April 08, 2020

The mystery of how the Terry Nichols jury could find him guilty of conspiring to blow up a building but not of intentionally causing the inevitable deaths was substantially solved in the aftermath of its deadlock on punishment — some members, one is all it takes, were less interested in meting out justice than in making a statement.

With a smugness one can only hope was a mirage caused by the glare of TV lights, jury forewoman Niki Deutchman held forth after the sentencing stalemate on a number of topics: the public’s mistrust of the federal government; general concerns about FBI investigative techniques; questions about whether John Doe Two exists and remains at large; the extent to which the defense outlawyered the prosecution. In short, everything but the evidence presented in the courtroom.

This isn’t the first jury that failed to leave its baggage of predisposition at the door, that brought into its deliberations issues utterly irrelevant to the case, that was swayed by the thespian antics of attorneys. But it does raise once again concerns about the composition and conduct of citizen juries.

Every time 12 peers bungle, there are suggestions that the citizen jury system be scrapped in favor of professional, trained juries. In addition to being unconstitutional, that should should not be necessary.

What is needed first is a renewed emphasis upon juries that are fair, not friendly, not easily befuddled. The increasing use of jury-selection experts must be curtailed — defendants are not entitled to juries that are hand-picked to be sympathetic.

But more important is reform of the way juries are instructed on both their duties and on the laws in question.

In most cases, from routine local matters to high-profile national cases, jurors now receive just a few minutes training from the judge on what is evidence and what is not, on their need to disregard what they may have heard outside the courtroom about the case, the defendant, the victim or the attorneys. Clearly, that few minutes is not enough. It cannot overcome the years of indoctrination many jurors get from television and the movies that trials are more about drama, posturing, insinuation, social issues and human history than they are about the facts of the case.

At the very least, jury pools — those large groups of citizens who will be assigned to various cases in their jurisdictions — should receive a solid day of training. Perhaps judges, defense attorneys, prosecutors and legal scholars could combine to present a course in the rules of evidence, with hypothetical situations described, with prospective jurors given ample opportunity to ask questions in an informal setting.

And, the method by which judges instruct juries on the specific laws of the case must be changed; the current method guarantees confusion. In most trials, the bulk of evidence is offered in a fairly straightforward way. Good defense attorneys and prosecutors are careful to see that highly technical forensic and medical testimony is presented in layman’s terms. Then, the last thing the jury hears before it begins deliberations is a jargon-filled, convoluted description of the law by the judge, making it almost inevitable that at least some on the jury will devolve into hair-splitters. Surely, bright legal minds can develop sets of jury instructions that cover points of law in a plain English way.

As troubling as it is when an activist jury lets a killer off lightly, sometimes off totally, it is even more disturbing to consider the other, unknown, side of this two-way street — the innocent who are convicted by juries with a larger point to make. Crusaders have their place, just not in the jury room.

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