Vol. 5, No. 3 (March, 1995) pp: 111-115

WE, THE JURY: THE JURY SYSTEM AND THE IDEAL OF DEMOCRACY by Jeffrey Abramson. New York: Basic Books, 1994. 308 pp. Cloth $25.00.

THE JURY: TRIAL AND ERROR IN THE AMERICAN COURTROOM by Stephan J. Adler. New York: Times Books, 1994. 285 pp. Cloth $25.00

Reviewed by James P. Levine, Doctoral Program in Criminal Justice and Department of Government, John Jay College, City University of New York.

On the last page of his book on the American jury system, Jeffrey Abramson says: "By the time this book reaches print, there undoubtedly will be fresh trials splashed across the headlines and animating dinner conversations across the land." (p. 250) Little did he realize how prophetic he would be, as we are now being treated to daily television coverage and hourly recaps of what has been called the "trial of the century" -- the O. J. Simpson case. Pundits galore have been rendering interpretations of the case as it unfolds, but Abramson's thoughtful book which came out before the trial started has much more to offer in helping us understand and assess the jury's role in that case and others. Whether Simpson's jury convicts, acquits or hangs, Abramson's book will help us understand what happened. It is a useful addition to the still too-sparse book-length literature on juries.

The focus of WE, THE JURY is policy analysis; Abramson is interested in assessing the jury system and critiquing specific practices. Thus, specific chapters focus on policy questions that have been debated historically and continue to cause controversy today: the appropriate venue for trials, jury nullification, jury selection practices such as the use of peremptory challenges, the expanding utilization of "scientific" jury selection, the unanimous verdict rule, and the jury's role in capital cases. Treatment of these issues is aided by two perspectives that infuse the book's contents -- careful description of the jury's historical evolution and rooting of the analysis in a normative theory about democratic politics. In arguing that the jury's strengths and weaknesses emerge from its popular base, Abramson helps us understand decisions such as the first Rodney King verdict which have so damaged the jury's reputation. In his own words: "The direct and raw character of jury democracy makes it our most honored mirror, reflecting both the good and the bad that ordinary people are capable of when called upon to do justice." (p. 250) At its best, the jury in Abramson's estimation functions as a uniquely deliberative populist institution, an opportunity for a relatively diverse group of citizens to apply law and interpret evidence drawing on their own experience and responding to their own values. In critiquing various jury practices, Abramson starts from an unabashedly stated ideological position: he favors "deliberative democracy." He wants to enhance cross-cultural communication on the jury which he thinks makes judgments fairer and more rational, but he deplores policies such as proportional representation of races, ethnic groups, and genders which would turn jury decision-making into little more than an instrument of pluralist politics. His particular version of democratic theory works well enough in assessing certain policies such as broadening of jury pools and elimination of

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peremptory challenges, but it fails to help him reach consistent positions on other issues. He favors informing juries of their power to acquit the factually guilty if applying the law would be unjust as a means of democratizing law enforcement, but he would remove the jury's role in making death penalty decisions because studies have shown a degree of racial prejudice at work. This inconsistency is forgivable, however, as an inevitable result of Abramson's refreshing pragmatism -- his recognition that there are other values such as combating racism that compete with democratic ideals in the fashioning of optimal judicial processes.

Little new ground is broken in WE, THE JURY but a copious amount of important information on juries is assembled with commendable documentation produced in the forty-five pages of notes. There is perhaps a bit of excess: some of the material is a restatement of well-known historical material, such as the lengthy treatment of John Marshall's handling of jury selection in the Aaron Burr treason case. Similarly, while the well-respected empirical study of life-or-death decisions made by Georgia juries in capital cases done by Baldus and his colleagues is indeed worthy of substantial coverage, one wonders if it was necessary to give so much detail that footnotes 74 through 136 in Chapter 6 (pp. 295-296) are with one exception references to Baldus's book. But since this is a book primarily intended for a lay audience most of whom are unaware of these materials, such substantial borrowing from the work of another is perhaps justifiable.

There are occasional tidbits which even assiduous students of the jury probably do not know like the wholesale exclusion of Native Americans from the jury (p. 129). Illuminating insights also appear in the text, such as the point that a person willing to presume a defendant's guilt in a jury consultant's poll where there are no consequences might well be more open-minded while performing the truly awesome responsibility of actually serving as a juror (p. 159). But the jury research community should not expect to discover a great amount of new data, as the strength of this book is in its plausible interpretation of facts already known.

While Abramson's treatment of the literature on juries is rather comprehensive, there is one glaring omission -- the voluminous body of mock jury studies. Although such simulations have profound methodological shortcomings which have been detailed elsewhere, their sophistication has improved markedly in recent years and they have helped us understand many aspects of jury decision-making such as the jury's handling of different kinds of evidence. Abramson brings in some such material when he treats the relationship between juror demography and bias, but treatment of other issues such as jury nullification would have been better informed by touching base with this kind of research.

It is not surprising that Abramson should largely ignore this body of work, as he comes to the study of the jury from his roles as a practicing lawyer and a political theorist. This vantage point is a source of the book's strength in coming to grips with pithy normative issues, but it also contributes to

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occasional flaws in analysis. Demonstrating the causal impact of assorted variables on jury decision-making is no mean feat, but Abramson's distance from the world of empirical social science occasionally causes him to slip into dubious cause-and-effect claims. Thus, in dismissing the impact of scientific jury selection on a Los Angeles jury's failure to convict Peggy McMartin and her son of sexually abusing children at their pre-school, Abramson says: "The fact that a second jury also deadlocked is further indication that the verdicts were the result of flawed evidence not perfect jury selection (p. 170)." There is simply no way to show conclusively what factors were at work by comparing outcomes in two trials.

This, however, is nitpicking. Such lapses are few, and they are minor. WE, THE JURY formidably tackles many of the central issues that command the attention of those of us who study juries. It provides many rich historical and contemporary illustrations to show the evolution of the American jury, exposing its positive features and its pitfalls. It is not surprising that its author is a professor of politics, because unlike many works on the jury this one cogently fuses description of its functioning with important issues of political theory. Alexis de Tocqueville, who a century-and-a-half ago rightly noted in DEMOCRACY IN AMERICA that the jury was "above all" a political institution, would be proud of the book. So should the contemporary profession of political science.

In contrast to Abramson's balanced presentation, Stephan Adler's tract is a thinly-veiled attack on the jury as it presently functions. Despite lip-service paid to some of the jury's virtues and a conclusion that argues that it is an institution worth keeping, the author's anti-jury predilections emerge early in the book and set the tone throughout. Adler's contempt for juries is no secret.

Adler is the legal editor for the Wall Street Journal. This no doubt accounts for the book's format: it is reportage, a series of six case studies based primarily on examination of transcripts and interviews with jurors. To Adler's credit, several of the cases he looks at escaped the glare of publicity; there is new material for the jury connoisseur, much of it unearthed by dogged investigation and presented in a riveting, well-written fashion. But to a much greater extent than Abramson, Adler uses his material to jump to unwarranted conclusions about the bases of jury decisions. The cases are grist for his polemic, not heuristics to help us better understand jury functioning.

Except for the conclusion, each chapter of this book details a particular case in which the jury's verdict is second-guessed. He is impressed with one verdict, a Texas jury's decision to sentence to death a triple murderer (who himself had been a victim of severe child abuse). As for the other verdicts, Adler is at odds with the juries who are portrayed as biased, manipulated, or just plain stupid. These blunders, such as the acquittal of Filipino "first lady" Imelda Marcos in the face of substantial incriminating evidence of financial skullduggery, reveal the ineptness of the jury and the dire need for reform. As Adler himself puts it, the wonderful promise of the jury suggested in so many judicial opinions and much political rhetoric is dashed by the keen disappointment of its woeful

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behavior. The cardinal flaw in the analysis is the assumption made by Adler that he is right and the jury is wrong. This is an error parallel to the one made by Kalven and Zeisel in their classic work THE AMERICAN JURY (Boston: Little Brown, 1996) where they assumed that judges presiding over jury trials could figure out the correct outcome and that any discrepancy with actual jury verdicts was the result of extralegal factors that contributed to the juries' mistaken results. Just as it may have been the juries in such cases who were correct and the judges who were wrong, so too here: Adler's version of reality could well be off-base and the juries may have gotten it right.

The consistent direction of the discrepancy between the author's judgement and the juries' verdicts renders the analysis particularly suspect. In the two criminal cases, the jury acquits when Adler would have convicted. In the three civil cases, the jury opts for the plaintiff (in one case awarding $8.15 million) when Adler sees no liability at all. Could it be that Adler's own pro-prosecution, anti-plaintiff conservatism interfered with his ability to see things objectively?

We will never know the answer. For despite the admirable care that went into these investigations, it is methodologically impossible to know with certainty what "really" happened and to put one's fingers on the "real" causes of the jury's decisions; it is all guesswork. He claims in his review of a suit against Pizza Hut for having served too much beer to someone who wound up hitting a bicyclist with her car that the jury was swayed by lawyers' shrewd appeals concocted on the basis of prior case presentations to a focus group engineered by a jury consultant. Says Adler, in explaining why Pizza Hut settled the case after a mistrial rather than risk a second trial: "[Jury consultant] Art Patterson's behind-the-scenes advice to [lawyer] Cohen had proved crucial in forcing Pizza Hut's hand." (p. 113) But for the focus group, Pizza hut would have won and justice (in Adler's view) would have triumphed.

This conclusion is specious. Not only is it impossible to ferret out the decisive influence on the jury, but this is just the kind of case where facts and values are inherently mixed and the jury is forced to make some kind of political judgment. In assigning blame for injuries caused by a drunk driver, the jury had to examine the chain of responsibility. And in so tracing it back to a business which refused to train its employees about refusing to serve alcohol to intoxicated patrons, the jury had to make a judgement about the social responsibilities of corporations. Perhaps there are no right or wrong answers, but alternative outcomes the legitimacy of which depends on one's political perspective.

I am a supporter of the case study in jury research, recently having written a still unpublished defense of this methodology. But the major drawbacks of this approach, threats to "internal validity" and the perils of drawing conclusions about causation, undermine Adler's analysis. It is incumbent on practitioners of this methodology to use utmost caution as they unravel the underpinnings of verdicts, and this Adler

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failed to do. In an instructive little book entitled CASE STUDY RESEARCH: DESIGN AND METHODS (Newbury Park, CA: Sage, 1989), Robert Yin gives the following sage advice: "Case study research is remarkably hard, even though case studies have traditionally been considered 'soft' research. Paradoxically, the 'softer' a research technique, the harder it is to do (p. 26)." Although Adler makes valiant attempts to use other studies to bolster his analysis, the cases are the foundation of his analysis and the overly facile conclusions which he reaches demonstrate the wisdom of Yin's words. Adler's damnation of the jury is not justified empirically.

The jury is a hard nut to crack; it remains a mystery. It deliberates in secret; it files no report explaining what it did; and it generally disappears into anonymity after presenting its verdict. Mock jury research can probe some of its dynamics, but concerns about the artificiality of such simulations do not go away. Thus, for all the outpouring of articles on the jury in social science and legal periodicals, our knowledge of the jury is still primitive.

This is all the more reason why both Jeffrey Abramson and Stephan Adler deserve congratulations. Without waiting for "all the data to be in" which will take decades if not centuries, they dare to give us the "big picture" -- a portrait and an evaluation of an enigmatic institution which is an enduring source of political debate. Anyone who would like to have more enlightened perspectives in partaking in these debates would do well to read these two books.

Copyright 1995