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 whatever.

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 Christians.

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 free men.


Sam Orr sorr@metrolink.net
World Traveler
and Philanthrope
(Location Unknown)