The Jury: Trial and Error in the American Courtroom.

• Author: Blattner, John C.

In 1974, just after former U.S. Attorney General John Mitchell and former Commerce Secretary Maurice Stans were acquitted of conspiracy charges stemming from the Watergate affair, a reporter on the courthouse steps asked Mitchell if he had been worried about the outcome of the trial. "Not at all," Mitchell replied as he strolled toward his waiting limousine, "we've got the jury system, and that always works."(1)

Always? From high school civics classes to works of popular culture, the lore of American law is replete with paeans to the almost mystical virtues of the jury. Yet, it is hardly surprising that a prominent citizen like Mitchell, who successfully avoided the guilt and shame of a criminal conviction and the specter of a prison term, might be moved to sing the jury's praises. At the same time, a generation of Americans that has watched juries render what many people seem to view as surprising verdicts in the notorious cases involving Rodney King, the Menendez brothers, and Marion Barry, can be forgiven for doubting that the jury system, for all its vaunted virtues, always works.

Steven Adler's book, The Jury: Trial and Error in the American Courtroom,(2) gives voice to this conflicted view of the jury. "We love the idea of the jury," he writes, "but [we] hate the way it works. We celebrate the jurors' democratic power but no longer trust the decisions they reach" (p. xiii). Adler's book endorses our long-standing commitment to the jury system, explores the ways in which it appears to be betraying our trust through "shoddy" and "patently stupid" decisions (p. xv), and offers suggestions for its improvement.

History, someone once said, is "a fable agreed upon."(3) Because it is impossible to know the truth about any past event with utter certainty and accuracy, any account of that event is inevitably doomed to be both uncertain and inaccurate -- in the strict sense, a fable. Nevertheless, because today's choices and tomorrow's actions must often be predicated on yesterday's events, some fable must be accepted as the operative version of the past.

Nowhere is this more true than in the courtroom. An event -- a crime, a tort, a breach of contract -- has allegedly taken place in the real world. The court must establish the meaning of that event: blame for its occurrence must be assessed, and liability for its outcomes must be imposed. Our system of liability and punishment can operate only on the basis of an official version of "what happened." Therefore, we must have some way of agreeing upon a fable -- of establishing an official, albeit imperfect, history of past events. As Adler notes, the jury is the body we authorize to choose the fable upon which the parties, the judge, and the rest of us must agree.

Perhaps the most surprising and distinctive task of the American jury is to serve as official historian in any case in which facts are in dispute.... Whether [jurors] do their jobs well or poorly, what they decide is typically perceived as true, both legally and historically. Once a jury speaks, journalists no longer refer to an accused person as the "alleged" slayer; "murderer" suffices.

Literalists may argue that juries don't decide what is true; they merely decide whether the government has presented its facts convincingly. A not-guilty verdict, they say, doesn't mean a person is innocent, only that the government has failed to meet its burden of proof. Still, this is so only in a formal sense. As a practical matter the not-guilty person leaves the courthouse with all his freedoms and most of his privileges intact, while the guilty person goes to prison and, if he emerges, continues to suffer the consequences of having been found guilty.... Boxer Mike Tyson will live his life as a convicted rapist. Physician William Kennedy Smith will not. Their juries didn't just evaluate the government's proof; they wrote history. [pp. 5-6; footnote omitted]

This observation immediately makes clear the scope and gravity of the jury's awesome power. It also makes clear why it is so important to our system of justice that juries function properly.

Adler assesses the strengths and weaknesses of the jury by analyzing the performance of particular juries. He tells the stories of six trials, both civil and criminal, from various parts of the country. Based on his review of trial transcripts and on extensive post-trial interviews, Adler attempts to reconstruct not only what the jurors heard, but also how they perceived and processed what they heard and how they eventually arrived at their verdicts. For the most part, he wisely avoids notorious, media-saturated trials in favor of more "ordinary" cases. This approach enables the reader to focus on the facts of the cases and the performances of the juries, free from preconceived notions about the trials or their outcomes.

The first trial embodied the ideal: a model jury performed its duties in impeccable fashion under extraordinary pressure. In the trial of Mark Allen Robertson, who in 1989 brutally murdered two people in Dallas, the jury lived up to our most exalted aspirations. It featured a healthy mix of ages, genders, backgrounds, personalities, and ideologies. Two members, while acknowledging their distaste for capital punishment, solemnly promised not to let their personal views interfere with their application of the law. All twelve jurors rigorously honored their commitment not to discuss the case with anyone outside their formal deliberations. One juror spent hours before the start of the trial diligently reading books on the most effective...