June 7th, 2003

rivka as ww

Review, sort of

"Justice belongs to God; men only have the law. Justice is perfect, but the law can only be careful."

So says a juror in D. Graham Bennett's excellent A Trial by Jury, an account of his tenure on a jury charged with deciding whether one man had murdered another or had acted in self-defense. (Bennett is one degree of separation from me – the author's notes thank close friends of mine – but I've never met him.) Bennett is a historian by trade and training, and he is a strong writer. He sometimes waxes a degree too poetic, but he's quite aware of that, and his lack of pretension, his uncompromising honesty about the holes in his narrative, are part of what make the book worth reading.

It's a short book, 183 pages, and most of the time is spent discussing the jury deliberations rather than the evidence presented at trial. There's no "Twelve Angry Men" here, just people struggling with a system that they barely understand, trying to decide whether to do justice or follow the law. As Bennett notes, their disputes about whether to consider a compromise verdict replay debates people have been having since law existed; the quote with which I opened this entry beautifully illustrates Bennett's position, and mine.

Reading this book reminded me of the possibly unique experience I had in summer 2000, when I was simultaneously clerking at the Supreme Court and serving for a month as a grand juror. With the Term over, all we had were cert petitions (petitions asking the Court to review a case; almost all of the Supreme Court's jurisdiction is discretionary, so the Court controls its own docket in a way foreign to most courts, including many state supreme courts) and death cases (the machinery of death grinds on even during summer). So I had time to serve as a grand juror from 9-5 at Judiciary Square, then go one stop on the Metro to Union Station, walk past the gloriously blooming flowers that had just convinced us to stay in DC another year instead of moving to New York, and go in the side entrance of the Court to do the hour or so of work that remained to the clerks.

I was at the top of the judicial system and at its very bottom during the same day. It was a chastening experience. Borrowing from a classmate/co-clerk of mine who's now teaching law elsewhere, when I was in law school (actually, at my father's knee), I learned that cases were decided not on abstract theories of law but on principles fundamentally indistinguishable from standard politics. When I clerked on the court of appeals, I learned that, in fact, the law is generally fixed and that people of very different political and jurisprudential persuasions will often – not always, but very often – come to the same result in a case, because the law as it has developed speaks fairly clearly in most cases as to the proper result.

Then, I got to the Supreme Court and learned that cases were decided not on abstract theories of law but on principles fundamentally indistinguishable from standard politics.

The thing is, in the middle of the system, the courts do a good job of what they're supposed to do, to wit, following the rules laid down. At intake and at the final level ("We are not final because we are infallible. We are infallible because we are final," goes one memorable line about the Court), they don't follow the rules in any but the loosest of senses.

No one who loves laws or sausages should watch them being made; no one who loves the idea of juries (or grand juries) as protectors of American values and freedoms should watch them work. It is often said of grand juries that, if a prosecutor asked, they would indict a ham sandwich, and this is certainly true of the one on which I served. Despite a few attempts to maintain independence of thought, I generally followed automatically, and I might well have been part of the grand jury returning a true bill against a slice of Spam.

We were assured on the grand jury that this wasn't the time for a real trial, that all we needed to do was listen to the prosecution's side of the story and decide if there's enough there for a trial (or really, a plea bargain, but they didn't say that). We used this as a guiding principle. We were occasionally troubled by things that don't fit with our ideas of justice, such as police searches that seemed quite illegal and then turned up incriminating evidence, such as drug laws penalizing distribution within 500 feet of a school with no requirement that the accused know there was a school nearby, such as rape victims who claim rape when they've had sex with one of the alleged rapists before consensually. (This last is a story that is almost impossibly traumatic for me to tell, and involves race and, probably, class as well as sex, and I don't even know the result in the case, only one tiny slice of it.) Nonetheless, with the exception of cases we weren't asked to vote on – some of which were taken to another grand jury when our term expired or if we were busy when a witness was ready or if the prosecutor didn't trust us, which may have been what happened in the rape case – we voted to indict, indict, indict, with the grim sameness of chicken processors at a Perdue factory. The epitome of this farce occured when we were asked to indict a huge list of people on parole violation charges, and a police officer got up on the stand and recited the same facts – X was on parole and didn't show – over forty times, and we had to vote separately on each one. This is citizenship?

Oddly, the process was almost a mirror image of the cert work. The Court receives 6000-7000 petitions each year and hears about 80 cases. The standard cert pool memo, which goes to the chambers of the eight Justices participating – Justice Stevens' clerks stay out of the pool and review all the cert petitions themselves – is usually the only thing that anyone in those chambers looks at. It's very rare that someone will pull the actual petition and compare it to the cert pool memo's brief description and recommendation. The recommendation is, of course, nearly always "DENY." (All caps is required for the recommendation.) Like the grand jury, the Supreme Court is not there to do justice or make sure a conviction was justified in any particular case. Instead, the Court's job is to resolve conflicts that are dividing the federal circuits and/or state supreme courts, and occasionally to determine who gets to be President. Thus, the standard recommendation is "Splitless, fact-bound, error-correction. DENY." In chambers where hearts bleed less readily than in mine, it's "Splitless, fact-bound, meritless. DENY."

In both places, the demands of mass dispensation of law prevented much individual consideration. If a case made it through the cert lottery, of course, then there was much individual attention, but we then faced a closed record that was sometimes frustratingly silent on things we cared about. Of course, as I said, the Supreme Court doesn't have to follow the rules, and occasionally the Court simply decided that something was true whether there was evidence for it or not – who exactly was going to call the Court on it, anyway?

One day I had to call in to the Court during breaks to see if there were any developments in my death case, but the condemned man ended up abandoning his challenge, so it didn't disrupt my work on the grand jury. (Earlier in the Term, on the first anniversary of my marriage, I had stayed at work on another death case until that petitioner gave up and stopped fighting his death, which meant that I could go out for an anniversary dinner. Dinner wasn't a joyful celebration, for some reason.)

Mark Twain said that the only man who was assured of a trial by a jury of his peers was an imbecile, and I can't say I disagree. Bennett's experience parallels my own: there were people on our panels who couldn't hear, couldn't stay awake, and, most fatally, couldn't think. And let's not forget that 99% of criminal cases are plea bargained and are never subjected to jury trial, which may seem like a good idea given the quality of the standard jury but nonetheless further reduces the role of average citizens in containing the power of the state.

I highly recommend Bennett's book. It's a good reminder of the power of the state as well as the importance and the simultaneous impotence of the jury, and it eloquently raises the fundamental question about the proper role of a judicial system – should we seek justice, or apply the law? There are no actual constraints on any particular jury's response to that question, just as there are few significant constraints on the Supreme Court's resolution of many of the big cases before it, and there are no easy answers.

In other news, a Half.com purchase I made, a Shriekback CD (shut up), came with a post-it attached commenting that the seller liked my article on fan fiction. Weird connections happen on the Internet.