The jury's dilemma: playing God in the search for justice: solving the problems lurking in America's courtrooms.

• Author: Castaneda, Juan

Lives are lost and won in the courts, lost and won in the law--everyday, everywhere ... But in the jury room, the thought cannot be avoided, since there you learn that justice doesn't merely happen (neatly, reliably, like a crystal taking shape in a distant vacuum); justice is, rather, done, made, manufactured. Made by imperfect, wrangling, venal and virtuous human beings, using whatever means are at their disposal. (1)

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THE Sixth Amendment to the United States Constitution guarantees that, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." (2) In fulfilling this precious right, nearly one million Americans serve as jurors in more than 80,000 jury trials in the country every year. (3) In 2004, the American Bar Association ("ABA") decided that it was time to "begin paying closer attention to ways we can support the juror so that each empanelled group will be a true representation of the community, have the tools and processes necessary to receive evidence, deliberate constructively, and deliver a just verdict confidently." (4) As a result, the ABA President at that time, Robert Grey Jr., launched the American Jury Initiative to "strengthen the jury as a democratic institution and enhance Americans' understanding of its role in our system of law and government." (5)

As part of this initiative, President Grey formed The American Jury Project and the Commission on the American Jury. The American Jury Project, has recently completed drafting a set of nineteen principles for juries and jury trials that range from the obvious--preserving the right to jury trial--to the more charged--the trial court's prompt undertaking of inquiries into allegations of juror misconduct. (6) The preamble emphasizes dual goals: the preservation of the jury trial and the enhancement of juror participation. In effect, the driving force behind the reworking of the jury system is the need to effectuate practical changes to its functioning and management. As Supreme Court Justice Sandra Day O'Connor stated, "[o]ur nation relies on the determinations of juries of our peers in both civil and criminal trials ... because you are the ones capable of deciding who is to be believed and what the facts are." (7)

The twenty-three-member committee of the American Jury Project has been true to its mission by proposing common sense solutions to some of the jury system's most persistent problems. (8) Three of the biggest problems in serving as a juror include: jurors' expenditure of time and money, under-representation of a broad section of society in the jury pool, and a lack of understanding of the facts and the law by empanelled jurors. The Project has addressed these issues in simple terms. For example, the "time required of persons called for jury service should be the shortest period consistent with the needs of justice" and "persons called for jury service should receive a reasonable fee." (9) To counter the critique that juries contain the proper smattering of the educated and uneducated, the employed and unemployed, men and women, thus excluding the rich, educated, and professionally employed, the American Jury Project committee has proposed that, "[c]ourts should collect and analyze information regarding the performance of the jury system on a regular basis in order to ensure the representativeness and inclusiveness of the jury source list." (10) Moreover, "[a]ll automatic excuses or exemptions from jury service should be eliminated." (11) Finally, to resist jury ignorance, the committee proposed that, jurors should be allowed to take notes during trial, and they should be provided with identical trial notebooks which may include such items as the court's preliminary instructions, selected exhibits which have been ruled admissible, stipulations of the parties, and other relevant materials not subject to genuine dispute. Additionally, jurors should be permitted to submit written questions for witnesses to help understand and retain the information. (12) Furthermore, the committee has proposed making jurors' understanding of the facts and law more complete by offering all jury instructions in plain and understandable language.

These proposals are a welcome injection of practical suggestions to our overworked and often misunderstood jury system. To any practicing attorney who has brought a case before a jury, these proposed changes are a modicum of sanity in an otherwise illogical process. While the jury system does need an infusion of best practice techniques, a question that burgeons like a cloud before a downpour remains: How is the legal profession to decide the best way for jurors to do their jobs if the very purpose of a jury remains unclear? As the men and women who enter the jury box often express, their aim in deciding a case is often unclear or conflicted. Some enter the decision-making process in determining culpability with the aim of doing "justice" while others begin their deliberation with the intent of applying the "law." Are juries, as members of the community, empowered to represent society's power and thus hand out "justice," (13) at the expense of playing outside the boundaries of the "law" or do we expect the jury system to strictly apply the "law" that society has passed through the legislature, even if it will result in more societal harm? To put it simply, is the purpose of the jury system to apply the "law" or to reach "justice"?

This article explores the jury's dilemma by plunging into the historical and present application of the jury's purpose in criminal trials. Nothing increases the flavor like stirring the pot, and only when human beings and the consequences of their actions come into play, does the dilemma of a jury's purpose become glaringly present. This article explores the jury's dilemma through two distinct criminal trial deliberations and briefly explores the historical roots of the jury system. Finally, this article attempts to make sense of why juries inconsistently apply "justice" and the "law." This exploration hopes to better understand the jury's dilemma.

1. The Jury's Dilemma

   "It's really hard to figure out what ultimate justice is ... to me following the rules is justice because the rules are there for a reason, to maximize justice in society ... if the rules have been applied fairly, then a just result has been reached." (14) Ninth Circuit Court of Appeals Judge Alex Kozinski echoes the jurisprudential approach of those who believe that the roles of both juries and the judiciary are only to apply the law. The reality of such a view, when applied to imperfect humans and limited facts, can lead to heart-wrenching decisions. The strict application of the law can sometimes result in a murderer going free, a family in despair, or an innocent person losing his life.

   Yet, those that appeal to "justice" in the jury room do not escape from the jury's dilemma unscathed. One person's freedom fighter is another person's terrorist. In the same way, one person's "justice" is another person's "injustice." History, biology, faith, nationality, chemical make-up, and a host of other factors produce the highly complicated and unpredictable being that is human. It can be argued that to impose a notion of "justice" in the jury room outside of the application of the law is to impose a small group's view of the world on the legal system and subsequently, on society at large. (15)

   Theory and words in the abstract often decrease the intensity of the real world implications of the jury's dilemma. In order to flesh out the jury's purpose, this article next explores two dramatically different jury trials. The first trial explores the issues inherent in upholding the "law" while the second trial gives a glimpse into the way "justice" is administered.

   1. Letter of the Law

      In August 1998, two NYPD patrolmen kicked in a door to a small dark studio apartment. Before them, lay the naked six-foot body of a two-hundred pound African-American male. A multitude of stab wounds (twenty altogether) along the right side of the victim's spine, neck, and head enabled the police officers to conclude from the doorway that the man was definitely dead.

      The story is brief. Two men are in a room, and one man stabs the other, first in the chest, then in the back, many times. The stabber says he acted in self-defense. There are no witnesses. The defendant claimed that when he went into the room with the victim, he believed the victim was an attractive woman who wanted to have sex with him. In fact, he says it was only when they both undressed that he discovered that his date was a man who aimed to rape him. Prevented from fleeing the room, pressed to the floor, grappling for his clothes and the exit, the defendant took a pocketknife from the pocket of his overalls, opened it and stabbed the attacker. However, the prosecution identified witnesses who testified that the victim and the defendant were lovers. In addition, the prosecution introduced evidence of the defendant's murder confession.

      After the prosecution and defense presented their cases in chief, the deliberations unfolded. According to one of the jurors, "[o]n the first day we went around the...