Jury deliberation bears no resemblance to thinking. In fact, it actively discourages quality thinking. How can I possibly say that about a hallowed institution which has been around for over 1000 years? Easy, and I will use the example of my personal experience on a jury.
My one and only jury event (may I be forever spared from another!) happened many years ago in Marin County, California. After the prosecution and defense rested, the jury was charged with determining the guilt or non-guilt of a 55-year-old man who was arrested and charged with drunk driving. The facts were straight-forward and uncontested during the trial and in the jury room.
A highway patrol officer observed the man weaving dangerously for 3 miles on a major freeway, crossing lanes indiscriminately without regard to the safety of other drivers (Fact #1). The man was pulled over and given a breath test, which he failed (Fact #2). The officer then searched the man’s car and found an open, half-empty bottle of whisky under the driver’s seat (Fact #3--illegal in CA if an opened container of any sort of alcohol is anywhere inside the car). The man was arrested and taken to county jail where he was given a blood test, which confirmed that he was legally drunk (Fact #4).
Let the “fun” begin. To me the situation was open and closed: guilty as charged. I was the only person with this view when we started deliberating and the only one when we finished (a majority of jurors decided the outcome---a unanimous decision was not required). It is important that you know that the jurors were from Marin County, a wealthy suburb of San Francisco, were mostly professionals, and clearly smart and articulate.
I wish I could have filmed this. If justice were not so perverted, it would have been hilarious. The defense attorney had presented arguments that addressed the man’s life problems, such as his being recently divorced and disaffected from his son, and having trouble adjusting to retirement. These influenced my fellow jurors hugely, and they worked hard to explain each of the facts in a way that would get the man off. Naturally, such “explanations” (e.g., he did not put the open whiskey bottle in the car, someone else did) failed because the evidence was clear and simple, and compelling on the face. The group expressed considerable sympathy for all the man’s troubles, and a general non-too-small dislike of the sheriff and highway patrol, referred to by one non-black juror as “the man.” The group, with me voting guilty, judged him innocent.
So, what happened in that jury room? Very simply, sympathy triumphed over fact and thought. Feeling sorry for the man was not the problem. I felt sorry for him. But he broke more than one law and endangered others. It looked to me that the folks on the jury came with agendas: feeling sorry for someone can be more important than anything else, and “cops” are not very nice people. The “thought” used was simply the aggravated distortion of each of the facts to try and get the man off without having to admit that sympathy for the man and antipathy for the police were the real factors. This type of “thinking” is akin to the police catching a burglar on your lawn at 3am with your computer in his possession, and he argues he was returning it, and the police accept that.
When I quizzed the group members, they assured me that sympathy for the man and antipathy toward the officers were not the reasons they voted to acquit. They honestly thought they had explained away any guilt by their rendition of the facts, one that I saw as tortured in the extreme and a near unbelievable violation of common sense, all to produce the outcome they wanted.
Critics will no doubt say that my experience was unique. Unfortunately, it is not. Reason #1 is other examples. No doubt most readers will recall the McDonald's case in which the top of an elderly woman’s coffee, held between her legs, came off and scalded her. The jury was understandably sympathetic, but the jury failed to find her culpable in any way, awarding multi-millions. Even more interesting from the standpoint of non-thinking is the truly infamous O.J. Simpson trial. Exceptions? Let’s assume so. Just for the sake of argument, of course! Be that as it may, my next point is incontrovertible.
Reason #2 is that my observations of friends, relatives, clients and folks in general over nearly 40 years demonstrates that most people cannot think objectively if their and their children’s lives depended on it, and this is about everyday behavior, nothing so serious as a jury charge. The psychological research is now beyond compelling: most of what we think, feel, and do is driven by our unconscious. Being unaware of this means we get to live our false story of objectivity with impunity. Certainly juries can produce just outcomes, but when people have something at stake (most of the time), they will default to their need and justice be damned. Since the latter cannot be admitted, a pretence of thinking is provided by logical contortions and ex post facto justifications. If you wish more information on how juries are paneled and the often perverting roll of jury consultants, this will add a bit more disturbance to the pot. And this leads me to my grand conclusion: since thinking and fairness in their most sophisticated senses are rare to non-existent in jury deliberations, they should be abolished in favor of a judge or a panel of judges.
But judges are fallible, too, you might say. Indeed so. But there is one huge difference between judges and juries: the judge’s opinion must be argued logically and supported and, most importantly, is reviewable and reversible by a higher court. Jury deliberations are absolutely closed, and reviewable by no one, a prescription for a breakdown in thinking and for misbehavior if ever there was one.
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