrors, watching the process unfold.  What stuck with the jurors?  What drove their opinions?  What arguments were persuasive enough to change the positions of other jurors?

It frustrates them to learn that a key fact is completely overlooked or, for that matter, how jurors simply make up facts or use their life experiences to supplant case facts.  This is a phenomena that is also discovered in post-trial interviews with jurors, so there is no reason to believe that the actual trial causes jurors to behave altogether differently than they do in research studies.  If that were so, the research studies would be valueless, and over the many decades the tool has been used, quite the opposite has been proven true.

The O. J. Simpson criminal trial serves as a real-life example of this issue.  Consider the strongest evidence against O. J. Simpson in either the criminal or civil cases, the DNA evidence.

DNA evidence is conclusive evidence.  If there were one molecule of O. J.’s blood anywhere at the crime scene that couldn’t be reasonably accounted for in some other fashion, he’s guilty – game over – period.  If there were one molecule of blood from either of the victims, especially Ron Goldman, on anything owned by O. J. Simpson, he’s guilty.

Furhman wouldn’t matter. Views of the LAPD wouldn’t matter.  Gloves fitting or not wouldn’t matter.  “Ugly ass” shoes wouldn’t matter.  That should have and would have been the end of the story, but not if you didn’t understand the scientific significance of DNA evidence, as was the case with one Simpson juror who equated DNA evidence with blood typing.  You might, as I believe he did, focus on something you could understand, such as the glove that looked as if it didn’t fit, the character of Mark Furhman, or the argument that all the blood evidence was either planted or contaminated.

You might have done what most jurors do, make the job as easy as you can.  You might take the simplest, easiest path to a decision.  Not consciously, perhaps, but you might nevertheless take that path. You may have bought Simpson attorney Barry Scheck’s argument in that case.

The point is that the jury either bought it or completely ignored the DNA evidence and, in the process, ignored the most important evidence in the case.  There is no middle ground.  The argument was central to Simpson’s defense.  If the jurors didn’t buy it, the only alternative was a conviction unless they ignored it in favor of other evidence they could better understand, for example, the glove or whether they trusted Mark Fuhrman or LAPD.  Did Scheck and the Simpson trial team take advantage of a dumbed-down jury?

The question is whether all jurors are capable of deciding all cases.  I don’t believe this is true and I believe the solution lies in a system of matching juror capabilities to the requirements of cases in much the same way as companies and institutions match job applicants’ capabilities to job requirements. As an example of some of this issue, the Simpson case works because of the exposure it provided and the resulting familiarity to most Americans, but it’s not an isolated incident.

As with most trial consultants, the majority of cases I work on contain highly complex material.  They often deal with technologies such as microchips, computer software, and electronic inventions of all types, as well as chemistry and biochemistry, including DNA technology. Typically, much of my work in such cases is directed toward developing methods for simplifying the teaching of these technologies.  Even so, much of it escapes the most capable jurors, or at least the most capable of the ones who survive the dumbing-down process, and many jurors don’t get any of it.

If we want to look at the root of this problem for the purposes of attributing blame, we should start with our education system. We don’t adequately support that system, which is the same as saying we don’t support our children or the future of our country.  We graduate students who can’t read the classified ads in search of the few jobs for which they’re qualified.  The complexity of trials is increasing, but jurors’ comprehension is not.

We are dumbing down the entire nation. Most of us are familiar with Jay Leno’s “Jay Walking” segment on The Tonight Show where Leno took a camera and microphone to the street and asks passersby what they know about a particular subject. The topics appeared to be chosen because they are something everyone should know. “Double Jeopardy” it wasn’t. These questions were dirt easy. In what country is the Panama Canal? Where is the Great Wall of China? How many stars are on the American flag? Leno targeted adults in the eighteen-to-thirty-year-old group.  These weren’t actors or people recruited for their stupidity.  They just happened by.

Their appalling inability to answer the questions, combined with the apparent ease with which Leno was able to find ignorant people, is the source of humor for the segment.  Is there a word for hilarious but frightening?  These people weren’t just fodder for The Tonight Show.  They and lots more like them were also potential jurors.

We are not the best and the brightest of the industrialized nations, and we are paying the price for it in our jury system. Mark Twain said, “We have a criminal jury system which is superior to any in the world; and its efficiency is only marred by the difficulty of finding twelve men every day who don’t know anything and can’t read.”

Unfortunately, if finding twelve people who fit Twain’s description is the task, it’s becoming less and less difficult, a point that apparently prompted radio jocks John Kobylt and Ken Chiampou of The John and Ken Show on KFI-AM in Southern California to take matters into their own hands.

While the 2008 corruption trial of Orange County Sheriff Michael Carona and his wife, Deborah Hoffman, was pending, the radio show hosts featured a daily segment, “Taint the Carona Jury Pool,” during which they encouraged listeners to lie in order to get on the jury and then convict the defendants.  They also played audio recordings implicating the defendants.

Kobylt provided the reasoning:  “The truth is I don’t trust juries. I don’t trust twelve people who aren’t smart enough to get out of jury duty. We’ve talked to some jurors and they’re insane. There’s a lot of crazy people out there and many of them end up on juries.” (Stuart Pfeifer and Christine Hanley, “Radio Show Tainting Jury Pool, Ex-O.C. Sheriff Says,” Los Angeles Times, April 17, 2008, B5.)

Was the Casey Anthony case an example of crazy jurors?  This was not a case of a hung jury, so it is improbable that all twelve were nuts, but for me, the question of competency was front and center in that not-guilty outcome.

In post-trial interviews, we learned that a key to the jury’s decision was that the prosecution could not prove with certainty the exact cause of death.  My response to those jurors is this:  the cause of death was homicide!

Let’s put this in perspective.  If you commit murder, dispose of the body, admittedly lie about it successfully enough that the body isn’t discovered until after the remains have decayed beyond science’s ability to accurately determine the specific cause of death, and then are fortunate enough to get these twelve people on your jury, you walk.  As ridiculous as that outcome was, I can top it.

Next is a case that makes the Anthony jurors look like Nobel Prize winners. Raise your hand if you remember the 2003 trial of Robert Durst in Galveston, Texas.  I thought so.  Not too many hands outside of the Houston/Galveston area.

Three years prior, Durst, sixty, a member of a wealthy real estate family, had fled New York when police renewed an investigation into the 1988 disappearance of his wife, Kathleen, who has never been found.  He was also under suspicion for murder of a friend, Susan Berman, who police sought in the investigation of Kathleen.

Days after police notified Berman they were about to question her, she was found shot dead.  That’s merely the backdrop for this case. While hiding from the New York police in Houston, Durst assumed the name of a woman he once knew, disguised himself as a mute woman, and later admitted to killing his neighbor, Morris Black.  Further, he admitted dismembering Black’s body and throwing it in Galveston Bay, claiming he did so with the assumption that the police would not believe his story that Black had found Durst’s gun, which went off as they struggled for it.

As fiction authors are fond of saying, “You can’t write this stuff,” but as strange and improbable as the defense was, it was the jurors’ rationale for their not guilty verdict that was most astounding. “It doesn’t matter if I thought he was guilty or not,” said juror Chris Lovell. “I didn’t want to convict this man on what I thought.  I wanted to make a decision on what I knew based on the evidence.” Here’s a tip, Chris.  If you had the impression that Durst was guilty before the trial started, you would have had the obligation to tell that to the court and be dismissed as a result.  However, if you thought he was guilty at the end of the trial, it means you came to that opinion based on the evidence and the prosecution proving its case.

Lovell continued, “One thing that influenced my decision, and the jury and I discussed this from the very beginning of this trial, the defense told us a story, and they stuck to their guns all the way through.” So, Chris, as long as the defense sticks to its story, no matter how unbelievable it might be, that’s a reason for an acquittal?

Got it.  But wait.  That doesn’t square with what other jurors said. Durst’s story was too unbelievable to consider, according to juror Eldridge Darby. “Durst had holes in his story. That’s why we had to separate his story out from the facts.”  Another juror, Robbie Claris, confirmed Darby’s account.  “We took Mr. Durst’s story completely out of the picture.  Based on the evidence, it just wasn’t there.”

Got that?  The defendant’s story was so unbelievable that the jury didn’t take it into consideration and set him free as a result. Clearly, juror competency is not an easy fix.  Creating more competent jurors is to raise the education level of virtually all Americans.  It’s a great goal, but it isn’t a solution we can count on or wait for.  The change then has to come from the other end, the trial end, the jury selection and screening process discussed in chapter six of Fixing the Engine of Justice.

Read Juror Competency – Part II, and more about the book on this website. 

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