A Jury of Your Peer

Reader Al (aka Guest Blogger Al) sent me an email this morning. He threw me a bone on my Documents Gone Wild post, then linked to an article he thought worthy of note.

John,  

Good post on the falsification of documents in PHIII's case. 

Check out this article below 

http://colorlines.com/archives/2012/04/study_racial_make-up_of_jury_pool_affects_trial_outcome.html

Al's link summarized the findings of an article in the most recent issue of The Quarterly Journal of Economics. Since no one wants to read such an egghead article in its entirety, or even a summary of an article, or even this summary of the summary of the article, I'm going to display a graphic from the summary that gets straight to the bottom line.

You may think that this reduction in conviction rate of black defendants stems from having blacks on the jury. As it turns out, that's not quite what they found. The eligible jury population in those counties was less than 5% black. When a jury pool contained at least one black person, it typically contained no more than one. And here's the kicker. The black person did not actually have to be selected as a juror to reduce the chance that a black defendant would be convicted.

Very interesting.

Given that I sometimes find very interesting things to be somewhat interesting, I tried to understand why such a relationship might exist, assuming that it does exist. Here's what the authors had to say:

Having established that the racial composition of the jury pool has a substantial impact on conviction rates, we consider a number of possible channels through which random variation in the composition of the jury pool might affect trial outcomes. Most obviously and directly, having at least one black member in the jury pool makes it feasible to have a black member on the seated jury. Black representation on the seated jury might affect trial outcomes not only through the jury deliberation and decision process but also by affecting how the case is presented and argued by the prosecution and defense attorneys. 

Adding black potential jurors to the pool can also affect trial outcomes even when these jurors are not ultimately seated on the jury. This indirect effect comes about through the jury selection process if attorneys on each side use their peremptory challenges to strike the potential jurors most likely to be hostile to their case.

The authors then explain (but not clearly though) how the attorneys might use their peremptory challenges to select or exclude the black person from the jury. The modified peremptory challenge strategies (they argue) cause both the defense and the prosecution to compose a jury less hostile to a black defendant.

It sounded to me pretty much like hog spittle. I wasn't ready to buy either their surprising conclusion or their explanation for their surprising conclusion. I was trying to poke a hole in either their study or their argument when I noticed that the average jury size in their study was 7.11 jurors.

What the hell?

That forced me to learn something new, yet again. (Will it never end?) You may or may not have noticed that the study was limited to two counties in Florida. You may or may not have known that Florida does not seat twelve people on its juries, not even on its criminal juries. It seats just six jurors, plus one or two alternates. Hence the 7.11 jurors, on average.

That sucks.

As my fingers danced furiously over my aging keyboard, I learned that the early part of the 1970's was a bad time for our jury-based justice system. In the 1970 case of Williams v. Florida, the Supreme Court of the United States of America narrowly ruled that the Bill of Rights did not demand twelve jurors, as common law had demanded for centuries. Six were just as good as twelve. Just as good. Absolutely just as good. No doubt about it.

[Uh, oh!]

Also in 1970, in the case of Johnson v. Louisiana, The Supremes decided that unanimous verdicts were also unnecessary.

[Gulp!]

And just in case anyone doubted their sanity, The Supremes reaffirmed their no-need-for-unanimity decision in 1972, via their decision in Apodaca v. Oregon. 

[Mama!]

Welcome to the infamous slippery slope. Just how many jurors must find you guilty before the State can frog-march you off to prison, or to the gurney? Can a state use just 3 jurors? If so, do the three have to be unanimous?

Can the state try you with just one juror, by a jury of your peer? If your peer has multiple personalities, do they have to be unanimous?

Fortunately, The Supremes deslipperized the slippery slope in the 1978 case of Ballew v. Georgia. Georgia had ventured too far down the slippery slope, even for The Supremes. Georgia had taken a shine to convicting people with just five jurors. The Supremes said "Don't be ridiculous." Actually, according to the link, what they said was more along the line of:

The Court found that a trial by jury of less than six members violated the accused's right to a trial by jury as protected by the Sixth and Fourteenth Amendments. Justice Blackmun reasoned that small juries foster poor group deliberation. Group memory of the details of testimony, the ease with which group compromises can be made, and the desire of the group to be self-critical and reflective are all hindered as the size of the jury decreases. Blackmun also relied on statistical studies to claim that the risk of jury error increased with smaller juries.

Since even a non-Supreme-Court-Justice such as I can see that the summary would read just as well if it said "a jury less than seven members", you might guess that the Supremes used the opportunity to correct their screw-ups in Williams v. Florida, and Johnson v. Louisiana, and Apodaca v. Oregon.

But noooooo. As The Jury Expert explains:

Despite acknowledging "that the purpose and functioning of the jury in a criminal trial is seriously impaired, and to a constitutional degree, by a reduction in size to below six members," the Court reaffirmed its decision in Williams.

I now make the tricky U-turn back to the original point of this article. I think the Duke study discussed earlier in this article may be adding to the body of empirical studies finding that small juries are not as likely to be just juries. Small juries such as those described in the Duke study are more likely to exclude minorities, and less likely to be self-critical and reflective.

Let me know what you think. Should we demand that juries are composed of twelve jurors and that the verdict be unanimous? If not, how many jurors should it take to convict or exonerate a defendant in a criminal trial?