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Carl E. Person
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How the Constitutionally-Guaranteed Jury System Is Being Threatened with Irrelevance and Destruction by the Ever-Increasing
Concentration of the Economy
1st Published on 3/24/03; Last Update: 11/12/07 2:00 pm
Defining the Nation's Jury Problem
The jury system is an important part of the governmental process guaranteed by the U.S. Constitution. The 7th Amendment 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 a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
As I see it, the nation is failing to preserve the right to a fair jury, because juries are failing too often to render the proper verdict in the most important cases presented to them. I say this without offering any statistical evidence, and only from what I am experiencing directly and observing indirectly.
Juries often fail to understand the importance of the civil actions in which they sit in judgment, and consequently fail in their duty to render a just verdict. This results directly in a failure of the court system to function properly as a check on the excesses of the persons who control the goverment, and enables the rich to extend their power over the government, the country and the human beings living therein.
This is not happening accidentally, it seems to me.
How the Nation's Jury Problem Revealed Itself to Me
I have noticed over past 20 years or so that major corporations are more than willing to submit important issues of fact for the jury to decide. For many years, I have wondered why this is so.
I think I have the answer.
The important issues being submitted to juries are in complicated economic and business cases, involving antitrust, patents, copyrights, trademarks and other matters involving billions of dollars at times.
I have seen that juries have rendered unjust, bad decisions contrary to the evidence and now believe I understand some of the main reasons why this is taking place.
Increased Concentration and/or Monopolization of the U.S. Media
It is no secret. The wave of mergers and acquisitions during the past 20 years, especially in the media industry, has resulted in the nation's television and radio stations, newspapers, magazines, cable television and media networks winding up in the hands of fewer and fewer persons (the increased concentration), and in most cities you'll find that there is a monopolization of newspapers, cable, and in some instances television, with an oligopoly in other cities as to television and radio.
There are fewer persons determining what is being provided as news, and it is clear to me at least that the media does not report to the public on the commencement of important economic litigation brought by non-governmental plaintiffs. The amount of important economic litigation brought by governmental plaintiffs is minimal and of little consequence, so that willingness to cover non-existent governmental lawsuits is still no coverage.
The reason for this failure to cover is simple. The media does not want to encourage lawsuits which could adversely affect the main advertisers and owners of the media. Finally, in spite of the media blackout of coverage, the media might report on an important private economic lawsuit years after it has been commenced, and after the jury has rendered its decision, when the media cannot be of any help to the private plaintiffs, and can help to slant the reports so that the prevailing plaintiffs might have a more difficult time prevailing on appeal.
The media's failure to report important private economic litigation is deliberate. The reporters for Associated Press and the main newspapers have offices in the federal district courts throughout the U.S., and they have access to every new lawsuit which is filed, but they do not report on important economic lawsuits (such as Robinson-Patman Act lawsuits brought by private interests against major corporations). The reporters know that their editors will not permit the stories to run, because the stories would be adverse to the interests being served by the media, including the interests of the owners of the media.
Without discussion by the press, it's hard to find fault with bored members of a jury who know (erroneously) that what is going on in the courtroom is not important because nothing has been mentioned in the media.
Thus, it seems clear that the failure of juries to do their job justly results to a great extent from the failure of the monopolized media to report fairly on economic issues which are against the interests of the major corporations and the media serving and owned by them.
If you don't see a problem, it's difficult to try to come up with a solution. On the other hand, if you can identify the problem, which I think I have done, then the solution(s) can be developed. This is what I'm trying to do.
Reasons for Juries Rendering Unjust Decisions in Important Economic Cases
The reasons for juries rendering unjust decisions in important economic cases appear to be:
- Monopolized Press Constantly Tells the Public that Lawsuits are Bad. You've seen and heard the press reporting on a handful of the millions of cases brought each year, pointing out how a few of the are (according to the news medium or commentator) allegedly frivolous, which/who then communicates the idea to the unknowing public that there is too much litigation in the country and that there ought to be more laws prohibiting the commencement of lawsuits. Solution: The public needs to be told that frivolous lawsuits are easily handled by the judges and readily dismissed, without any need for laws restricting access to the courts for any cases; and in fact, the public should know that too often judges also dismiss meritorious cases because the judicial system is not adequate to handle the volume of meritorious cases which the economy needs to be able to resolve business and other disputes quickly and efficiently. To a growing extent the courts are becoming an administrative agency to process some types of lawsuits through the court system as quickly as possible, without any recovery for the plaintiff, but with credit to the judges and courts for one more unit of justice each time a case is dismissed. The public can be educated through an internet website functioning as a specialized trade publication to provide the information which the public needs to be better citizens and jurors. (See discussion below concerning creation and use of internet mailing lists.)
- Economic cases are often long and tedious, with no press interest to alert the jury to the importance of the case. When juries do not understand the importance of a case, and the case is long and tedious, the jury is apt to take the easy way out, by holding for the defendant(s), so that the trial for damages does not have to take place. Solution: The solution to this would be to avoid bifurcating a case (into two trials, the first on liability and the second on damages), or to have a rule and instruct the first jury in a bifurcated trial that they are not to be the jury for the second part of the case.
- The important economic issues are kept from the jury by the nation's press, which wholly disregards most economic lawsuits which could have an impact on the wealth of the major corporations, so that the public does not find out from the press what the issues are. This prevents members of any jury from understanding the importance of a case and contributes to the tedium experienced by the jurors, because they have not been sufficiently educated by the press (speaking for the overly-concentrated economy) to understand the importance of their role as jurors. Solution#1: This is a tough one to solve, but I think it has to be done through one or more internet websites which will add interested persons to website mailing lists and periodically update the growing list of interested persons in the things they should know to be qualified jurors. The site should be self-sustaining by offering products or some service which can show a profit and enable such "profits" to be used for list development, maintenance and use in educating the public about the rights and duties of persons serving on juries. I have several ideas for anyone interested in developing such a site Solution#2: Another thing which should be done is to require(?) or encourage(?) the judge to permit more latitude for the witnesses and attorneys to explain the consequences of the forthcoming verdict to the jury prior to its deliberations. In criminal matters in some courts we permit victims of the family of victims to make statements to the jury, and perhaps we should extend this concept to enable interested persons to make "impact statements" to the jury in civil cases, perhaps at the beginning of the trial (and possibly at the end, as well), to alert the jurors to the importance of their activities in the specific case before them.
- Expert opinions and reports from the economists retained to testify by the defendant major corporations are permitted to testify as to their opinions with too few restrictions. This results in expert testimony in too many cases that is fabricated, unprofessional, dishonest, contrived, and given only because the expert-witness fee is sufficiently high. Solution: Judges should require expert testimony and reports to be more focussed to maintain better control over the substance of the expert reports and testimony, and to not allow testimony which strays beyond the identified issues. I'm not sure if this will work, but it seems to be a start. Perhaps expert reports should be eliminated in antitrust cases (other than as to damages), and instead "impact statements" used to identify the issues without having to spend so much time and money in the battle of experts, which favors the wealth and tends to increase the concentration of our economy. By eliminating expert opinions, the juries will have to rely more on the facts and common sense and less on paid prevaricators.
- Jury Nullification - Juries are not told they have the right to render a just verdict even though it may not adhere to the jury instructions given to them by the judge. See section below on Jury Nullification. Solution: Juries need to be told by the judge that they can render a just verdict even if it seems to be contrary to the judge's jury instructions, and that the judge will decide the matter of law as to whether the jury in fact overstepped its bounds. It's unfair to limit the jury by requiring it to know the law when a just decision might not be rendered by reason of the jury's ignorance of the law.
Jury Nullification - Juries Should Be Told They Have the Right to Render a Just Decision in Spite of the Formal Jury Instructions
The doctrine of "jury nullification" of the judge's formal charges to the jury is something which should be told to the jury. The jury should be told by the judge that the jury is permitted under law (and won't be in contempt of court) if it renders a decision which it feels is just, even if it does not seem (to the jury) to be consistent with the jury instructions given by the judge to the jury.
In other words, a jury should know that it can nullify the judge's instructions by arriving at a verdict which is contrary to the instructions. The jury should be told that in such an instance this will be a matter of law for the judge to handle, whether in fact the jury reached a verdict beyond its authority, and not require the jury to make such a legal decision itself.
By instructing the jury that it can nullify the judge's instructions, the jury is then free to render a just verdict, and let the judge them decide whether the jury verdict will be allowed to stand.
Jury nullification of this type is something which should be made known to the public and prospective jurors, so they can do the right thing when sitting on a jury, according to their decision as to which party should prevail.
For those of you interested in the doctrine of "jury nullification", please read the following quotation from the dissenting decision in United States v. Krzyske, 857 F.2d 1089, 1094; 1988 U.S. App. LEXIS 12757, **15 (6th Cir. 1988):
Defendant also seeks to have us reconsider our earlier decision in light of an affidavit he submits that was obtained after trial from one of the jurors.
At trial, the District Court permitted Krzyske to mention in his closing argument to the jury that the doctrine of jury nullification should apply. The jury subsequently interrupted its deliberations to ask the Court, "What is jury nullification?" The trial court responded:
There is no such thing as valid jury nullification. Your obligation is to follow the instructions of the Court as to the law given to you. You would violate your oath and the law if you willfully brought in a verdict contrary to the law given you in this case. (Emphasis added).
The majority of our Court affirmed, distinguishing between the nullification power a jury "may . . . have . . . to ignore the law," which it recognized, and the duty of the jury to apply the law declared applicable by the judge. Thus, the majority concluded that the jury had no right to an instruction on its power, even upon request. I believed then and I believe [**16] now that the majority's affirmance of the trial judge's action is contrary to one of the most cherished principles embedded in our system of justice.
There is little doubt that juries have the power to "nullify" the law by returning an acquittal "in the teeth of both law and facts." Horning v. District of Columbia, 254 U.S. 135, 138, 41 S. Ct. 53, 65 L. Ed. 185 (1920) (Holmes, J.) (dictum). Although there was a period in the late 19th century when it appeared that the Supreme Court had departed from this ancient principle of our common-law heritage, see Sparf v. United States, 156 U.S. 51, 39 L. Ed. 343, 15 S. Ct. 273 (1895), in this century virtually all courts seem to have returned to the traditional view. See, e.g., Duncan v. Louisiana, 391 U.S. 145, 156, 20 L. Ed. 2d 491, 88 S. Ct. 1444 (1968) ("common-sense judgment of a jury" and "community participation in the determination of guilt or innocence" are "defense against arbitrary law enforcement"); United States v. Dougherty, 154 U.S. App. D.C. 76, 473 F.2d 1113 (D.C. Cir. 1972) (both majority and dissent agreeing that jury has nullification power); see generally Kadish & Kadish, Discretion to Disobey (1973); H. Kalven & H. Zeisel, The American Jury (1966). As the most recent exhaustive review of this subject concludes: [**17] "The only real issue concerning jury nullification is whether or not the jury should be honestly instructed as to its authority. The value of nullification to the legal system no longer appears to be a matter of dispute." Scheflin & Van Dyke, Jury Nullification: The Contours of a Controversy, 43 L. & Contemp. Probs. 51, 113 n. 55 (1980) (hereinafter Jury Nullification).
This is not a case in which it is necessary to decide the broad question of whether a jury, before it retires, should invariably be told of its nullification power, or should be told only in selected instances. This case rather presents the question whether a deliberating jury, itself contemplating the exercise of that power, upon inquiry about its power can be told that to "willfully" use that power would "violate . . . the law."
At the point this issue arose, the power to acquit had passed into the hands of the jury. Even if one were to concede that a jury should not routinely be instructed on nullification before retirement, a different situation altogether is presented when a deliberating jury (or for that matter, a jury at any point) makes a positive inquiry as to its power.
Moreover, in this case the actual [**18] instruction given conveyed a sense of threat to the jurors that a nullification verdict "willfully" taken would "violate . . . the law" and, by implication, invite sanctions.
That threat was contrary to the venerable rule to the contrary established in the London prosecution of William Penn more than three centuries ago. After several months of incarceration, the jurors who had refused to follow a judge's instruction that they convict Penn were vindicated. [*1095] See Bushell's Case, 124 Eng. Rep. 1006 (C. P. 1670); Penn & Mead's Case, 6 Howell's State Trials 951 (London 1816) (1st ed. London 1783). British efforts to avoid colonial juries thereby emboldened constituted one of the grievances that led to the Declaration of Independence. See Jury Nullification, 43 L. & Contem. Probs. at 56-58.
The sworn affidavit of a juror submitted to us now by defendant Krzyske reports the jurors' reaction to the warning given them by the district judge:
. . .
2. On June 25, 1985 we jurors asked the trial judge, Charles W. Joiner, during the first day of deliberations and before any verdicts were returned, the following question:
"WHAT IS JURY NULLIFICATION?"
3. This question was in the form of a note to the judge, and it was asked because we were very inquisitive as to its meaning.
4. When the trial judge responded by saying "There is no such thing as valid jury nullification", we were left very confused.
5. After the trial was over, I learned what jury nullification was because I was still in doubt over its meaning as the trial was concluding.
6. If we were told the truth about jury nullification a different outcome would have resulted in favor of the defendant, Kevin Elwood Krzyske, because I (for one) would have voted for "acquittal" on all counts of the indictment.
In these circumstances, I am reinforced in my belief that the instruction given to the jury deprived the defendant of his Sixth Amendment right to trial by jury. I dissent.
Letting Judges Decide the Factual Issues Is Not the Answer
You might be wondering why not just require judges to decide important economic cases without use of a jury. This would be a bad idea, because one never knows what judge will be available to try a case, and the judge would have little check on his/her predisposition to decide an important economic case along previously-established political lines.
The reason that a jury is useful is that one never knows who is on a jury until the trial begins, and for that reason both sides are often anxious to settle the case (on terms acceptable to both sides) to avoid going before a jury which can be so unpredictable (unless a defendant has already concluded that the defendant can pull the wool over a jury's eyes because the typical jury members are kept in the dark by the nation's monopolized press).
It seems, therefore, that no matter how bad juries are, they should be preserved, and there should be an emphasis by political planners to try to educate the public to doing a better job when becoming a member of a jury. The public needs to know more about the economy and what causes the public to have longer hours and a lower standard of living, so that the jury can put an economic case into a more appropriate perspective.
If you have any ideas on how the jury system can be improved or how the adverse effect of a concentrated economy on the jury system can be counteracted, please contact website editor Carl E. Person at firstname.lastname@example.org, and he will respond to you about your idea.
Carl E. Person, Editor, LawMall, email@example.com
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