POLITICS NOVEMBER 19, 2001
A Trial by Jury
by D. Graham Burnett
(Alfred A. Knopf, 183 pp., $21)
Among political theorists today, there is a vigorous debate between those who advocate deliberative democracy and those who emphasize public ignorance. The deliberative democrats insist that it is not enough for laws and jury verdicts to be adopted democratically. Instead they must be adopted for the right reasons. Rather than voting based on "naked preferences," these theorists insist, representatives and jurors should support their positions by appealing to reasons that are publicly intelligible, and they should respectfully listen to the views of their fellow citizens before arriving at a final conclusion. Some deliberative democrats seem to view debates in a legislature or a jury room as something like an undergraduate seminar in public policy, in which participants can be persuaded to embrace a rational view--this often means a conventionally liberal view--of the most contested issues of our day, if only they are exposed to the right arguments.
Scholars of public ignorance are rather more sober about the prospects for steady enlightenment by democratic means. In their view, it is impossible to square the idealized view of deliberation with everything that we know about the way in which public opinion actually is formed. These scholars emphasize that citizens have vastly different abilities to form rational opinions based on an evaluation of evidence, and to express their views in publicly intelligible ways. Many citizens are lazy or irrational, and they are too ill-informed about public affairs to choose even those policies that coincide with their own deeply held interests or convictions. Instead of holding deep convictions in the first place, many citizens display only incoherent impulses based on their emotional responses to whatever images happen to catch their attention on television. And other citizens have ideological attachments that cannot be swayed by reasoned debate.
Few deliberative democrats have tried to respond to these challenges, and the handful of attempts at providing a foundation for the rationalists' optimism have not been entirely satisfying. James Fishkin has conducted elaborate experiments in which citizens are given the equivalent of an undergraduate-level course in public affairs before being polled on the issues of the day. Fishkin's "deliberative polls" in England and in America consist of small groups of voters who are presented with information about public policy by experts and then asked to discuss the issues in televised sessions. Although Fishkin found that voters changed their minds about some issues, it was not clear whether they did so because they were persuaded by the deliberations, or because the new information had the effect of momentarily catching the attention of an ill-informed and easily distracted group. Moreover, as Timur Kuran has noted, there is no guarantee that people in deliberative settings will say what they really think (especially when they fear that their discussions may be broadcast on television). Social pressures may have the effect of suppressing unpopular views and inhibiting honest discussion. In O.J. Simpson's criminal trial, the jury appears to have shirked its responsibility to weigh the evidence that had riveted the nation. Some of the members of the jury, Kuran suggests, may have been inhibited in expressing their thoughts about Simpson's guilt by fears of being viewed as racist.
The likelihood that some jurors may be too ignorant, too lazy, or too inhibited to deliberate rationally and disinterestedly is especially unsettling for democratic theorists of all persuasions. After all, some of the least sentimental chroniclers of American democracy have viewed the jury itself as a remedy for the public ignorance that inevitably afflicts citizens of vastly different abilities in an age of expanded suffrage. Tocqueville viewed the jury--above all the civil jury--"as a school, free of charge and always open, where each juror comes to be instructed in his rights, where he enters into daily communications with the most instructed and most enlightened members of the elevated classes, where the laws are taught to him in a practical manner and are put within reach of his intelligence." In complicated civil cases, he observed, jurors would defer to the greater wisdom and intelligence of the judge; in criminal cases, by contrast, "which rest entirely on simple facts that good sense easily comes to appreciate," judge and juror would meet as equals. Today, in an age when inegalitarian solutions to the public ignorance that afflicts democracy, such as Mill's proposal to limit suffrage to the educated classes, are unthinkable, the question of whether or not the jury actually is capable of teaching citizens to look beyond their selfish private concerns and to converge on a broader public truth seems more urgent than ever.
This is the question that D. Graham Burnett illuminates in his memoir of jury duty, without trying explicitly to answer it. Burnett, a professor of history, offers his experience as the foreman of a criminal jury in New York as a dramatic narrative rather than as a work of political or historical analysis: he draws few direct conclusions about democracy from the accumulation of details in his vivid story. Still, by unflinchingly describing his fellow jurors, with their very different abilities, attention spans, and capacities for reasoned deliberation, Burnett provides an important alternative to the airbrushed abstractions of the deliberative democrats. Rather than idealizing his fellow jurors, Burnett is willing to take them as they actually are; and in his refusal to blink at their shortcomings, he is far less condescending than those who pretend that all viewpoints deserve equal respect. By coolly enumerating the weaknesses of his jury, Burnett helps us to appreciate its unexpected strengths.
The facts of Burnett's case are easy to summarize, because most of them were never in dispute. In August 1993, Randolph Cuffee, an African American man, was found dead in his apartment near Christopher Street. Monte Milcray, a younger African American man, admitted that he had killed Cuffee, but he claimed that he had acted in self-defense. Milcray's story shifted several times. First he said that he had met a long-haired black woman named Veronique in Union Square, gone back to her apartment, undressed, and only then realized that she was a he. Milcray claimed that Veronique, who was in fact Cuffee, then tried to rape him, at which point Milcray went for his knife and stabbed Cuffee in the back and chest. Later Milcray said that he had met Veronique in a telephone chat room, and had made up the story about the street encounter because he was embarrassed to tell his fiancee that he was using a telephone dating service.
At the trial, the prosecution claimed that the victim and the defendant were lovers who frequented the "Fem-Queen Stroll" on Ninth Avenue. The prosecution's star witness, a drag queen called Nahteesha, said that on the night of the murder she had seen the defendant sitting on Cuffee's futon, watching a pornographic video with an air of post-coital satisfaction. (In a nice comic turn, Burnett describes the judge's gallantry in protecting another drag queen, Hector-Laverne, from the badgering of the defense attorney: "Hector-Laverne managed to pull off a completely unexpected (and seditious) tweak, teasing this berobed codger into a bizarre transgression of heterosexual norms: the judge had become, for a moment, Hector-Laverne's white knight and protector. Disciplines have been founded on less juicy moments.") Milcray chose to take the stand, where he insisted that he had acted in self-defense and that he had been ensnared in a sexual charade. On cross-examination, the lead prosecutor managed to alienate Burnett by theatrically re-enacting the murder without providing a convincing motive for why a mild-mannered defendant without a criminal history would commit a grotesque murder if he were not acting in self-defense.
The judge told the members of the jury that they should find Milcray guilty of second-degree murder if they thought that he had intentionally killed Cuffee, or acted with depraved indifference to human life. If they thought that he had acted recklessly, the judge further instructed, then they should convict him of manslaughter. But if they thought that he reasonably believed that he was in imminent danger, then his conduct could be justified as self-defense and he should be acquitted.
Burnett's account of the trial is funny and keenly observed, but his book comes to life mainly in its latter half, which describes the jury's deliberations. The conclusion that is begged by Burnett's account of the deliberations is that scholars of public ignorance are far more realistic than the deliberative democrats in emphasizing the vast range of jurors' abilities to understand evidence and to contribute to the proceedings. "There are some jurors here," Burnett observes in his notebook at the trial, "who are such idiots, so thoroughly oblivious to good judgment, or so thick (regardless of their intentions), that it seems improper to aid them in depriving a man of his liberty."
He comes to loathe in particular a juror named Felipe, who stares out the window and refuses to deliberate, and whose sullen silence is occasionally punctuated by paranoid rantings about his former girlfriend. When Felipe pipes up that even if Milcray is found not guilty he will go to jail for "a good long time," several of the jurors have to explain that he is wrong, and that if Milcray is found not guilty he will be released. "By the end, he had thrown much into question for me: not least, my confidence in jury trials," Burnett writes. "Are there some citizens not clearly able to distinguish daytime television from daily life?" Other jurors are similarly dim-witted. Rachel, a kindly older Jamaican lady, says little during the deliberations, only to switch her vote briefly at the very end so that she can raise points that everyone else had considered before. The only explanation that Burnett can offer for her change of heart was that Rachel felt "much of the drama of the last hours had overlooked her" and "wanted us to remember she was still in the room."
Although Burnett says that Felipe has called into question his confidence in trial by jury, his account shows that the jury system is resilient enough to survive even though a number of citizens are unable or unwilling to deliberate. A part of this is owed to the fact that we expect so little of jurors to begin with. Especially in criminal trials, jurors do not need to bring much knowledge to the table. The rules of evidence are designed to protect them from any information that might sway the emotional or the dull-witted. Jurors are not allowed to weigh hearsay evidence, for example, even though all of us rely on hearsay to make decisions about people in real life. (Much of journalism is based on hearsay.) They are not told about a defendant's previous bad acts, out of a concern that this would inflame their prejudice. (Burnett learns only after the trial is over that another young man alleged that Cuffee had molested him after enticing him to the apartment by posing as a woman; the judge had excluded the evidence because it was more prejudicial than probative.)
Jurors are also not allowed to take notes, to Burnett's repeated frustration. And they are locked in a hotel room at night because the state does not trust them not to discuss the trial with their families during the proceedings. Although the sequestration almost provokes a mutiny--"We're the prisoners now!" one juror complains to the judge--it proves to be indispensable to the jury's ability to reach a unanimous verdict. For some jurors have such short attention spans that it is impossible to imagine them taking the time to converge on a unanimous outcome were they not locked in a room that was watched over by armed guards.
This is not to say that all of the jurors are ignorant and irrational: some of Burnett's colleagues turn out to be genuinely open to reasoned argument. After a re-enactment of the fight--during which one juror gets on her back and calls for someone to lie between her legs--several people change their minds, conceding that Milcray's story of hand-to-hand struggle is not entirely implausible. There is a slight movement in the direction of acquittal; but at some point positions harden, and what follows resembles not so much deliberation as horse-trading. There is a Hebrew expression for negotiation, masa u'matan, which means "carrying and giving," and this phrase--rather than the more abstract "deliberation"--best describes what actual juries are forced to do in the search for unanimity. A friend of mine, for example, recently sat as a juror in a simple case involving the receipt of a stolen car. The jury deliberated for a while, and after it was clear that everyone knew what they thought, deliberation gave way to negotiation: to prevent a hung jury, the least forgiving jurors had to promise to vote not guilty on some counts in exchange for their more lenient colleagues' vote of guilty on other counts. Some jurors wanted to acquit on all counts, and some wanted to convict on all counts, but after the "carrying and giving," they reached a verdict that no one thought was perfect or entirely just but that everybody could live with.
Burnett describes a similar dynamic: his jury resembles not so much a seminar room as the backroom of a local legislature. And as in legislatures, political leadership plays a crucial role in setting the agenda and structuring the deliberations. Burnett, after his election as foreman, is cast as the moderator, and his clever leadership makes horse-trading--and, in the end, unanimity--possible. His account confirms Tocqueville's insight that jurors of lesser abilities often need the guidance of "the most enlightened members of the elevated classes." (There are a few places in Burnett's account where he conforms also to the intellectual haughtiness that characterizes Tocqueville's observation.)
But the guidance that the professor of history provides looks nothing like the elaborately mannered rules of democratic discourse proposed by self-styled champions of democratic deliberations. In an essay about democratic authority, David Eastlund imagines six rules of "Epistemic Proceduralism," including the requirements that "participants sincerely address questions of justice, not of interest group advantage" and that "participants evaluate arguments fairly, irrespective of the identity of the person ... offering the argument." Since his background conditions are so exacting, Eastlund cautions that the "epistemic needs of Epistemic Proceduralism cannot be met without the voters having a certain decent level of competence."
Burnett's jurors could not have met Eastlund's impossible standards if they had tried. (Nor should our fellow citizens be expected to master the rigors of "Epistemic Proceduralism.") For this reason, the practical rules that Burnett imposed as foreman were far less demanding: "I suggested that we speak in turn, that we indicate a desire to have the floor by a show of the hand, and that I would keep track of the order of speakers, so that anyone who wished to contribute could." Like all leaders in democratic situations, Burnett recognized the importance of appearing humble: the first thing that he did in the jury room (after proposing a moment of silence) was to offer to relinquish his place to whomever his colleagues chose by a show of hands. In a courtly turn, he was careful to step aside and let the others precede him out of the jury box. And as soon as he was elected foreman, in a sign of respect to his fellow jurors, he "rapidly revised" his courtroom appearance, exchanging his sweatpants for a tie, sweater vest, and blazer. A juror named Paige, a decorator who insists that she is intuitive rather than rational, jokes that Burnett thinks that this change in wardrobe "will help him lead us." "Well, yes, actually," Burnett replies, and his intuitive understanding of the importance of "a simple respect for the forms" helps him to establish his democratic authority without much ado.
What follows cannot be considered deliberative in any idealized sense. After a certain point, there is little giving of reasons, weighing of principles, and so forth. Instead there is an attempt to broker a deal. At the beginning, a narrow majority of the jurors seem to feel that self-defense cannot be ruled out. About half of the eight people who say that they think Milcray was acting in self-defense are also willing to say that he is guilty of one of the charges. This creates a procedural dilemma: does the jury have to reach a unanimous verdict on one of the possible charges before it can consider the question of self-defense? Burnett insists that the jury should save time by voting on the self-defense question first without trying to reconcile the very different views about whether Milcray is guilty of murder or manslaughter.
His most articulate opponent, a fellow historian named Adele, allies herself for strategic reasons with what Burnett considers a muddled position: decide guilt first and self-defense after. By emphasizing the gory details, she hopes to focus the attention of undecided jurors on Milcray's guilt. The jury members cannot agree on how to decide whether the charges should be considered in order--should a majority or a supermajority decide?--and so they instruct Burnett to ask the judge. After a long wait, the judge sends back his response: the charges have to be considered in order. But in the end the jury ignores this instruction and votes on self-defense without taking a formal vote on the underlying question of guilt.
Burnett's initial instinct in the face of disagreement is to hope for a hung jury; the possibility that people might change their positions in the course of the discussion does not occur to him until later. He decides quietly to vote to acquit, hoping that at least one other juror will take the opposite position, resulting in a hung jury. The idea of a hung jury also appeals to his instincts as a scholar: "I realize now that for me--a humanist, an academic, a poetaster--the primary aim of sustained thinking and talking had always been, in a way, more thinking and talking." But unlike the deliberate democrats, who view jury service as a conversation whose main goal seems to be more deliberation, Burnett comes to realize that his job as a juror is not to keep questions open but to bring them to a close. "A hung jury would turn our jury duty into a symposium, an intensive discussion group, an interpretive seminar," he concludes. "It would mean something different to everyone, like art." But jurors are not students in a seminar, where all viewpoints can be respected and understood. In the end, everybody has to shut up and vote.
As the jurors go around the room and Burnett hears six or seven of his colleagues say that they think Milcray might have acted in self-defense, he finds his own "somewhat flexible" inclination in that direction become stronger. "Clearly, I wasn't just raving," he says. This is consistent with Timur Kuran's studies of social comparison, which have found that people are quick to jump to hasty conclusions about the opinions of others based on superficial and unreliable cues about behavior. To avoid social ostracism, they may support the status quo because they falsely conclude from the lack of open opposition that others support it.
But once a few people voice a previously suppressed view, the silent majority may be emboldened to reveal its own true feelings. Thus Burnett initially scorns Dean, a cowboy-turned-vacuum-cleaner-repairman whom he calls "the Faludiman" because Dean dresses like the stereotypical white male redneck. But when Dean and others prove to be far more thoughtful than they appear and begin to voice doubts about Milcray's guilt, Burnett is emboldened to start defending acquittal more openly. At some point Burnett decides to try to lead the jury toward a unanimous verdict, out of a sense of his duty as foreman, and simply to show that he can.
He achieves the unanimous verdict through a combination of persuasion and horse-trading. Adele the historian worries that an acquittal would be unjust, and if the law is not just, it cannot have any force. There is an attempt to broker a deal: perhaps both sides could move toward a middle ground, agreeing on a conviction of manslaughter rather than murder. Burnett argues against the compromise, insisting that it would be "a violation of our duty as jurors, which is to apply the law," not to fudge the law because of a desire to see Milcray get punished. "The true justice of our legal system lies in its ability to forgo justice," Burnett insists dramatically.
The stiffness of the law is the product of a very serious idea: that the law should be exactly the same for everyone, regardless of who they are--that our rule of law can never bend, because if it did it could be used to reach and get a particular person, be used to satisfy particular desires. Instead the idea is that it will be totally rigid, and what it can catch it will catch, and what it cannot catch must be let go.
In fact, Burnett's formalistic view of the jury as a mechanical enforcer of unyielding rules is not the only view, or even the traditional view. In 1929, Dean John Wigmore, the leading authority on evidence, noted that law and justice are from time to time in conflict, because law is composed of general rules, applied equally to all, while justice is concerned with the fairness of a particular case in the context of its circumstances. The judge, said Wigmore, must apply the law as he finds it alike for all, justice or no justice. But the jury has a very different function: "The jury, in the privacy of its retirement, adjusts the general rule of law to the justice of the particular case... Thus the odium of inflexible rules of law is avoided, and popular satisfaction is preserved... That is what the trial jury does. It supplies that flexibility of legal rules which is essential to justice and popular contentment."
Wigmore's vision of the jury as a rule-defying body has itself been vigorously criticized. Jerome Frank, the great legal realist, admired the candor of admitting that juries have the power to disregard what the trial judge tells them about the rules, but he warned against romanticizing the jury as a dispenser of popular justice. Often juries simply do not understand what the judge said to them, and they reach their verdicts not because they like or dislike a particular rule, but because they have certain emotional responses to the lawyers and the witnesses. Also, if juries are better than judges at applying legal rules, why do we ask juries to find facts and judges to apply the law?
Burnett depicts the jury's choice as one between inflexible rules and forgiving standards, between law and justice. He says that the turning point in the deliberations comes when Dean, "the Faludiman," gives a dramatic speech about how "justice belongs to God; men only have the law." "He's convinced me," says a juror who had been inclined to convict, her eyes brimming with tears. But although the dramatic choice between law and justice may have helped to focus the attention of some jurors, it oversimplifies the complexity--and in some cases the irrationality--of the views of others. Some of the jurors who were initially inclined to convict Milcray were not advocates of justice over law. They were not trying to nullify what they perceived as the unjust laws requiring proof beyond reasonable doubt, in the spirit of those who refused to enforce the fugitive slave laws during the Civil War. Instead they claimed to be convinced beyond a reasonable doubt that Milcray had not acted in self-defense, even though their certainty appeared unreasonable to their colleagues.
Similarly, a juror named Leah, the most fervent advocate of acquittal, did not take the moderate position: that Milcray was probably lying, but there was not sufficient evidence to conclude beyond a reasonable doubt that he had not acted in self-defense. Instead she took the more extreme view that Milcray clearly had been acting in self-defense. Leah was hampered in her ability to convince others by her emotionalism and hyperbole: trying to convey the dangers of living in a country without respect for the rule of law, she tells a personal story about a friend who was arrested and raped by the police in Turkey. (Scholars of public ignorance worry that many citizens are unable to discuss public affairs except in terms of their daily lives.)
This is too much for the other jurors, who lose their tempers and begin to shout at each other. What emerges from this part of Burnett's account is that certainty can be as unreasonable as doubt, but that there is a point at which no amount of deliberation will change the minds of jurors who have decided what they think. Some jurors cannot be deliberated with; and so they must be accommodated. The final accommodation occurs after the jury has voted unanimously to acquit. Burnett calls the bailiff, but just before he can turn over the verdict sheet, Adele has second thoughts. "No! Wait, we're not ready!" she exclaims. "Not yet." Fortunately, Burnett is ready for any exigency: as it happens, he has gotten up early to draft a statement to the court that makes clear "that we feel we are doing the right thing before the law but something that is not, in the end, really just." He reads the statement, and everyone is satisfied, including Adele. Fade to black.
In this moment, and in a few other moments, Burnett's account of his own self-possession and eloquence seems almost too good to be true. In the end, though, it does not matter whether or not Burnett has given us a literal transcript of his own performance: as he recognizes at the end of the book, there is a crucial difference between writing a narrative and deciding a case. "The writing has done the thing I wanted so badly from the start," he concludes. "It has made the trial into words, a thing to read, to interpret, to circle back through. A text. Like art. Meaning something different to each person. Keeping the large questions open. But the trial was not like that."
Again, "like art." Burnett verges sometimes on the dandyish, which interferes with the sobriety of his enterprise. But he is making a significant point. A narrative, like a seminar or an idealized exercise in democratic deliberation, can raise doubts rather than resolving them, respecting every perspective and allowing all participants to view the facts and law through the lens of their own most flattering self-conceptions. But a verdict is something different. It is, as Burnett suggests, "literally a true-saying, a truth-to-be-spoken," and it must be spoken within the limitations and constraints imposed by a particular room, a particular time, and a particular group of twelve fallible men and women.
Tocqueville predicted that jury service would benefit jurors more than it would benefit the parties to a case. And Burnett confirms that the experience of being locked in a room together forced twelve people to focus on something other than their own personal affairs, and therefore helped to combat the selfishness that is the blight of egalitarian democracies. After reading the verdict along with the note of qualification, the hectoring and unpleasant judge backhandedly thanks the jury, pointing out that in peacetime jury duty is the most extensive commitment that the state demands of citizens. Although it is not comparable to the sacrifices demanded of his generation in war, it represents a service to the country.
"He was right," Burnett recalls. "I felt, dimly, a new respect for him, a sympathy for his perpetual irritation with the parade of self-indulgent New Yorkers who passed under his bench." What Burnett's narrative shows is that there is no fatal contradiction between self-indulgence, public ignorance, and democratic participation. If jury service neither requires nor produces perfect citizens, it can at least teach them to negotiate and to live with each other, giving and taking in the search for compromise.
It is hard not to be moved by Burnett's account of reading aloud the final ballots, especially the moment when it becomes clear that twelve jurors have voted to acquit. And the unanimous verdict is moving because Burnett has not sentimentalized the discussions that led up to it. "Eventually an imaginary world is entirely without interest," reads one of the book's epigraphs, from Wallace Stevens. Rather than trying to perfect or to airbrush his fellow jurors, Burnett has presented them in all their human varieties and limitations. Some are as clever and strategic as a rational choice economist; some are as earnest as the most cloying of the deliberative democrats; and some are as irrational and disengaged as the wildest nightmare of a scholar of public ignorance.
Burnett reminds us (and his literary voice helps the idea go down more smoothly) that not everyone is entitled to equal respect, although everyone is entitled to an equal vote. All must be accommodated, even if some are unable or unwilling to deliberate. As for the verdict itself, it inspires respect not because it is produced by respectful deliberations, and not because it displays a principled commitment to either law or justice. It inspires respect because it represents the unanimous voice of the people.