What certainly cannot be reproduced by researchers is the process we call deliberation. Like many others, I have served on committees charged with difficult decisions, but none of these matches the bearing and demeanor I have observed in jury rooms. Even is a car-theft case, reaching a verdict took six hours. Perhaps what impresses me most is that no one, at least in my experience, tried to dominate the discussions, and that jurors listened to what the others were saying. After the first half hour, the foreman usually became just another juror.
In my first murder trial, the initial balloting—which we decided to take before we started talking—tied 6–6. Nor did this surprise me. As is usually the case, most of us had in effect been watching different trials. We then sought to move from twelve versions to one, or at least to sufficient consensus for a unanimous verdict. By the fourth hour, three of us changed our votes, now making it 9–4. We were reminded of certain facts we had ignored or felt were unimportant, or we were shown that other interpretations were possible. At one point in writing about the General Will, Jean-Jacques Rousseau said that for democracy to work, citizens must be willing to say, “I was mistaken.” This is not something most of us are willing to do; yet it must happen if juries are to function, and I have observed more than a few of my fellow New Yorkers make that admission. About two hours later, we were down to 10–2, and it then took another four to arrive at 12–0. At no point were the divisions along racial or other social lines.
And as we moved toward unanimity, it became evident that each of us was gaining a broader perspective. That twelve minds can take in more than one is the epistemological rationale for the jury system. But the rationale only works when bond traders are willing to listen to bus drivers and learn from them. Thus far the only place I have found that happening is inside the jury room.
In theory, juries attend to the facts, leaving the judge to settle matters of law. If only the distinction were that simple. Hazel Thornton’s account of the Menendez trial shows that the “facts” her jury had to find were actually legal constructions. As everyone must know, Erik and Lyle Menendez admitted that they had killed their parents, claiming that there were exonerating circumstances, ranging from preemptive self-defense against sexual abuse, and even the threat of murder by their father, to impaired mental capacity.3 They stressed that they were not confessing to a crime. For its part, the prosecution argued that a felony had been committed and the brothers must be punished.
So while the jury was relieved from finding whether the sons had caused their parents’ deaths, they were given what turned out to be an even more formidable task, deciding what class of offense—if any—had been committed. As will be recalled, two juries sat in the courtroom, one for each brother. Thornton was assigned to the jury hearing the case of Erik, the younger brother. To complicate matters further, she writes, each jury had to decide whether its defendant had committed the same order of crime when killing the two parents or if the two deaths represented two types of slayings.
Nor would things get simpler. The prosecution gave each jury the same set of choices. Each brother was charged with having committed all four of the following crimes against each of his parents: first-degree murder, which carries a mandatory death sentence in California; second-degree murder; voluntary manslaughter; involuntary manslaughter. And, as the defense said, there was a fifth alternative: that they had committed no crime at all. In law and in logic, the young men could not have committed all four or even any two of the offenses that had been entered against them. So the jury’s job was to determine which offense—if any—took place when each defendant participated in each death. Thus Erik’s shooting his father might be defined as second-degree murder, while Lyle’s firing at his mother could be involuntary manslaughter—or vice versa. (Votes would also be taken on charges of conspiracy.)
After almost five months of testimony, the juries retired to deliberate. Some crime had clearly been committed, but which of the four it was for each brother depended on various combinations of conditions. Thus one of the “facts” each jury had to ferret out was whether the particular brother they were concerned with had “intended” to kill either or both of his parents. (Needless to say, each jury also spent a lot of time speculating about the other brother, since either brother’s intention could turn on the relations he had with the other.) At issue too was whether “intent” to kill, which requires a clear aim to bring about death, might have been accompanied by “premeditation,” i.e., a previously planned scheme to kill, although the distinction between the two is often murky. In first-degree murder, both states of mind must be present, and they must also be combined with “express malice,” i.e., a clearly indicated desire to harm which, again, is all too easily confused with the other legally required states of mind. Second-degree murder also needs intent, but does not require premeditation; the jury had to find only “implied malice.”
The two different manslaughter charges contained similarly puzzling distinctions, hinging on how far the accused were in control of themselves and to what degree, if any, they had themselves been abused or had suffered psychologically from sexual abuse. And each jury was expected to reach a 12–0 agreement—including agreement about motives—that “factually” described each brother’s shooting of each parent.4
Not surprisingly, Thornton tells us that her jury kept going back to the judge for clarifications on definitions, and each time he read them abstractly phrased standard definitions that offered little enlightenment.5 After 106 hours of deliberations, she and the others on Erik’s jury declared they could not reach a unanimous decision; and thirty-three hours later, Lyle’s did the same. What most of us recall is that the trial ended with a “hung jury.” Yet as Thornton’s book makes clear, this does not adequately describe what happened. All twenty-four of the jurors felt that the brothers had committed a crime when they killed both of their parents. But they divided sharply over which of the charges best described what had occurred. Only one of the twenty-four felt that involuntary manslaughter was an appropriate verdict, and that juror applied it only to Lyle’s slaying of his mother.
The gender of the jurors counted heavily. In Erik’s case, six men, impressed by the brothers’ apparent interest in inheriting money, found him guilty of murdering his parents, while six women thought the intimations that he had been sexually abused by his father raised enough doubt about his motives to justify a finding of manslaughter. Mrs. Thornton’s diary entry for the day the jury heard one of the most important pieces of evidence is revealing of her own state of mind:
Okay now we’ve heard “THE TAPE,” the real “confession” tape in which Dr. Oziel recorded part of an actual session with the boys, with their cooperation, on 12/11/89. This is supposedly the most damaging evidence against them but, in my own mind, the way things have been developed over the past four months, it only served to strengthen their defense! True, they never directly mentioned self defense or abuse on the tape, but it could be construed (and was construed by Ms. Abramson and Dr. Burgess) that there were many allusions to both.
Clearly the defense lawyer, Leslie Abramson, made a strong impression on Ms. Thornton and her fellow women jurors. (“All I know is, win or lose, she is worth the one million dollars I heard she was being paid.”) But the bitter split between men and women in this case seems to be exceptional. Jeffrey Abramson notes that women jurors tend to talk less than men and are more apt to vote for guilt in rape cases. Even so, in general, he finds “no evidence that women and men end up voting as blocs on juries.”
As matters now stand, jurors are not forewarned that they may have to diagnose mental and emotional conditions like premeditation, intention, and malice. Nor, at least in some cases, should they be asked to. The table below shows how what was being demanded of the Menendez case juries was virtually impossible:
to come to four different 12–0 decisions on a tangled web of words far removed from any recognizable realities.
Mrs. Thornton hardly mentions the mandatory death penalty but it is likely it was very much on the minds of the jurors, particularly the women jurors, and that it was not objectionable to six of the male jurors. Indeed, as the deliberations open, Mrs. Thornton writes, “my worst nightmare has come to pass. Our initial vote, specifically as to the charge of Murder One of Jose [the father]: Six Men—Guilty, Six Women—Not Guilty.”
What happened in the Menendez case supports Stephen Adler’s argument that we can ask too much of jurors. Why not let them decide whether the defendant has knowingly committed a more simply defined felonious act—instructions on that could be given—and then give the judge broader scope to determine the class and severity of the offense? Such a reform would have to be very carefully worked out, and it could allow jurors to exclude the death penalty. It would also avoid much of the needlessly bewildering complexity that juries must now contend with. In fact, something rather like this happens when, after hearing the jury’s verdict, the judge sets the length of the sentence, although the discretion allowed federal and state judges is unfortunately more and more limited.6
In one of the trials I observed as a juror we, too, had to reach a verdict not simply by establishing the facts but by defining a legal conception. A young man was charged with “resisting arrest.” The facts, as we later reconstructed them from the testimony of two policemen and three witnesses, were that an officer had told him to stop but he had continued walking. One of the officers tackled him, put on handcuffs, and hustled him into a patrol car. In our deliberations, we agreed early on that the defendant had ignored the officer.
But was the defendant walking away from an “arrest”? None of the witnesses—including the policemen themselves—testified that the officer had said, “You are under arrest.” No one claimed that the man had been orally charged with a specific crime, or that he had been read his rights. When we took our questions to the judge, she told us that the law did not have a precise definition of “arrest,” so it was for the jury to decide whether one had actually occurred.
Although this jury had on it a Pulitzer prize-winning columnist known for his commentaries on urban life, the best answer came from a hospital kitchen worker, who pointed out that it would be impossible for police to function at all if civilians could walk away with impunity when told to stop. In fact, etymology prevailed: if an officer chooses to stop you, you are then and there “arrested.” This is so even if he simply signals you, without saying a word. So being under arrest requires no formalities and might last less than a minute. At least so we concluded, and the judge said she liked our definition. Since all this occurred in a city court, it seems unlikely that our definition will be adopted in case law.
While I continue to have doubts about presenting jurors with several charges for a single offense, I should add in fairness that such options sometimes serve a practical purpose: graded alternatives give jurors room to maneuver. In one of my trials, a young woman plying her profession was being harassed by a drug dealer. She called for her protector, who dashed gun in hand from a nearby bar and proceeded to fire. As it happened, he missed his target and killed a bystander. We all managed to agree that a slaying had been “intended,” which made it some kind of murder. But two of us were not persuaded that it had also been “premeditated,” which was necessary for a first-degree conviction. So the rest of us offered to vote for second-degree murder to get a unanimous verdict. Since we knew that a lesser charge would bring a lighter sentence, we were, in effect, engaging in a variant of plea-bargaining on behalf of the defendant. Legally, this should not happen and judges warn against it, since sentencing is supposed to be outside the jury’s responsibility. Still, everyone knows there would be far fewer 12–0 votes if juries adhered to the letter of the law.
Throughout the Simpson trial, there has been only one charge: first-degree murder, which was all the overconfident prosecution chose to file. This, as has been noted, requires that all the jurors agree that there was intent, premeditation, and malice. However, California law allows the judge, at a trial’s end, to give the jury more choices. The defense may express an opinion to the judge on this matter, and it would probably press for the single, original charge as the best way of getting a divided jury. While the prosecution can no longer seek a longer list of charges, they would probably now prefer one in hopes of salvaging some kind of conviction.7
Michael Knox devotes most of his book to describing how sequestration has affected the Simpson jurors. It is a dispiriting story. How those who remain have endured this confinement for more than seven months defies comprehension. While each has a single room on a special hotel floor, they are not allowed to visit one another even to exchange a few words. The usual, and entirely defensible, prohibition against discussing the case has been carried to extreme lengths, reflecting a degree of caution and mistrust that seems to me absurd. Most personal conversations are prohibited. The only choices are to be alone in your own room or to be thrown in with all the others, where the main activities are watching television or chatting warily in everyone’s else’s hearing. Armed and uniformed deputies are always on hand. Nor have these adults been allowed even a glass of wine at dinner or a few beers at the weekend. For a couple of jurors to have dinner together in one of their rooms is out of the question. All these restrictions are based on the assumption that if the jurors are left alone for an instant outside the sight of a deputy, they will start discussing the trial. The same stricture holds with visitors, who can only be seen in the common room, with exceptions made for spouses who, according to a dismissed juror, can make conjugal visits only between 7 PM and midnight and can’t leave earlier even if they want.
They live in a state of collective solitary confinement, and some resent it. “When you’re sequestered,” Knox observes, “you can’t avoid anyone.” And, as in all confined settings, “minor incidents became major blow-ups,” exacerbating personal enmities. Some liked to chat at breakfast, while others preferred silence. Nor would separate tables solve the problem, since they shared a small dining room. Reading this, I see that the jury bonding I mentioned earlier worked when all of us went home at the end of each day, and wonder whether the many months of confinement in a Los Angeles hotel will affect the trial’s outcome. Some have predicted that the jurors will blame the state and the prosecution for unreasonable restrictions. Perhaps the discipline of deliberations will overcome the animosities. Still, tensions may recur in the evenings and over weekends, where they will again be under guard and at which time discussing the case will again be forbidden.
All of which raises the question of whether sequestration is necessary at all, even in highly publicized cases. My original view was that if jurors were allowed to go home, they might have to fend off friends or strangers who wanted to discuss the case, not to mention intimidating mail or telephone calls, since there would be no assurance that their identities would remain secret. But I learned from Hazel Thornton’s book, Hung Jury, that the Menendez jurors were permitted to return home every evening, not only while testimony was being heard but also during deliberations. In the publicity and popular feeling it aroused, the Menendez trial was not far different from the Simpson case, yet apparently no juror was approached. Nor is there reason to believe that any of them read or watched reports of the trial. They failed to reach a verdict for reasons I have mentioned and not because leading a more normal life put their objectivity in doubt.
And what of Stephen Adler’s proposal that we jettison juries altogether? With complex civil trials, he has a strong case. In such matters as patent infringement, securities fraud, anti-trust violations, even product liability, decisions could well be left to a judge. However with charges such as libel and employment discrimination, the facts are more readily grasped and deserve a public forum. For criminal cases, neither Adler nor other critics have shown that judges acting alone are more likely to render convincing verdicts. The issue goes beyond deciding whether an estranged husband committed murder outside a house in Brentwood. And here Viscount Hewart’s stricture still holds: “Justice should not only be done, but should manifestly and undoubtedly be seen to be done.” Requiring unanimity from a panel of twelve people goes a long way toward assuring the rest of us that, whether doubts prevailed or were overcome, the verdict was based on careful and often painful thought.
—August 24, 1995
Thus the judge did not allow the brothers to claim a "perfect selfdefense," since had the jury found the claim persuasive, it could have won them an acquittal. See Elizabeth Hardwick, "The Menendez Show," The New York Review, February 17, 1994.↩
As Norman J. Finkel points out in a new book, the judicial system asks jurors to adopt not only the assumptions but also the reasoning of lawyers. See his Commonsense Justice: Jurors' Notions of the Law (Harvard University Press, 1995) to be published in October.↩
I find it somewhat ironic that legal professionals, who often challenge lay opinion, are willing to let juries differentiate degrees of illegal behavior and grapple with abstractions like "malice" and "intention." The best discussions I have seen focus on civil suits. See Stephen A. Wiener, "The Civil Jury Trial and the Fact-Law Distinction," California Law Review, December 1966, pp. 1867–1938.↩
Indeed, recently adopted Federal "guidelines" employ a point system to constrain judicial latitude in sentencing. See David J. Rothman, "The Crime of Punishment," The New York Review, February 17, 1994.↩
For information about California law, I am grateful to Court Television and Ms. Gigi Gordon, who practices law in Santa Monica.↩
Thus the judge did not allow the brothers to claim a “perfect selfdefense,” since had the jury found the claim persuasive, it could have won them an acquittal. See Elizabeth Hardwick, “The Menendez Show,” The New York Review, February 17, 1994.↩
As Norman J. Finkel points out in a new book, the judicial system asks jurors to adopt not only the assumptions but also the reasoning of lawyers. See his Commonsense Justice: Jurors’ Notions of the Law (Harvard University Press, 1995) to be published in October.↩
I find it somewhat ironic that legal professionals, who often challenge lay opinion, are willing to let juries differentiate degrees of illegal behavior and grapple with abstractions like “malice” and “intention.” The best discussions I have seen focus on civil suits. See Stephen A. Wiener, “The Civil Jury Trial and the Fact-Law Distinction,” California Law Review, December 1966, pp. 1867–1938.↩
Indeed, recently adopted Federal “guidelines” employ a point system to constrain judicial latitude in sentencing. See David J. Rothman, “The Crime of Punishment,” The New York Review, February 17, 1994.↩
For information about California law, I am grateful to Court Television and Ms. Gigi Gordon, who practices law in Santa Monica.↩