Legal Process Reform

Overview

Our country inherited the fundamental characteristics of its legal system from England. Which included jury trials. The function of the jury has always been to ensure that the substantive law is thoroughly applied and that parties to any lawsuit receive a fair trial.

The jury’s genesis was in 1215 in the Magna Carta where King John promised that “No free man shall be taken or imprisoned or in any way destroyed except by the lawful judgment of his peers”.[1] The jury has been especially important throughout English and American history as a bulwark of protection against abuses to human rights. The founders of the American Constitution were aware of and influenced by developments within England and the rest of Europe when they drafted the Constitution. For example, the experience of the Star Chamber which tried persons charged with political crimes in secret and passed judgment on them with little regard to fairness or due process of law, was regarded as an evil to be guarded against.

The Constitution enshrines trial by jury because the American ethos, even at that early stage, was not to trust judges acting alone.[2]

The right to a jury trial was enshrined in the Constitution for non-criminal matters within the Seventh Amendment to the Constitution which provides:

“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact tried by jury, shall be otherwise re-examined in any court of the United States than according to the rules of common law”.

The first ten amendments, known as the Bill of Rights, were designed to protect citizens against infringements of their rights by the federal government. the scope of the protection did not extend to limit action by the government of the individual states. Since the passage of the Fourteenth Amendment, first adopted in 1868, the due process clause contained therein has been utilised to incorporate certain fundamental liberties contained within the Bill of Rights and to make those protections effective against state, as well as federal, action. In part the amendment provides “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws”. In the area under consideration it is that part of the amendment which states that “no state shall deprive any person of life liberty or property without due process of law” that has extended fundamental protections of the trial by jury to trials held in State Courts.

The incorporation of the fundamental liberties of trial by jury has occurred through the United States Supreme Court, the first time in Duncan v Louisiana.[4]

In the guarantees contained within the Seventh Amendment to the United States Constitution, and its incorporation via Fourteenth Amendment “due process” has meant that the standard method of trying civil matters in both Federal courts and in State courts is trial by jury. Civil cases often involve questions of judging community standards or the standards of a reasonable person in a particular situation. It has been said that the jury, as the voice of the community, is in the best position to offer that view.[22] It is well to remember that in the State Courts of the United States the principal method by which judges are chosen is through popular election. This has meant that the judicial position itself in the United States often lacks the majesty or the reverence which is attached to the judiciary in other countries of the common law. The guarantee of a trial by jury and the jury's collective wisdom is often to be preferred where there is a fear that an individual judge may be less than impartial or inevitably correct.

The original concept for a jury stems from the provision in the Magna Carta which required that no free man shall be seized and imprisoned except by judgment of “his peers”. This language is not specifically provided for in either Federal or State legislation. [But]In one instance, the Supreme Court stated:[28]

The very idea of a jury as a body of men composed of peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbours, fellows, associates, persons having the same legal status in society as that which he holds. [original emphasis]

In the United States the eligibility criteria for serving on a jury has been laid down in Federal legislation which is mirrored by almost every individual State statute as well. A person shall be qualified for jury service if they:[30]

(1) are a citizen of the United States, have reached the age of 18 years and who have resided in the district for at least 12 months;

(2) are able to speak, read, write and understand the English language sufficiently to fill out the juror questionnaire;

(3) are not incapable, by reason of mental or physical infirmity, of rendering satisfactory jury service; and

(4) do not have a charge pending against them for the commission of, or have been convicted in a State or Federal Court or have a record of, a crime punishable by imprisonment for more than one year and it has not been ten years since the completion of the individual's entire sentence, including incarceration, probation and parole.

Some 45% of Americans aged 18 and over say that they have been called up.[31]

One conclusion that emerges from research on jury selection is that the more heterogeneous the jury's composition, the greater the likelihood of rich and unbiased performance.[54] When jurors of different ethnic groups deliberate together they are better able to overcome their individual biases. The purpose of the cross-sectional selection has been to give voice or representation to competing groups.

Despite the constitutional importance of jurors there is a lack of respect for them as shown by a lack of respect for their privacy.

The case in a Houston courtroom of prospective juror Leland Crouch as played out in the Houston Chronicle is instructive about a juror’s loss of privacy.

Although it involved selecting a jury in a criminal case the voir dire process that was employed is similar to that employed in a civil case.

Harold Leland Crouch was a 45 year old environmental engineer and former Marine sergeant who had served in the Marine Corps during Viet Nam between 1972 and 1976. He was honorably discharged.

It seems that Harold Leland Crouch defied a judge by refusing to fill out a juror questionnaire in a capital murder case. He was found in direct contempt of court and was fined $500.00 and sentenced to 30 days in jail by Judge W.R. Voigt. As it was direct contempt—that is disobeying a judge’s order in a courtroom—the law allowed him to be held without bail. As reported by the Houston Chronicle had he been an officer of the court he would not have been allowed by law to be held without bail. But the reporter failed to mention that “an officer of the court” is simply someone who is a lawyer. In other words if you are not a lawyer in this situation you can be held without bail but if you are a lawyer you cannot. LINK

Crouch refused to fill out the forms and said the mere fact that he was summoned qualified him for jury service. He must have read his U. S. Constitution before he went downtown. He apparently considered that he was a “peer“ of whoever was on trial.

But predictably The Lawyers Guild closed ranks. Both the prosecuting lawyer and the defense attorney praised Judge Voigt and said they were frustrated by Crouch’s actions.

But long-time Chronicle columnist Jeff Millar reported:

The questionnaire Crouch objected to is rather lengthy and contains about 90 questions that range from basic things like name and address to more probing queries on political beliefs, religious affiliations and tastes in books, movies and television. But more specifically:

In question 28 , reveal if you were dishonorably discharged from military service.

In questions 32 and 35, detail those in your family—or who are acquaintances—who have been arrested or even accused of a crime, then state what the crime was.

In question 40, list the magazines to which you subscribe or buy off the rack.

In question 42, reveal the title of the last movie you saw.

In question 53 and 57, you must detail all consultations you or any relatives have had with psychologists or psychiatrists and list all medications prescribed.

In question 64, detail how you happen to know anyone who’s ever been in prison.

In question 74 you are asked to describe the problems of anyone you’ve known who’s had a serious problem with alcohol or illegal drugs “without naming any names”

Judge Voigt assured all that what you write down was to be used solely “to give the prosecution and the defense an opportunity to select a fair and impartial jury”—that “all answers will be held in the strictest confidence (and that only) the judge, lawyers, court reporter and clerk will have access’ to them. (What’s the court reporter doing in the loop if the information isn’t going into the record?)

The fact is that there is no assurance that what a juror writes will not come up when the prosecution and defense question individual prospective jurors—audible throughout the courtroom—to satisfy themselves that the juror will be fair and impartial

It seems that for the offense of being eligible for jury duty, citizens are being hauled into court and required to rat information that could cost them jobs, reputations and relationships.

Responses from readers of the Chronicle who undoubtedly are our peers clearly show the wisdom of a jury of such:

I sympathize with the juror, Harold Leland Crouch, who was found to be in contempt of court for his refusal to fill out a juror questionnaire (Potential juror questions forms; Judge’s answer: 30 days, $500”)

Lawyers invade privacy and go far beyond the legitimate need to seat an impartial jury by their misuse of voir dire to stack the deck in favor of their clients. Lawyers have a right to know I’m an eligible citizen, not a felon, can read and understand the proceedings and don’t have a direct conflict of interest with either the defendant or any witnesses.

It’s none of their business, nor does it have anything to do with my ability to be fair, to ask what church I attend, what political party I favor, my marital status, about my children, etc.
The ability to stack a jury is one of the biggest abuses of our legal system and it further undermines the public’s faith in our criminal justice system. This gamesmanship allowed lawyers in the seating of a jury does more to raise the costs of a trial and drag it out than it assures impartiality. Jurors would be more willing to serve if they didn’t spend more time being seated than actually serving during a trial.

Is this America where Judge W.R Voigt can send a man to jail without a trial? I thought everyone had the right to a trial by a jury of his peers before losing life, liberty or property. What right does a judge have to say that Harold Leland Crouch (or any other person) must go to jail for contempt of court? Judge Voigt violated Crouch’s basic constitutional right to a trial by jury. Crouch should have been able to post bond and be freed immediately.

What Harold L. Crouch did in Judge W.R. Voigt’s court was not entirely wrong, and he should be praised instead of held in contempt. It is the courts that should be taught a lesson.

The voir dire process has gone too far as it brings about a bias in a juror before the juror has a chance to hear the evidence in a case. Each attorney works hard during voir dire to ensure that bias is in favor of his or her side.

Voir dire does nothing to ensure the qualifications of the juror and the cleverness of the questions is often more important than the legalities of the actual trial.

I have served on numerous juries and each time I take an oath to render a fair and impartial judgment, which I take most seriously. My personal beliefs are left outside the court. I make up my mind by what is said and once inside that courtroom, not outside.

The juror is not on trial and should not be treated as if he or she is. This abusive process usurps the Constitution.

Where does it say that I have to be for or against the death penalty, for or against probation or any of the other insulting questions often asked?

Such questions relating to my legal qualifications to be a juror are fine, but nothing about my personal life should be asked.

I hope Crouch prevails so that a fair and impartial trial returns to be a part of our system as our Founders envisioned, and not as some judge dictates.

Despite the constitutional importance of jurors there is a lack of respect for them as shown by a lack of respect for their time.

Jurors’ time isn’t valued because it costs little for the courts to provide.

Lori Taylor an economist with the Federal Reserve Bank of Dallas argues that jury service in Texas constitutes an unfair tax on those who serve. She says the state requires jurors to surrender a valuable asset—their time—with little or no personal benefit and is therefore a tax.

Ms. Taylor’s study grew out of her own experience when she was selected to sit on a jury in a civil case in Dallas County district court. The problem, she concluded, was that jurors’ time isn’t valued because it costs little for the courts to provide.

Like most jurors around the state, Ms. Taylor was paid the minimum of $6 a day for her service, a reimbursement for expenses. However, Ms. Taylor and others have argued that the amount is almost on insult; it barely covers the $5.50 a day charge to park at the Dallas County courthouse. And . . . they’ve argued, it raises the likelihood of overrepresentation from the elderly, poor and unemployed—for whom jury service doesn’t mean a loss in pay. This appears to be even more true when one is provided with the information that only one out of five citizens show up for duty when summoned.


Lawyers manipulate jury selection such that citizens are prevented from their cases being heard by their constitutionally guaranteed jury of their peers.

We’ve all heard of race bias, gender bias, class bias, sexual orientation bias, et cetera. But maybe only a psychotherapist turned trial lawyer could come up with something called “personal responsibility bias.” Apparently this affliction is especially pronounced among strange people with “traditional family values” and “strong religious beliefs.”

That, at least, is the view offered by David A. Wenner in an $800 handbook offered by the American Trial Lawyers Association. Entitled ATLA’s Litigating Tort Cases, the book is advertised as “essential to every trial lawyer’s library!” As a recent dispatch by CNSNew.com reports, in a chapter on juries Mr. Wenner suggests that Americans with a keen sense of personal responsibility are just not the type of people with whom you want to try to play the “blame game”—especially “if the plaintiff was in the best position to avoid the injury.”

“The personal responsibility juror,” writes Mr. Wenner, who served as Co-chair of ATLA’s Blue Ribbon Commission on Juror Bias, “tends to see the world with bright line rules on how people should act . . . People should be self-reliant, responsible, and self-disciplined. When people act irresponsibly and are not self-disciplined, there are consequences. People must be accountable for their conduct.”

Hmmmmn. Mr. Wenner tells us these passages have been distorted: all he’s trying to do is ensure a fair trial for plaintiffs. But what does it tell you about the current state of our legal system that the same virtues that would be an asset in a friend or spouse or employee are deemed a liability in a jury of one’s peers?

Jurors are selected for their lack of any knowledge and little awareness of the things around them.

Juries are now merely weapons in the hands of amoral attorneys. The attorney's purpose is to win, not to find justice, let alone truth, and the jury is selected only for that purpose. The Florida lawyer who brought the new legal terror weapon of "class action suit" against tobacco companies rejected over 800 potential jurors before he could find 6 people who do not believe that anyone who smokes has freely chosen to do so.

Allowing both sides to eliminate jurors prevents any extreme view being represented even though our peers do include some who are extreme.

To the argument that including them would result in many hung juries, it would be a simple matter not to require a unanimous jury. It might be ok after experience and study to allow 11-1 or 10-2 verdicts.

Jurors are selected by mathematical models to obtain a particular bias.

Americans have an abiding belief in the common wisdom of the jury. But these entrepreneurial lawyers do not. Using focus groups, the lawyers figure out which jurors would be most sympathetic to their arguments and then maneuver them onto the jury. In the silicone breast implant cases, for example, they discovered that blue-collar men who like big bosoms would be most likely, out of guilt, to return verdicts for the plaintiffs. Discrimination is practiced overtly; as Olson shows, manuals explain that Mexican Americans are "passive" and "Orientals ... tend to go along with the majority."

Jurors are selected thorough focus groups by those who have the money to pay for them.

In addition to questionnaires, some lawyers do not rely entirely on their own ability to spot potentially biased jurors, rather, when they have clients who can afford to pay the tab--$5,000 to $20,000 and up, according to one trial attorney--they hire jury selection experts.[120] More recently, `scientific' jury selection has been associated with major civil litigation at the pre voir dire stage. The dry run trials organised by market research firms, not only tell the clients which arguments are most likely to impress jurors but they also presumably develop, based on the mock juror's response to the arguments, a profile of who should be sought and who avoided for the jury when the real trial comes.[121]


AND as to judges . . . their instructions to the jury often do not allow juries to do their job in the best way.

They fail to provide certain evidence. And allow almost any line of argument. And the evidence they do allow is sometimes questionable. Evidence has become a term of art rather than a fact. The Dallas law firm of Baron & Budd was caught with a 20-page memo telling asbestos plaintiffs how to testify: "It is important to maintain that you NEVER saw any labels on asbestos products that said WARNING or DANGER."

And then before the jury reaches a verdict they fail to give them guidelines on what the results of their verdicts would be.

And then if the judge has a dog in the hunt he may give instructions to the jury that foreordains the results. Instructions in the nature of: “how many times do you beat your wife”? Or in the case of one trying to retain property that by the deed he holds shows that he owns it: “Did the party abandon his property”?



AND as to judges. . . they and the law’s failure to give parameters to the jury result in wild verdicts.

In Late April, A Beaumont, Texas, jury voted to award $1 billion to the family of a plaintiff who allegedly lost her life as a result of taking fen-phen, a drug combination popular among dieters in the 1990s berfore it was linked to heart-valve damage. The woman, who was morbidly obese and whose family had a history of heart problems, took fen-phen for five months in 1997 before Wyeth Laboratories, the losers in the lawsuit, withdrew their drug Pondimin (the “fen”half of the combo) from the market. She also took four other diet drugs before being diagnosed with hypertension in 2002.

John O’Quinn, the Elmer Gantry of Texas tort law, preached to the jury that Wyeth had “acted with malice in marketing of this drug by putting its making of money ahead of human life and safety.” The jury awarded more than $113 million in compensatory damages and tacked on $900 million in punitive damages.

The verdict will probably be knocked down to something more reasonable—say $50 million. Wyeth has set up a $3.75 billion trust fund to accommodate the victims of fen-phen, but 75,000 people have already opted out of the class action and intend to sue separately. The idea that one victim with a good lawyer will walk away with about $1 billion of that pool is a little impractical. The verdict blatantly violates a Texas statute that says punitive damages can only double compensatory damages. But Texas courts—which have made suing major corporations a cottage industry—aren’t paying much attention. Indeed, the trial judge upheld the award.

What the verdict did emphasize is something that is inching towards becoming a consensus among experts—juries that hand down such mindboggling damage awards have no idea what they’re doing. The most dramatic research has been assembled by University of Chicago professors Cass Sunstein and Reid Hastie, working with a team that included Noble Prize winner Daniel Kahnenman of Princeton and David Schkade of the University of Texas, and published a couple of years ago as Punitive Damages: How Juries Decide (University of Chicag Press, 2002). Sunstein presented their findings at an April 28 conference on punitive damages in Wahington sponsored by the U. S. Chamber of Commerce.

The book includes sereral studies involving more than 8,000 jury eligible citizens in Illinois, Colorado, Texas, Arizona, and Nevada. In one study, “jurors,” who were paid for their time, were brought together in small groups over the course of five years for what amounted to mock trials. They were presented with evidence and jury instructions from a series of actual courtroom cases and asked to reach a verdict in two ways. They were asked to both rank the culpability of the defendant on a scale from zero to six, and to assign a dollar value in punitive damages that would reflect the degree of culpability.

The responses to the first question are extraordinarily uniform across the board,. says Sunstein.: ”The correlation is about .99” which is to say almost unanimous. “Race, sex, economic class—it makes absolutely no difference. We atttribute this remarkable degree of consensus to shared cultural standards in judging responsibility for social conduct.”

When it came to assigning dollar amounts that reflect this culpability, however, the results were all over the lot. “There’s a slight bell curve but it’s skewed far to the right,” meaning toward higher awards, says Schkade. “The figures ranged anywhere from a few thousand to hundreds of millions. People were obviously making a stab in the dark.”

Sunstein says these findings duplicate psychological results going back to the 1950s, where people were asked to perform a simple task like evaluating the brightness of a light or the loudness of a noise. “If you give people a scale from zero to ten, they come up with very uniform results,: he says. “But if you give them a scale from zero to infinity with no further explanation, The consensus falls apart. It’s called ‘scaling without a modulus.’ People need an anchor to have ther evaluation make sense.

“All this undermines the populist credentials of juries when it comes to assigning punitive damages,” he says. “When you ask a group of people to pick a number between one and infinity without any reference to what other juries have awarded in similar situations, you’re not matching human capabilities to the demand of the task.”
Sunstein and his coauthors assumed that juries would settle on an award amount in the manner of Olympic gymnastics judges—with the highs and lows thrown out and the group deciding on something in the middle. “In each case, we presumed that the median juror would represent the entire group’s decision,” says Sunstein. But the results were otherwise. In 500 deliberations, conducted with 3,000 jurors, “We found that, on average, where jurors found a high degree of reprehensibility, the jury was more punitive that its median member. Where perceived guilt was low, on the other hand, the jury was less punitive than its median member.”

Most stunning was this: In 17 percent of the cases where punitive damages were awarded, the group settled for the highest dollar award chosen by any juror; in 10 percent they reached a number higher than any individual juror had originally chosen. “The essential problems are compounded rather than alleviated by jury deliberations,” says Sunstein.

The researchers found three other factors that help explain the jury’s decision: (1) juries will give larger awards to plaintiffs who are viewed as “local”; (2) juries will give higher awards when the defendants are viewed as having a lot of money; and (3) juries will give higher awards when the plaintiff attorney asks for higher amounts. The last is particularly significant. It suggests that, in the no man’s land of punitive damages, plaintiff attorneys can “anchor” the jury’s thinking simply by asking for outlandish amounts. In one trial, simply tripling the plaintiff’s request from $50 million to $150 million raised the award by $35 million.

All this goes a long way toward explaining what is going on in American courtrooms. Tort reformers now generallly agree that rationalizing punitive damages would help curb the Wild West anarchy of jury verdicts. “What’s happened is the civil courts have essentially taken over what is supposed to be a punitive function,: says Walter E. Dellinger III, professor at Duke University Law School. “Yet at the same time, most of the protections afforded to criminal defendants by the Constitution have not been carried over for civil defendants.”

One of the most obvious is the Eighth Amendment;s prohibition of “excessive fines.: In a highly controversial decision, the Supreme Court decided in 1989 that the Eighth Amendment does not protect civil defendants because punitive damages—even though they might stretch into the billions—do not constitute “fines.” In State Farm v. Campbell, the Court did decide, however, that punitive damages could be regulated under the more ambiguous Fourteenth Amendment. The justices further suggested that punitive damages should not exceed compensatory damages by a factor of 9 to 1—which would still make the fen-phen verdict permissible.

The real question is whether juries should be picking these numbers at all—at least without some kind of statutory guideline. “When someone is convicted of armed robbery, we don’t say to the jury, ‘All right, how many years do you think they should serve? Pick a number between 1 and 80,’ “ says Dellinger. “We have statutory sentencing and then the judge decides.”

Trial lawyers, of course, will go to the mat to protect their right to charm a jury. “Punitive damages are delivered in only 5 percent of all cases,” says Thomas Goldstein, a Wahsinagton attorney who argued State Farm before the Supreme Court.” Frankly I can’t see where there’s any crisis at all.”

But with jury verdicts becoming a billion-dollar lottery, others are likely to feel that the time has come to act.



A solution. . .

Simply eliminate voir dire First determine what average percentage of the jury pool is made up of those who are biased or are crackpots. Let’s say the determination is 15% or 2 out of 12. Then simply pick the first twelve people randomly called from the jury pool and allow 8 to 4 verdicts. The statistical result would be the same. The need for jurors would be reduced by two-thirds. The time they would be used would by all accounts be cut by a third or one-half. They would be allowed to maintain their privacy. They would have a more positive experience. And the courts would be less backlogged. And lawyers would make less money. So the client who felt a mistake was made would now have the money to appeal.

It is that next to last item that has prevented the change from happening.



And a few other ideas . . .

In the early Republic, the standard practice of due process was to argue all issues of law in the presence of the jury, which enabled them to learn what the legal issues were along with the judge, that is, the presiding magistrate, and we can presume that this practice was part of what the Founders meant by "due process" in the Constitution. However, judges have abused their discretion by adopting the practice of requiring pleadings to be submitted to them by the litigants in writing, and not allowing copies to be provided the jury, nor allowing the attorneys to make legal arguments in the presence of the jury. This has given judges control over the trial in ways that largely subverts the protections that the jury is supposed to provide, because it does not allow jurors to hear argument, in a criminal trial, that the court does not have jurisdiction, or that the charge is not authorized by a statute, or the statute by the state or federal constitution, or that the statute is misapplied to the facts of the case, or that the rights of the accused were infringed by investigatory, prosecutorial, or judicial misconduct.

http://www.amatterofjustice.org/amoj/52articlespage.cfm?articleno=40

The jury has a right to judge both the law as well as the fact in controversy.

The jury has the right to determine both the law and the facts.

The jury has the power to bring a verdict in the teeth of both law and fact
Oliver Wendell Holmes, U.S. Supreme Court Justice, 1902

The law itself is on trial quite as much as the cause which is to be decided