By JANICE HYDE and ROBERT MANDER
Public participation in trial jury law is one of the most enduring aspects of the American legal system, according to Supreme Court Associate Justice Sandra Day O'Connor. "Juries are here to stay, and we should make them work as well as we can."
Justice O'Connor, who has served on the Supreme Court since 1981 (and resigned this past July 1 but continues to serve until her successor is confirmed), thus summed up the importance and unique role of "The Jury and American Democracy" in opening and closing remarks at the event co-sponsored by the Law Library of Congress and the American Bar Association (ABA) Division of Public Education. The event was held on March 2 held at the Supreme Court.
As part of the continuing Leon Jaworski Public Programs series to commemorate Law Day 2005, this year's panel assembled four legal experts to explore the democratic nature of the American jury system and its distinctive elements.
The Jaworski series was established in 2001 in honor of the Watergate special prosecutor to examine themes of American law, politics and culture on the premise that exploring legal identities and attributes helps to explain what it means to be an American. The ABA instituted Law Day, generally celebrated on May 1, in the late 1950s to draw attention to the principles and practices of law and justice. President Dwight D. Eisenhower established Law Day by presidential proclamation in 1958.
Program partners for the event included the ABA Commission on the American Jury, the Federation of State Humanities Councils, the League of Women Voters of the United States, the ABA Standing Committee on the Law Library of Congress and Friends of the Law Library of Congress.
Robert Grey, president of the ABA, presided and described the jury as "the imperative that most reflects democratic values in the tapestry of our system of government."
In his welcoming remarks, Rubens Medina, Law Librarian of Congress, expressed his hope that the panelists would spark interest and debate in the jury system. Urging them to expand inquiry into how jury systems "may or may not work in other cultures as well," he added that "it is my hope that we are wise enough to recognize that change—even in areas as tradition-bound as the lawmaking process and the administration of justice—may sometimes be necessary. We must constantly review our assumptions to make sure they still hold true."
The panel was moderated by Jeffrey Toobin, senior legal analyst for Cable News Network (CNN) and staff writer for The New Yorker, whose in-depth reporting includes many high-profile legal issues. He received a 2000 Emmy Award for his coverage of the Elian Gonzales custody issue.
O'Connor opened the panel discussion by observing that the jury is one of the most enduring aspects of the American judicial system, and today only the United States and New Zealand use juries in civil case trails. Noting that the American federal constitution and all state constitutions include trial by jury, she acknowledged that sometimes juries may disappoint, leading to a certain cynicism typified by Mark Twain's rhetorical question: "Why could not the jury law be so altered as to give men of brains and honesty an equal chance with fools and miscreants?" "But," she added, "such questions should lead us to find ways to make juries do a better job."
In spite of some shortcomings, O'Connor praised juries as "the only time most people outside of lawyers and litigators see the inside of a courtroom. As members of juries, they are conscientious. No doubt there are problems today as there were in Mark Twain's time, but in the long term it is worth it to work toward making the jury a treasured part of our judicial system."
Addressing one of the panel's framing questions, "Are juries democratic?" panelist Jeffrey Abramson argued that "on the one hand, the jury is all about democracy. It places faith in ordinary people to carry out justice. On the other hand, the jury is all about justice." Abramson, who is currently the Louis Stulberg Professor of Law and Politics at Brandeis University, added: "We expect juries to dispense ‘popular justice,' or how the rule of law fits together with the rule of the people. That's the muddy side."
Abramson contended that the colonial founders felt that dispensing common sense from the jury has to do with "getting it right," and getting it right includes reflecting the values of a local community. Beginning with independence from Britain and continuing into modern times, the prevailing view of American juries has changed to emphasize the role of impartiality in selecting juries. "Over time, we sought ways to rise above local sentiments and distance oneself from his or her ‘side of town' to achieve greater impartiality."
Tracing the history of juries back to the Norman kings of England, where jurors originally served as witnesses, panelist Miriam Goldman Cedarbaum, U.S. district judge for the Southern District of New York, next spoke to the value of juries as "our last form of direct democracy."
Panelist Kenneth Frazier, senior vice president and general counsel, Merck & Co. Inc., said that "today, the jury has an image problem of perceived incompetence and an inability to decide complex issues." Frazier challenged the legal community to devise means that enable jurors to better serve the judicial system.
Janice Hyde is a program manager in the Law Library of Congress. Robert Mander is a writer-editor in the Law Library of Congress.