North Coast Journal

Guest Opinion - August 1995


by Clifford B. Mitchell

Insight from the O.J. trial

I hesitate to disagree with a distinguished professor of economics - and excellent columnist - about what's wrong with our justice system, but I have been involved in it for 42 years and offer some comments on the column by Ron Ross, "Involuntary servitude" (June).

Ron says we should have "professional jurors," people who have been duly certified as "experts" after going through "training programs." He apparently got this insight from lessons learned from the O. J. Simpson trial.

I suggest that the biggest problem with the jury system is people's perception of it - which comes from the same sources that enlightened Ron: TV and the newspapers.

Less than 5 percent of the civil lawsuits that are filed are tried. I would guess that the statistic holds true for criminal cases as well.

Of this small sample of cases, the only ones that get media attention are sensational cases - because only sensational cases are "news."

That some lady someplace sued somebody because she spilled hot coffee in her lap is interesting. But I don't believe I would start a reform movement over it. Ditto for O. J. Simpson.

If there is any lesson to be learned from the O. J. Simpson case, it's that they should kick the TV cameras out. The reporters, too, if I had my way. Let the jurors do their job without all those pressures and distractions. Nobody can get a fair trial in that environment.

Regarding the expert jurors idea, I can't imagine anything worse.

Somebody with a lot of insight about experts said that you could put all of the world's economists end to end - and you wouldn't reach a conclusion.

Show me a jury of experts, and I will show you a bunch of people who are first and foremost bent on proving who is the best expert.

Probably a juror's most important job is to decide who is credible and who isn't. How do you teach somebody to be an "expert" on how to judge credibility?

Actually, people involved in the process - judges, lawyers, bailiffs, court clerks and the like - are poorly qualified to judge credibility (and questions of fact, for that matter) - because we have seen so many we tend to pigeonhole cases: rear-enders, slip and falls, soft-tissue, wrongful death, etc. With jurors, each case gets a fresh look, untainted by prior experience and preconceived notions - i.e., prejudices.

Who will ultimately decide what experts are to be certified? Will it be by popular vote? Appointment by a public official? Should we allow the expert jurors to form a union and strike for higher pay?

The concept of trial by one's peers (i.e., ordinary citizens) was arrived at after some unfortunate experiences with alternatives, such as trial by combat (based on the dubious assumption that the person with the just cause would prevail), star chamber (trial by the church) and the king's court (trial by government).

"Trial by experts" is not a progressive idea. It would be a form of trial by government - a step back toward the king's court - and the dark ages.

In the more than 40 years I have been involved, there have been a lot of improvements in our justice system. The judges work much harder than they used to, the cases move a lot faster (because of fast track programs), there is a strong policy against granting continuances, and cost- and time-effective alternatives to trial by jury, such as arbitration and mediation, are being increasingly used. Future improvements should, and no doubt will, be made.

But a person's fundamental right to a trial by a jury of his peers remains as the core of the system.

I have talked to countless jurors after trials. Almost uniformly, they regarded jury service as a positive experience. When everybody starts thinking of jury duty as a form of involuntary servitude, instead of a responsibility of citizenship, we will probably end up with something else - which we will deserve - maybe trials by elitists.

Meanwhile, I don't believe I would trash the jury system because of some spectacle on TV.


Clifford Mitchell is a partner in the Eureka law firm of Mitchell, Brisso, Delaney, Reinholtsen & Vrieze.

 



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