THE MODERN JURY
Much has been written in the past few years about the functionality of
America's jury system. I paid little attention to it until I watched the
case of the two Menendez boys who, claiming self- defense, killed their
parents while they slept. In rapid succession followed the O J Simpson
trial, the McVeigh Oklahoma City bombing trial, the murder trial of the
British nanny, and the Nichols trial as an accomplice in the Oklahoma City
bombing. Further, I have watched with interest jury selection of the
Unabomber trial, in which Ted Kaczynski will have his chance before a court
of law to establish----what? That Kaczynski is the man who built and
mailed the bombs that killed and maimed those who opened the packages in
which they were sent seems almost beyond dispute. The question of his
sanity is certainly relevant, but is a jury the proper body to determine
whether or not he is insane and should stand trial?
Our jury system has its historical basis steeped in tradition and the
surety that a man could not get a fair trial from the King, the King's men,
or a local authority selected by the King, such as a judge. No, to assure
a man would get a fair trial, he was granted an impartial jury of his
peers. That is, a random selection of twelve people like him would hear
the evidence, both pro and con, and render a judgment based on those facts.
All of them had to unanimously agree on the decision. It was intended
that these peers be literate, capable of judging the facts without bias,
and sufficiently intelligent and independent to render a just verdict. To
guarantee those conditions would be met, potential jurors were required to
meet certain criteria. They varied, but at one time only men able to pass
a literacy test, who had no relation to nor pecuniary interest in the case,
were not indentured or in debt, and who owned property, were qualified to
serve. The basic concept was to select a qualified jury that would punish
the guilty, free the innocent, and provide justice.
Note that the goal was to provide justice, not free the guilty, convict the
innocent, or make lawyers into wealthy celebrities. Legal precedents and
guides to formalize courtroom procedures developed into a body of law. The
system, like all created by men, was not perfect, but certainly was
preferable to the King's justice. All the world envied the justice that
ensued from that jury system, and many nations imitated it.
Looking back over two and a half years ago at the awful carnage resulting
from the bombing of the Federal Building in Oklahoma City, with 168 deaths
and innumerable serious injuries, my thought was that foreign terrorists
had finally struck in America. When I first saw Timothy McVeigh being led
away in his orange prison suit, I remarked, "He's not one of them, he's one
of us." And so he was. But the destruction at Oklahoma City was so
complete that I felt anyone involved of complicity in assembling and
detonating that huge truck bomb should be given the death penalty.
McVeigh, based on conclusive evidence, was found guilty of the crime and
sentenced to death. I felt sorry for him, because I believe what happened
at Waco, Texas was an arrant display of uncontrolled federal power. But it
was no excuse for arbitrarily planning a retaliation that resulted in the
deaths of 168 innocent people. I believe justice will be served when
Timothy McVeigh is executed.
The evidence linking McVeigh with Terry Nichols was persuasive. There is
no doubt in my mind that Nichols assisted McVeigh in obtaining materials
for the bomb, and little doubt that he actually helped in its assembly.
The jury agreed, since it convicted him of conspiracy. Is it possible
others were involved? Yes. But that in no way reduces the culpability of
Terry Nichols. The man who physically pulled the fuse does not deserve 100%
of the responsibility for that enormous fuel bomb that brought down the
front of the Federal Building. To my mind, and that of many others, if
Nichols was part of the conspiracy, he also deserves the death penalty.
Anything less, and justice has been subverted.
It is important to recognize the fact I was not part of that jury, and did
not walk in their shoes. There may be practical reasons why that was the
best verdict on which it could agree. And that is the problem. What seems
to have happened in America is the accused no longer is on trial. The
lawyers are on trial, on theatrical display as it were, with their staged
acts and the expert witnesses they collect to discredit those mortals who
gather the evidence. Further, the lawyers are permitted to carefully craft
juries either sympathetic to their causes, or composed of cretins who are
incapable of understanding and drawing rational conclusions from the
evidence. Think about it: how many normal, bright, educated people are
there who have not heard and read about Nichol's federal trial. The state
of Oklahoma intends to seat a dozen qualified jurors and numerous
alternates when it tries Nichols in the future for the bombing deaths of
160 people. And it will. But will that really be a jury of his peers?
Hermits, and reclusive men and women who neither read nor listen to
television will qualify, but virtually no-one else. A man such as Ted
Kaczynski might be eligible. The rest of the jury may include among them
persons who are either illiterate or of marginal intelligence. Justice!
No wonder the defense simply puts on an act that merely appeals to sympathy
and ends with, "This is my brother. He is in your hands." Theatrics is no
substitute for justice, and I hold judges responsible for permitting such
pap in their courtrooms. Tigar is unrelated to Nichols, and it would not
be cynical by a judge to point out that fact.
It seems to me we have permitted American trials to become exhibitions,
entertainment in which the performances of the lawyers are what matter, the
guilt or innocence of the accused secondary, and justice of no consequence
In regard to the verdict of the Nichols jury, which found him guilty of
manslaughter and conspiracy, there may be some truth in saying one can no
longer find an American jury willing to give the death penalty. Various
theories have been offered to explain why, and I have one of my own. It's
been nearly a quarter of a century since the United States was involved in
what I call a real war, a war that cost the lives of 50,000 or more
American servicemen. Consequently, death represents something today it did
not then. Not too many decades ago, there were causes for which men not
only were willing to risk their lives, but to accept that loss as a
rational sacrifice for the greater good. People of all walks were more
accepting of death as an outcome of conduct. The individual, not society
was held accountable for his or her acts. While people have always
regarded life as sacred, if the death penalty were ever justifiable, it
surely is in the murder of 168 innocents.
But beyond all this, I want people to understand the result of decades of
courtroom melodrama and unstructured legal maneuvering is the
bastardization of our jury system. Trials are presented now as titillating
tabloid games whose result is the deification or denigration of lawyers
such as Johnny Cochran, Michael Tigar, and Gary Spence, depending on
whether they "win" or "lose." The spectacle has become more important than
justice, and the body public reduced to millions of voyeurs in a media
colliseum staring fascinated as legal gladiators fight and lions savage the
Is our jury system worth saving? Yes, I believe it is, but as it was
originally intended. There is a place in our society for responsibility
and justice. To obtain operative justice, we must reintroduce the legal
discipline and personal accountability that made the concept work.
Restoring it will not be easy, but there is no alternative for a system of
Sam Orr firstname.lastname@example.org